Levy v. The State, 20,082

Docket Nº20,082
Citation68 N.E. 172, 161 Ind. 251
Case DateOctober 09, 1903
CourtSupreme Court of Indiana

68 N.E. 172

161 Ind. 251

The State

No. 20,082

Supreme Court of Indiana

October 9, 1903

From Whitley Circuit Court; J. W. Adair, Judge.

Abe Levy was convicted of transacting business as a transient merchant, without a license, and he appeals.


T. R. Marshall, W. F. McNagny and P. H. Clugston, for appellee.

C. W. Miller, Attorney-General, C. C. Hadley, W. C. Geake, L. G. Rothschild, W. H. H. Miller, J. B. Elam, J. W. Fesler and S.D. Miller, for State.

OPINION [68 N.E. 173]

[161 Ind. 252] Dowling, J.

An information filed against the appellant charged him with a violation of the act of March 11, 1901 (Acts 1901, p. 466, §§ 7231a-7231i Burns 1901) prohibiting [161 Ind. 253] the transaction of business by any transient merchant without license. He was found guilty, and judgment was rendered upon the finding. The validity of the statute is brought in question, and duly presented by motions to quash the information and for a new trial.

The objections taken to the act, as stated by counsel for appellant, are: (1) That it is not a constitutional exercise of legislative authority; (2) that it violates the provisions of the fourteenth amendment of the Constitution of the United States, by denying to the transient merchant the equal protection of the laws; (3) that it violates § 19, article 4, of the state Constitution, more than one subject being embraced in the act; (4) that it contravenes § 23, article 1, of the state Constitution, by granting to one class of citizens privileges and immunities which upon the same terms do not equally belong to all citizens; (5) that it conflicts with § 21, article 1, of the state Constitution by authorizing the taking of the property of the citizen without due compensation; (6) that it is a special law for the support of the common schools, and therefore void under § 22, article 4, of the Constitution; (7) that it violates § 1, article 10, of the Constitution, which requires that taxation shall be uniform and equal, and that no property shall be exempt therefrom, except such as is used for municipal, educational, literary, scientific, religious, or charitable purposes; (8) that it violates § 1, article 1, of the Constitution which guarantees to every citizen of the State life, liberty, and the pursuit of happiness; and (9) that the act is void because it imposes double taxes.

It appeared upon the trial, among other facts, that the appellant was a resident of the city of Ft. Wayne, in this State, where he carried on a general clothing business. He rented a room in Churubusco, a town of 1,200 inhabitants, in said Whitley county. He stated that he intended to occupy it for a few days only. He put no furniture in the room, but placed therein a stock of clothing and notions. [161 Ind. 254] He did not apply for nor receive a license to transact business in the said town or county as a transient merchant. He exhibited his goods for sale, and sold the merchandise mentioned in the information at the time and place and to the person and for the price named. The population of Whitley county was less than 20,000.

The provisions of the act of March 11, 1901, supra, to be considered upon this appeal, are: Section 1, which declares that it shall be unlawful for any transient merchant to engage in or transact business as such merchant without having first obtained a license as required by the statute; § 2, prescribing the mode of application for the license, the fees to be paid therefor, and the mode of issuing the same; § 4, which fixes the penalty for a violation of the act; § 6, defining the term transient merchant; § 7, directing that all license fees collected under the act be paid into the common school fund of the State; and § 8, which exempts from the operation of the statute commercial travelers, sales by sample for future delivery, hawkers and peddlers, sheriffs, constables, and other public officers selling goods according to law, and assignees and receivers appointed in this State.

Many of the points of objection to the statute made by counsel are merely stated, but not discussed, and we are left to conjecture the reasons on which they are supposed to rest. The importance of the main question, however, has led us to make a careful examination of all the objections suggested, and of the authorities bearing upon each of them. The case made by the information and the proof is that the appellant, being a transient merchant, within the meaning [68 N.E. 174] of the act of March 11, 1901, supra, as such merchant sold an article of merchandise as charged in the information, not being licensed so to do, and in violation of the statute. If the statute is valid, the conviction was proper. The only question is the constitutionality of the act.

[161 Ind. 255] The general principles by which courts are governed in determining the validity of acts of the legislature are too familiar and well established to require a citation of the cases in which they have been announced or followed. The presumption is generally in favor of the validity of the statute, and an act will never be stricken down by the courts unless the grounds of its invalidity are clearly apparent. In doubtful cases the statute must be upheld. Where the power to enact a law exists, the legislative discretion concerning the time, the circumstances, and the situation calling for the exercise of such power is not subject to review or control by the courts. Where a power is granted or reserved to the legislature, the grant or reservation carries with it the right to use the necessary means to effect the object of such grant or reservation. The authority of the legislature to determine what things are injurious to the interest and welfare of the public, and what measures are necessary for the safety, comfort, and well-being of the citizens of the State, is extensive and far-reaching and, as has often been said, is incapable of strict definition or limitation. A legislative declaration that an evil exists, or that injury is likely to result to the public from particular trades or occupations unless restrained or regulated by law, is entitled to the highest respect by the courts, and should never be disregarded unless clearly in conflict with some provision of the Constitution. As was said in Fry v. State, 63 Ind. 552, 559: "It is the settled doctrine of the decisions of this court, that 'The legislative authority of this State is the right to exercise supreme and sovereign power, subject to no restrictions except those imposed by our own Constitution, by the federal Constitution, and by the laws and treaties made under it. This is the power under which the legislature passes all laws.' Beauchamp v. State, 6 Blackf. 299; Doe v. Douglass, 8 Blackf. 10; Lafayette, etc., R. Co. v. Geiger, 34 Ind. 185. It must appear very [161 Ind. 256] clearly, that the legislation is in conflict with some express provision of the Constitution, or the statute will be upheld." On the other hand, the authority of the legislature is not supreme, but must be exercised in subordination to the rules of the federal and state Constitutions. The personal liberty of the citizen is the especial object of the care and protection of the Constitution, and it can be abridged or taken away only when the public welfare requires such interference with it.

The first objection, viz., that the act is not a constitutional exercise of legislative authority, is too vague and indefinite to raise any question. The particular provision of the Constitution supposed to be violated should be pointed out.

The second is without merit. The act does not deny to the transient merchant the equal protection of the laws. Duncan v. Missouri, 152 U.S. 377, 14...

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  • Levy v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 9 Octubre 1903
    ...161 Ind. 25168 N.E. 172LEVYv.STATE.Supreme Court of Indiana.Oct. 9, Appeal from Circuit Court, Whitley County; Joseph W. Adair, Judge. Abe Levy was convicted of transacting business as a transient merchant without a license, and appeals. Affirmed. [68 N.E. 173]Marshall, McNagny & Clugston, ......

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