State v. Bornstein

• Decision Date: 02 November 1910
• Parties: STATE v. BORNSTEIN.
• Court: Maine Supreme Court

78 A. 281

107 Me. 260

STATE

v. BORNSTEIN.

Supreme Judicial Court of Maine.

Nov. 2, 1910.

Report from Supreme Judicial Court, Androscoggin County, at Law.

Jacob Bornstein was convicted of violating an ordinance of the city of Auburn, and appealed to the Supreme Judicial Court. Facts stipulated, and case reported to the law court. Defendant discharged.

The defendant was arrested on a warrant issued by the municipal court of Auburn for an alleged violation of an ordinance of the city of Auburn, relating to the sale of "foreign-grown fruit from any vehicle in any public street or place" in said city. The defendant pleaded not guilty, but upon hearing was found guilty and fined $10 and costs. The defendant then appealed to the Supreme Judicial Court. An agreed statement of facts was filed in the appellate court, and the case then reported to the law court for determination.

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

Frank A. Morey, Co. Atty., for the State.

H. E. Holmes, for defendant.

WHITEHOUSE, J. This is a complaint against the defendant for a violation of that part of one of the ordinances of the city of Auburn which provides that "no person * * * shall sell or offer for sale any foreign grown fruit from any vehicle in any public street or place of the city" unless by virtue of a written permit so to do from the board of mayor and aldermen or from some person by them duly authorized to grant the same, and that "any person" so licensed shall pay as a fee therefor the sum of $20, the same to be paid to the city treasurer for the use of the city.

The case is reported to the law court upon the agreed statement of facts, in which it is stipulated that, if the foregoing ordinance is constitutional and valid, judgment shall be rendered for the state; otherwise, judgment to be rendered for the defendant.

It appears from the agreed statement of facts that the defendant was engaged in the business of peddling from his cart in the streets of Auburn certain foreign-grown fruit, to wit, bananas, without having obtained the permit or license mentioned in the foregoing ordinance. Upon a complaint charging him with a violation of the ordinance, he was found guilty by the judge of the municipal court and sentenced to pay a fine of $10 and costs. From this judgment and sentence the defendant appealed to the Supreme Judicial Court.

It is contended in behalf of the defendant that the foregoing ordinance is invalid for two reasons: First, because it discriminates in terms against foreign-grown fruit, and is therefore an attempt on the part of the city to regulate foreign commerce; and, second, because it is in effect, if not in terms, an attempt on the part of the city to raise revenue from an occupational tax, by the exercise of a power not given to the city, either by the charter or by the general law.

It is provided by the Constitution of this state (article 4, pt. 3, § 1), that "the Legislature * * * shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state, not repugnant to this Constitution nor that of the United States." And by section 93 of chapter 4 of the Revised Statutes cities and towns are authorized to make and enforce ordinances for the numerous purposes specified in the 13 paragraphs comprised in that section. But it is manifest, upon an examination of these several provisions of the statute, that the ordinance in question, prohibiting the sale of...