State ex rel. Luria v. Wagener

• Decision Date: 08 July 1897
• Docket Number: 10,674--(244)
• Citation: 72 N.W. 67,69 Minn. 206
• Parties: STATE OF MINNESOTA ex rel. PETTER LURIA v. JOHN WAGENER
• Court: Minnesota Supreme Court

72 N.W. 67

69 Minn. 206

STATE OF MINNESOTA ex rel. PETTER LURIA v. JOHN WAGENER

Nos. 10,674--(244)

Supreme Court of Minnesota

July 8, 1897

Writ of habeas corpus to defendant, as sheriff of Ramsey county. Relator discharged.

Stevens O'Brien, Cole & Albrecht, for relator.

Hawking and peddling without a license is forbidden by Laws 1897, c 107, but section 5 excepts the manufacturer, with some others, from the application of the law. No such classification of hawkers and peddlers can be made, for no arbitrary distinction between different kinds or classes of business can be sustained, the conditions being otherwise similar. State v. Sheriff, 48 Minn. 236. See, also State v. Bease, 46 Minn. 138; Temple v Sumner, 51 Miss. 13; Chaddock v. Day, 75 Mich. 527; City v. Gugenheim, 61 Ill.App. 374.

H. W. Childs and George B. Edgerton, for respondent.

Exemptions like those expressed in section 5 have long been indulged in and are sustained by the courts of this country. People v. Sawyer, 106 Mich. 428; Seymour v. State, 51 Ala. 52; State v. Morehead, 42 S.C. 211; Com. v. Crowell, 156 Mass. 215; Village v. Fisher, 140 N.Y. 187.

CANTY J. MITCHELL, J., concurring.

OPINION

CANTY, J.

Relator was by a justice of the peace convicted of peddling goods without a license in the town of Rose, in Ramsey county, contrary to chapter 107, Laws 1897, which provides:

"Section 1. No person shall hereafter be allowed to sell or expose for sale any personal property within any organized township within the state of Minnesota, as a peddler or hawker, without first obtaining a license therefor from the proper authorities of said organized township, in the manner hereinafter prescribed.

"Sec. 2. The township supervisors of every organized township in the state of Minnesota are hereby authorized and empowered to establish rates and prescribe rules for the issuing of licenses to hawkers and peddlers within the limits respectively of such organized township. The fee for such license in any organized township shall not exceed thirty (30) dollars per annum."

Section 3 provides that the town clerk may issue the license, and section 4 provides that, on conviction of peddling without a license issued as provided by the act, a fine of not less than $ 10, or more than $ 100, or imprisonment not exceeding 90 days, may be imposed.

Section 5 reads as follows:

"Sec. 5. This act shall not be construed to apply to any person traveling from place to place, soliciting orders for goods, wares, or merchandise, with or without samples, where such goods, wares or merchandise are to be delivered by or through a person or corporation other than the one soliciting such orders; neither shall it be construed to prevent the sale accompanied by delivery of goods, wares, or merchandise to retail dealers; nor shall it be construed to apply to train boys; nor shall it be construed to prevent any manufacturer, mechanic, nurseryman, farmer, butcher, fish or milk dealer, selling, as the case may be, his manufactured articles, or products of his nursery or farm, or his wares, as a fish or milk dealer or butcher, either by himself or employee."

Relator was sentenced to imprisonment on such conviction, and sued out a writ of habeas corpus, claiming that this act is unconstitutional and void, for two reasons: (1) It contravenes sections 33 and 34 of article 4 of the constitution, prohibiting partial class legislation; and (2) it permits an excessive and unreasonable amount of money to be demanded as a license fee. We shall consider the first ground only.

We are of the opinion that the act is unconstitutional on the first ground. Section 33, aforesaid, provides:

"In all cases when a general law can be made applicable, no special law shall be enacted; and whether a general law could have been made applicable in any case, is hereby declared a judicial question, and, as such, shall be judicially determined without regard to any legislative assertion on that subject. * * *"

Section 34 provides:

"The legislature shall provide general laws for the transaction of any business that may be prohibited by section one [section 33] of this amendment, and all such laws shall be uniform in their operation throughout the state."

This court has often held that, under these sections, the legislature must treat alike all who are in the same condition, must make the law apply to a whole class, and cannot make a law which applies only to a part of a class. And the class must be selected on some distinction, or be defined by some principle, which might naturally or properly distinguish it from all other classes.

We are of the opinion that these rules have not been complied with in the framing of this statute. It was proper to leave out of the class of persons to whom the act should apply several of the classes of persons excepted by section 5 thereof. But other persons are excepted by section 5 who cannot be left out of the...