State v. Conlon

• Court: Supreme Court of Connecticut
• Writing for the Court: HAMERSLEY, J.
• Citation: 65 Conn. 478,33 A. 519
• Parties: STATE v. CONLON.
• Decision Date: 24 January 1895

33 A. 519
65 Conn. 478

STATE
v.
CONLON.

Supreme Court of Errors of Connecticut.

Jan. 24, 1895.

Appeal from superior court, Tolland county; Prentice, Judge.

William Conlon was convicted of selling without a license, in violation of Pub. Acts 1893, c. 121, and appeals. Reversed.

Charles E. Perkins and Jeremiah J. Desmond, for appellant.

Joel H. Reed, State's Atty., for the State.

HAMERSLEY, J. "An act concerning sales of merchandise by itinerant peddlers" contains the following provisions:

"Section 1. The mayor of any city, the warden of any borough, and the selectmen of any town, may issue a license to such persons as they find proper persons to engage in a temporary or transient business, in one locality, either in a building, tent, or other premises, for the sale of goods, wares and merchandise, * * * In their respective cities, boroughs, or towns, for a term not exceeding one year, upon the applicant paying to such municipal corporation a fee not less than one dollar nor more than one hundred dollars, as the authority issuing such license may direct. * * *

"Sec. 2. Any person engaging in any business mentioned in section one of this act, except in the sale of articles that are the product of a farm or of the sea, without obtaining a license therefor, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than seven dollars nor more than two hundred dollars, or imprisoned not less than thirty days nor more than six months, or both."

Pub. Acts 1893, p. 271.

The state's attorney for Tolland county filed an information charging the defendant with a misdemeanor under this act in the sale of boots and shoes at a store in the city of Rockville. The defendant demurred to

33 A. 520

the information, because the statute is void, as being contrary to the provisions of the constitution of Connecticut and of the constitution of the United States, and to the principles of natural justice. The demurrer was overruled; and the defendant was tried, convicted, and sentenced. This is an appeal from the judgment of conviction; and the only error assigned by the defendant is the action of the superior court in overruling the demurrer.

The legislature has power to require a license for the transaction of any business, either for the purpose of raising a revenue, or for the purpose of regulating the conduct of such business, as public Interests may demand. This power, however, is, in the manner of its exercise, subject to the limitations embodied in the constitution, including in that term the constitution of the United States as well as that of Connecticut. The former, so far as it relates to such question, is in reality a part of the latter, and must be so regarded by this court in determining the validity of any legislative act. The question whether or not a particular law is obnoxious to any such limitation does not depend upon the wisdom of the law. We therefore dismiss as immaterial all considerations urged in argument as to the propriety of this legislation, and consider only the legal effect of the act, and the power of the legislature to enact such a law.

1. What is the legal effect of the act? The validity of the law in this case depends upon its real legal effect, and not merely upon its phraseology. In determining whether any law Invades a right secured by constitutional enactment, the court looks at the essence as well as the form. In re Clark, 65 Conn. 17, 31 Atl. 522. The act is not an exercise of the power of taxation. This is too plain for argument. It is purely a trade regulation; and the crime of which the defendant was convicted consists solely of the violation of such regulation. The power, first, to regulate the conduct of all business, or of any particular business, harmless in its nature, and which every citizen has the right to carry on; and, second, to regulate, even to the extent of prohibition, any business in its nature injurious to the public,— is vested in the legislature in the broadest terms; but the exercise of that power in the two cases is governed by different principles. In the latter case the controlling object is giving to the public that protection from danger which the state is bound to give, and ordinarily the legislature must be the judge of the degree of danger and of the required protection. It may restrict the business by requiring large license fees, or by other protective regulations; and it may restrict the conduct of the business to a limited number of persons, or to persons possessing certain qualifications, to be determined by public officers to whom the administration of the law is given, or, in certain cases, to such persons as these public officers may select; thus treating the persons intrusted with the business as quasi public officers, and authorizing their selection on grounds of special fit ness, similar to those applicable to the appointment of any state officer or agent. The illustrations of such regulations of a business dangerous to the public are familiar, and the cases maintaining the power of the legislature to establish them are too numerous to cite.

But the law in question is not a regulation of a business dangerous to the public, and does not come within the special principles applicable to such regulations. It relates to all business '"for the sale of goods, wares and merchandise," to the bread and meat essential to the support of life, and to every commodity a human being has need of. The only distinction made by the law is that between a business that is temporary and transient and all other business. It does not define a "temporary or transient" business. Such phrase has no technical legal meaning. The natural meaning of the words as generally understood does not furnish a definite guide to what the statute permits and what it prohibits. Its validity might perhaps be questioned on the ground that the language used is too vague to constitute and define a crime, but that question was not discussed in argument. The defendant is punished for selling boots and shoes in the conduct of a temporary and transient business. There is nothing in the nature of such business more dangerous to the public when called "temporary" than if called "permanent." There is no distinction as to public danger between a boot and shoe business conducted by a man for an indefinite time, and the same business conducted after his death, by his executor in the settlement of his estate, for a short and definite time. The statute does not relate to any temporary business involving dangers peculiar to itself. It draws no line of distinction except between a business that is...