Smith v. Farr

• Decision Date: 04 October 1909
• Citation: 46 Colo. 364,104 P. 401
• Parties: SMITH v. FARR.
• Court: Colorado Supreme Court

104 P. 401

46 Colo. 364

SMITH v. FARR.

Supreme Court of Colorado, En Banc

October 4, 1909

Error to District Court, Huerfano County; Henry Hunter, Judge.

Habeas corpus by Ira O. Smith against J. B. Farr. Judgment remanding petitioner to custody, and he brings error. Reversed and remanded, with directions.

The question presented is the constitutionality of the itinerant vendors' act (Sess. Laws 1905, p. 274 et seq., c. 114; Rev. St. 1908, § 3563 et seq.). The title of the act is as follows: 'An act to prevent and punish fraud in sales of manufactured goods, wares and merchandise by 'itinerant vendors,' and to regulate such sales.' The following are the sections of the act involved:

'Section 1. The term 'itinerant vendor,' for the purposes of this act, shall mean and include any person, either principal or agent, who engages in either a temporary or transient business, in this state, either in one locality or in traveling about the country, or from place to place selling manufactured goods, wares or merchandise, and it shall include peddlers and hawkers, and also those who, for the purpose of carrying on their temporary or transient business, hire, lease or occupy a building, structure tent, car, boat, vehicle, store-room or place of any kind for the exhibition or sale of any manufactured goods, wares or merchandise.

'Sec 2. The provisions of this act shall not apply to commercial travelers or agents selling to merchants in the usual course of business, and they shall not apply to the sale of goods, wares or merchandise in original packages from other states as permitted by the laws of the United States applicable to interstate commerce between the states; and provided further, that the provisions of this act shall not apply to the sale of books, papers or school supplies, garden truck or farm produce.

'Sec. 3. Except as permitted by the preceding section of this act, it shall not be lawful for any person to be engaged in any manner in the business of an 'itinerant vendor' as defined by section 1 of this act, unless such person shall be duly licensed so to do under the provisions of this act.'

Section 4 provides that the county clerk and recorder shall grant a license to any person making due application therefor to engage in the business of an itinerant vendor, and prescribes the steps the applicant must take to secure such license.

By section 5 a graduated scale of license fees is provided, ranging from $5 to $250, and regulated according to the manner the vendor travels in the county in which he engages in business. This section further provides a license fee as follows: 'For each itinerant vendor doing business in any building, structure, tent, etc., two hundred and fifty dollars; and for each assistant to any itinerant vendor in any county, there shall be paid the sum of twenty-five dollars.'

By section 6 the term of the license is fixed at one year.

By section 12 it is provided: 'Every itinerant vendor who sells or exposes for sale, either at public or private sale, in any county in this state, any manufactured goods, wares or merchandise, without first having procured a license from the county in which he sells or exposes for sale such manufactured goods, wares or merchandise, as provided for in this act * * * shall be punished by fine of not less than $10 and not more than $100, or by imprisonment in the county jail for a period of not less than 10 or more than 90 days, or by both such fine and imprisonment.'

By section 16 of the act jurisdiction is conferred upon justices of the peace to hear and determine all criminal proceedings arising under the act.

Plaintiff in error was arrested on a warrant issued by a justice of the peace of Huerfano county for a violation of the provisions of the act and taken into custody by the sheriff. He thereupon applied to the district court for a writ of habeas corpus, which was granted. At the hearing the only question raised was the constitutionality of the act in question, as presented by the following agreed statement of facts: 'The petitioner, Ira O. Smith, is a citizen and resident of the state of Washington, and is a commercial traveler employed as a salesman on a salary, and not a commission, by the Spaulding Manufacturing Company, whose factory and principal place of business is situated in Grinnell, Poweshiek county, Iowa, said Spaulding Manufacturing Company being a copartnership, all the members of which are citizens and residents of the state of Iowa; that while acting as such agent and salesman, and in no other capacity, said Ira O. Smith did on or about June 27, 1907, sell and deliver a buggy or vehicle to J. T. Hudson, in Huerfano county, Colo., and received a consideration therefor; that such vehicle was the property of said Spaulding Manufacturing Company, of Grinnell, Iowa, and was sold exclusively for and on behalf of said Spaulding Manufacturing Company; that such vehicle was sent by said Spaulding Manufacturing Company from its factory in Grinnell, Iowa, to the state of Colorado for the purpose of being sold, and for no other purpose; that such vehicle was not out of the possession of the Spaulding Manufacturing Company or its agents from the time of its receipt by them within the state of Colorado, until the same was sold as aforesaid; that such purchaser, J. T. Hudson, was and is not a merchant, but was and is a farmer, who purchased such vehicle for his own use; that neither the said Ira O. Smith nor said Spaulding Manufacturing Company has a fixed or permanent place of business within the state of Colorado.' It was further stipulated that petitioner had not complied with the terms of the itinerant vendors' act, and did not have a license as thereby required.

The district court held the act valid, and remanded the petitioner to the custody of the sheriff, and the former has brought that judgment to this court for review.

J. C. Helm, Arthur C. Lyon, Chas. H. Haines, and Haines & Kelly, for plaintiff in error.

Wm. H. Dickson, Atty. Gen., S. H. Thompson, Jr., Asst. Atty. Gen., John T. Barnett, Atty. Gen., and James M. Brinson, Deputy Atty. Gen., for defendant in error.

GABBERT, J. (after stating the facts as above).

Two propositions advanced by counsel for plaintiff in error in support of their contention that the statute in question is unconstitutional will be considered: (1) That it undertakes to regulate or impose a burden on interstate commerce; (2) that it is discriminatory.

1. Previous to the adoption of the federal Constitution, the Articles of Confederation allowed too much sovereign power to be exercised by the states, and too little by Congress. Each state was independent of the other, free to legislate with respect to its own affairs as it saw fit, and pursue that course which its own selfish aims inspired. As might have been expected, the states were regulating commerce as between each other by legislation, the purpose of which was to give the citizens and products of the states passing such laws an advantage over the citizens and products of every other. This condition of affairs was largely responsible for the calling of the convention to revise the Articles of Confederation. Speaking on this subject, and the necessity of the control of interstate commerce by Congress Chief Justice Marshall, in one of the early cases involving the power of the states to regulate interstate commerce, said: 'It may be doubted whether any of the evils proceeding from the feebleness of the federal government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, a matter of surprise that the grant shall be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states. To construe the power so as to impair its efficacy would tend to defeat an object in the attainment of which the American public took--and justly took--that strong interest which arose from a full conviction of its necessity.' Brown v. Md., 12 Wheat. 436, 6 L.Ed. 678. Profiting by experience, and perceiving the necessity for the control of interstate commerce by the national Congress, there was incorporated into the federal Constitution these plain and comprehensive provisions: Congress shall have power 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' Article 1, § 8. 'No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.' Article 1, § 10. Under these provisions it has been universally held that the Constitution of the United States confers upon Congress the sole power to regulate commerce among the several states. Stockard v. Morgan, 185 U.S. 27, 22 S.Ct. 576, 46 L.Ed. 785; Caldwell v. N. C., 187 U.S. 622, 23 S.Ct. 229, 47 L.Ed. 336; Leloup v. Port of Mobile, 127 U.S. 640, 8 S.Ct. 1383, 32 L.Ed. 311; Railroad Co. v. Husen, 95 U.S. 465, 24 L.Ed. 527; Brown v. Md., supra; Robbins v. Shelby Co. Taxing District, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694; Brennan v. Titusville, 153 U.S. 289, 14 S.Ct. 829, 38 L.Ed. 719; Norfolk & Western Ry. Co. v. Sims, 191 U.S. 441, 24 S.Ct. 151, 48 L.Ed. 254; In re Spain (C. C.) 47 F. 208, 14 L.R.A. 97; In re Nichols (C. C.) 48 F. 164; Ex parte Loeb (C. C.) 72 F. 657; Lyng v. Michigan, 135 U.S. 161, 10 S.Ct. 725, 34 L.Ed. 150; Asher v. Texas, 128 U.S. 129, 9 S.Ct. 1, 32 L.Ed. 368; French v. State, 42 Tex. Cr. R. 222, 58 S.W. 1015, 52 L.R.A. 160; State v. Willingham, 9 Wyo. 290, 62 P. 797, 52 L.R.A. 198, 87 Am.St.Rep. 948; Ames v. People, 25 Colo. 508, 55 P. 725; Guy v. Baltimore, 100 U.S. 434, 25 L.Ed....