State v. Cullum
| Decision Date | 25 November 1929 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. CULLUM. |
Appeal from City Court of Waterbury; John F. McGrath, Judge.
Information against Lawrence Cullum for selling and offering for sale in public market place fruit, produce, and vegetables not grown by accused in violation of an ordinance, brought to the city court of Waterbury, where a demurrer to the information was overruled and case tried to the court and defendant convicted, from which he appeals. No error.
John F Tobin and Thomas F. Devine, both of Waterbury, for appellant.
Charles O'Connor and Edward J. McDonald, both of Waterbury, for the State.
Argued before WHEELER, C.J., and MALTBIE, HAINES HINMAN, and BANKS, JJ.
The accused is charged with the violation of a provision of an ordinance of the city of Waterbury; the ordinance is described in the complaint to the extent of giving the date and body by whom it was passed and adopted, together with the fact and date of the mayor's approval. The parties have assumed that the entire ordinance was before us; although it does not appear in the record, we shall so treat it. The ordinance is entitled an ordinance relative to a wholesale and retail market. It establishes such a market in the city of Waterbury, places it under the control of the board of public works, and vests in them the power to adopt rules and regulations governing the market. It provides for the care inspection, and police supervision of the market and for its division into stalls to be rented to occupants on stated terms and which shall be assigned to " the eligible person first applying therefor to the market master." Section 2 provides: " Goods may be offered for sale in this market, only by producers who have grown and brought them to market," etc. Section 10 provides: " Any person violating any of the provisions of this ordinance shall be fined, upon conviction, in any sum not less than one dollar and not more than one hundred dollars."
The information charges the accused with violating section 2, which we have quoted, by selling and offering for sale in the public market place of the city of Waterbury, fruit, produce, and vegetables not grown by him.
The court overruled the demurrer of the accused to the information, inquired into the facts, found the accused guilty, and sentenced him to pay a fine and the costs of the prosecution. The appeal is from the overruling of the demurrer.
The first two grounds of the demurrer raise the single point that the allegations of the information are too vague to constitute a crime. It is urged that it is impossible to determine the scope of the meaning of the terms of section 2, " Goods may be offered for sale in this market, only by producers who have grown and brought them to market." The language seems to us free from ambiguity. One of the ordinary dictionary meanings of a " producer" is one who grows agricultural products. " Goods" are used in the sense of agricultural products. " Goods of this character," this section provides, may be offered for sale in this market by the growers of agricultural products who have grown and brought their agricultural products to this market.
The two remaining grounds of demurrer attack the constitutionality of the ordinance because of its unreasonableness and because it seeks to prevent the accused from engaging in an ordinary lawful business contrary to the provisions of the Constitutions of the State of Connecticut and that of the United States. The city of Waterbury by its charter was authorized through its board of aldermen and mayor to adopt the ordinance in question. That the establishment of public markets and the regulation of them and of the sale of food therein are measures for the public welfare and reasonable exercises of the police power are too clear to make needful their demonstration. Lamar v. Weidman, 57 Mo.App. 507; First Municipality v. Cutting, 4 La. Ann. 335.
The sale of agricultural products is a lawful business. Its free conduct cannot be interfered with unless this be done in the preservation of the public health, safety, welfare, morality, or convenience as the interest of the public require and embracing new exigencies and changed conditions. Neither can there be an unwarranted and arbitrary interference with the right to carry on a lawful business. State v. Porter, 94 Conn. 639, 642, 110 A. 59; Dobbins v. Los Angeles, 195 U.S. 223, 236, 25 S.Ct. 18, 49 L.Ed. 169; Opinion of the Justices, 234 Mass. 597, 603, 127 N.E. 525. " To justify the state in thus interposing its authority in behalf of the public, it must appear--First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385. Every presumption is to be made in favor of the validity of the ordinance, and we will not declare it unconstitutional unless it be clearly so.
Discrimination in an ordinance against those of the same class will vitiate the ordinance. Southern Ry. Co. v. Greene, 216 U.S. 417, 30 S.Ct. 287, 54 L.Ed. 536, 17 Ann.Cas. 1247. Soon Hing v. Crowley, 113 U.S. 709, 5 S.Ct. 730, 733, 28 L.Ed. 1145.
An ordinance which operates upon all within the class equally will not be open to the charge of being discriminatory. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; State of La. v. Schlemmer, 42 La. Ann. 1166, 8 So. 307, 10 L.R.A. 135; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Dillon on Mun. Corp. (5th Ed.) vol. 2, § 593.
Statutes or ordinances where " persons engaged in the same business are subject to different restrictions, or are held entitled to different privileges under the same conditions," will be held to be discriminatory. McQuillan on Mun. Corp. (2d Ed.) vol. 2, § 775. Legislation cannot arbitrarily divide a class into two parts...
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