State Ex rel. Mudeking v. Parr
| Decision Date | 26 November 1909 |
| Docket Number | 16,270 - (30) |
| Citation | 123 N.W. 408,109 Minn. 147 |
| Parties | STATE ex rel. F. R. MUDEKING v. W. R. PARR |
| Court | Minnesota Supreme Court |
F. R Mudeking having been arrested and imprisoned for an alleged violation of chapter 248, Laws 1909, obtained from the district court for Winona county a writ of habeas corpus directed to the sheriff of that county, on the ground that his imprisonment was unlawful and that chapter 248 was unconstitutional. The matter was heard before Snow, J., who ordered the release of relator. From that order, defendant appealed. Affirmed.
Act Unconstitutional -- Class Legislation.
Chapter 248, Laws 1909, entitled "An act to tax the occupation of and to license hawkers, peddlers and transient merchants and defining said occupations," is unconstitutional as a police regulation, being class legislation, and is prohibited by sections 33 and 34, article 4, of the constitution.
Act Unconstitutional -- Unequal Taxation.
The act is also unconstitutional as a tax measure, in that the tax imposed on the occupation of peddling does not fall equally and apply uniformly on all members of the class, as required by the amendment to article 9 of the constitution.
George T. Simpson, Attorney General, Earl Simpson, County Attorney, O'Brien & Stone and Young & Stone, for appellant.
Webber & Lees, for respondent.
A. J. Daley, by consent, filed a brief in favor of relator.
Relator, having been arrested for violating the provisions of chapter 248, p. 293, Laws 1909, sued out a writ of habeas corpus, alleging that his imprisonment was unlawful for the reason that the law was unconstitutional.
Section 1 defines hawkers and peddlers as follows: "Every person traveling from house to house for the purpose of offering for sale any article of merchandise, either for immediate or future delivery or according to sample is hereby declared to be a hawker and peddler." The same section defines a transient merchant to be a person, corporation, or copartnership exposing and offering for sale at retail in any city or village, goods, wares, and merchandise, unless the carrying on of such business is in pursuance of an intention to maintain and carry on the same permanently.
Section 2 provides how a license may be taken out by hawkers and peddlers, and establishes the rate to be paid upon the basis of $50 for a wagon or other vehicle drawn by two or more horses, or other beasts of burden, or propelled by any mechanical power, $25 for a wagon or other vehicle drawn by one horse or other beast of burden, and $10 when carrying on the business by means of a push or hand cart, or on foot by means of pack, basket, or other way of carrying merchandise on foot.
Section 4 provides that a transient merchant is required to pay into the state treasury the sum of $150 upon application for a license, and by section 5 no person, copartnership, firm, or corporation shall carry on the business of transient merchant in more than one place in this state at the same time.
Section 6 reads: "Nothing in this act contained shall be construed as prohibiting or in any way limiting or interfering with the right of any city, village or other municipal corporation or governmental subdivision of the state to regulate or license the carrying on within such municipality of the business of hawker or peddler or transient merchant in any case where authority has been or shall hereafter be conferred upon it so to do, but the requirements of this act shall be in addition thereto."
Section 9: "The provisions of this act shall not apply to persons engaged in interstate or foreign commerce, nor to the sale of articles which at the time of such sale are the subjects of interstate or foreign commerce, nor to the salesmen of wholesale merchants or manufacturers in selling to retail merchants, nor to the solicitation by permanent merchants or their employees of orders from customers resident in the same or the adjoining county as such permanent merchant, nor to any sale made by virtue of any judgment, order or process of any court or upon the foreclosure of any mortgage or pursuant to any law of this state or of the United States, or in the enforcement of any contract right or lien, nor to the sale by any individual of any article grown [or] produced by him."
Section 10: "No license under this act shall be required of any person for carrying on his business or calling in any city of this state having a population of 50,000, or over, when he has been duly licensed thereto by such city."
At the time of the passage of this act it had been held in State v. Wagener, 69 Minn. 206, 72 N.W. 67, 38 L.R.A. 677, 65 Am. St. 565, that the distinction attempted to be made by chapter 107, p. 192, Laws 1897, between peddling by any manufacturer, mechanic, nurseryman, farmer, and butcher, and the peddling of the same article by the purchaser from such parties, did not constitute a proper basis for classification. It had also been decided in the case of City of St. Paul v. Briggs, 85 Minn. 290, 88 N.W. 984, 89 Am. St. 554, that the common council of the city of St. Paul had no authority to prevent the agent of a wholesale dealer from selling and delivering goods to dealers only. And in State v. Jensen, 93 Minn. 88, 100 N.W. 644, it had been decided that an ordinance of the city of Minneapolis, requiring peddlers to take out a license, applied to farmers and producers growing and selling their own produce, as well as to peddlers who purchased their stock.
The constitutional amendment (section 18, art. 1) had also been adopted. It reads: "Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor."
Chapter 248, Laws 1909, was doubtless drawn with reference to these decisions and the amendment, and, while objections heretofore under consideration may have been cured, new features were introduced, which present a new phase of the subject of classification. The subject-matter of the act is divided into three heads: Hawkers and peddlers, transient merchants, and permanent merchants. As stated in City of St. Paul v. Briggs supra, a peddler is one who carries his merchandise with him, traveling from place to place and from house to house, exposing his good for sale and selling them. The 1909 act declares a person to be a hawker or peddler who travels from house to house for the purpose of selling by sample, or for future delivery. An actual sale is not necessary. It is not clear, from the language of section 1, that it was intended to do away with the itinerant element of the peddling business, and to make the law apply to all persons who take orders from house to house, including merchants who have fixed places of business. If no change was made in this respect, then section 1 defines a hawker or peddler as follows: (1) He has no fixed place of trade, but travels from place to place and from house to house. (2) He is a hawker or peddler, although he sells by sample, and does not carry his wares with him. (3) He is a hawker and peddler, even if he does not make an immediate sale, but enters into an executory contract for a future sale for future delivery. Accepting this construction, is the classification...
To continue reading
Request your trial
-
Ex parte Byles
... ... of the State for regulation; (2) on the power of taxation for ... revenue. 179 U.S ... ...