State v. Brown

• Decision Date: 10 December 1936
• Parties: STATE v. BROWN.
• Court: Maine Supreme Court

188 A. 713

STATE

v. BROWN.

Supreme Judicial Court of Maine.

Dec. 10, 1936.

Report from Superior Court, Hancock County.

James Brown was convicted of peddling and vending on the streets certain farm and orchard products not produced by himself, and he appeals.

Remanded to superior court for entry of nolle prosequi.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Percy T. Clarke, Co. Atty., of Ellsworth, for the State.

Blaisdell & Blaisdell, of Ellsworth, for defendant.

STURGIS, Justice.

The respondent was convicted in the Bar Harbor municipal court on a complaint charging that, without a license from the municipal officers and in violation of the local ordinance, he peddled and vended on the streets of Bar Harbor certain farm and orchard products not produced by himself. On appeal, the case is reported to the Law Court on an agreed statement with a stipulation that, if upon the record the respondent has committed an offense, judgment shall be rendered for the State, otherwise a nolle prosequi is to be entered. It is agreed that all formal requirements of the law were complied with in the passage of the ordinance. The respondent admits that he committed the acts as charged in the complaint. The validity of the ordinance only is in issue.

Municipal corporations are authorized by Revised Statutes, chap. 5, § 136, to pass ordinances "not inconsistent with law" for the purposes and with the limitations there defined. Amendments adding paragraph 14 to that general law were enacted in chapter 247, Pub.Laws 1931, and in chapter 158, Pub.Laws 1935, giving towns, cities, and village corporations power to pass bylaws and ordinances relating to hawkers and peddlers. The purposes for which such by-laws or ordinances may be passed and the limitations thereon as there defined and now in force read:

"XIV. For regulating and controlling the business of hawking and peddling of goods, wares and merchandise at retail within their limits, for the issuing by their municipal officers of municipal licenses and the imposing of license fees therefor.

"This paragraph shall not apply to commercial agents or other persons selling by samples, lists, catalogues or otherwise, goods, wares or merchandise for future delivery, persons selling fish, or persons selling farm, dairy or orchard products, of their own production, and persons selling bark, wood or forest products and persons selling newspapers or religious literature."

Effective as of July 15, 1935, a date when chapter 158, Pub.Laws 1935, was in force, the municipal authorities of the town of Bar Harbor, by way of amendment to their existing by-laws, passed the following bylaw:

"Section 4A. No person, firm or corporation, without a license from the Municipal Officers of the Town of Bar Harbor, shall hawk, peddle or vend farm, dairy or orchard products on the streets of the Town of Bar Harbor, unless such person, firm or corporation so hawking, peddling or vending farm, dairy or orchard products, shall have produced them himself.

"Licenses for hawkers, peddlers and vendors, under this ordinance may be issued by the Selectmen of the Town of Bar Harbor, upon proper application, in writing therefor, at the rate of $15.00 a day for the time the license is granted; but no license, under this ordinance, shall be issued unless and until said applicant shall first furnish a bond in the sum of $500.00 approved by the Board of Selectmen of the Town of Bar Harbor that he will not violate any of the provisions of this ordinance.

"Any person, firm or corporation violating any of the provisions of this ordinance shall upon conviction forfeit and pay a fine of not more than fifteen dollars ($15.00) for each offense, and not more than fifteen dollars ($15.00) for every day thereafter, so long as the said violation exists, and a fine of not more than one hundred dollars ($100.00) for subsequent violations.

"This ordinance shall become effective July 15, 1935."

It is agreed by counsel on both sides that this by-law was passed pursuant to the authority conferred upon municipalities by paragraph 14, § 136, chap. 5, R.S., as amended by chapter 158, Pub.Laws 1935. The respondent attacks the ordinance on the grounds: (1) That it does not conform with the express grant of authority for its passage as set forth in the statute; and (2) that by reason of the license fees exacted and the penalties provided in the ordinance, the regulation is unreasonable and oppressive. The State, on the brief, does not refute the claim that the ordinance goes beyond the authority expressly granted to the town by the statute and naively admits that the purpose of the ordinance "is to restrict and not to regulate."

It is an accepted rule that when a municipal corporation is empowered by express grant to make by-laws or ordinances in certain cases and for certain purposes, its power of legislation is limited to the cases and objects specified. Ex parte Mayor, etc., of Anniston, 90 Ala. 516, 7 So. 779; Mernaugh v. Orlando, 41 Fla. 433, 27 So. 34; Huesing v. Rock Island, 128 Ill. 465, 21 N.E. 558, 15 Am.St.Rep. 129; State v. Butler, 178 Mo. 272, 77 S.W. 560; State v. Ferguson, 33 N.H. 424; Dillon, Mun. Corp. (5th Ed.) vol. 2, § 586; 43 Corpus Juris, 520. And it is held that if a by-law or ordinance as drawn is outside the scope of the grant and exceeds the powers to legislate conferred upon the municipality, it is invalid. Newton v. Belger, 143 Mass. 598, 10 N.E. 464.

The ordinance, violation of which is here charged, contains provisions entirely outside the authority conferred upon municipalities by paragraph 14, § 136, chap. 5, R.S., as now amended. The statute authorizes the passage of ordinances "for regulating and controlling the business of hawking and peddling of goods, wares and merchandise at retail," and no more. In the original amendment by chapter 247, Pub. Laws 1931, the regulation and control of...