State v. Feingold

• Decision Date: 09 December 1904
• Citation: 77 Conn. 326,59 A. 211
• Court: Connecticut Supreme Court
• Parties: STATE v. FEINGOLD.

59 A. 211

77 Conn. 326

STATE

v. FEINGOLD.

Supreme Court of Errors of Connecticut.

Dec. 9, 1904.

Case Reserved from Criminal Court of Common Pleas, New Haven County; Leverett M. Hubbard, Judge.

Prosecution against Paulina Feingold for selling goods without a license in violation of Gen. St. 1902, §§ 4662-4667. Defendant demurred to the complaint, and the case was reserved for the Supreme Court by the criminal court of common pleas for New Haven county (Hubbard, Judge). Overruling of demurrer and entry of judgment for the state advised.

The grounds of demurrer specified are the vague and indefinite description of the offense charged, and the unconstitutionality of the statute under which the accused is prosecuted. The first ground was waived, and by stipulation between the parties it was agreed that judgment against the state should be entered if the act should be held invalid, and judgment against the defendant if it should be held valid, and upon this stipulation the cause was reserved.

Robert B. Cooper, Pros. Atty., Richard H. Tyner, and James B. Cooper, for the State.

William B. Stoddard and Jacob P. Goodbart, for defendant.

HAMERSLEY, J. (after stating the facts). In 1897 the Legislature passed an act entitled "An act concerning itinerant vendors" (Pub. Acts 1897, p. 855, e. 152). This act, with subsequent alterations and additions, is incorporated in the General Statutes of 1902 under the heading "Itinerant Vendors" (sections 4662-4668). Section 4663 provides that every itinerant vender who shall sell or expose for sale, at public or private sale, any goods, without state and local licenses therefor, "issued as hereinafter provided," shall be punished by fine and imprisonment. The defendant in the present case is charged with the violation of this section, and claims that the act requiring a license, in the restrictions which it imposes upon a lawful and harmless business, exceeds the limits of legislative power. The validity of the act is the only question involved in this case. The Legislature may, in its discretion, direct that a public register be kept of the persons engaged in any specified business, and for this purpose may require the persons so engaged to take out a license, and may indirectly tax such business through the amount fixed as a license fee. State v. Conlon, 65 Conn. 478, 483, 33 Atl. 519, 31 L. R. A. 55, 48 Am. St. Rep. 227. In that case we held that the law then under discussion was void because the arbitrary and unrestrained discretion as given by the law to municipal officers to grant or refuse the license at pleasure, was obnoxious to the first section of article 1 of the Constitution. The act of 1897 requires the licensing authority to issue a license to whoever applies for the same and pays the license fee, and does not contain the specific provision held to be invalid in State v. Conlon. The act, however, provides that "every itinerant vendor * * * desiring to do business in this state shall deposit with the Treasurer of the state the sum of five hundred dollars as a special deposit" (Gen. St. 1902, § 4663), and in another section provides that the license shall be for one year; that such deposit, while in the hands of the Treasurer, shall be subject to attachment, garnishee process, and execution in behalf of creditors whose claims arise in connection with business done in this state; and that upon the expiration or surrender of the license the Treasurer shall pay back to the licensee the amount of the deposit, or such portion thereof as may then remain in his hands. Is this provision, whether regarded as a part of the licensing process, or as a condition to the transaction of the business mentioned, in addition to and independent of the requirement to take out a license, obnoxious to any constitutional provision? The answer to this question depends largely upon what is the transaction, business, or occupation which the statute prohibits unless the deposit is made. Section 4662 is as follows: "The words 'itinerant vendor,' for the purposes of this chapter, shall be construed to mean and include all persons * * * who engage in a temporary or transient business in this state, either in one locality or in traveling from place to place, selling goods, wares and merchandise and who for the purposes of carrying on such business, hire, lease or occupy any building or structure for the exhibition and sale of such goods, wares and merchandise. No itinerant vendor shall be relieved or exempted from the provisions and requirements of this chapter by reason of associating himself temporarily with any local dealer, auctioneer, trader or merchant, or by conducting such temporary or transient business in connection with or in the name of any local dealer, auctioneer, trader or merchant. The provisions of this chapter shall not apply to sales made to dealers by commercial travelers or selling agents in the usual course of business, nor to bona fide sales of goods, wares and merchandise by sample for future delivery, nor to hawkers on the streets, or peddlers from vehicles."

The defendant maintains: That in view of this definition of "itinerant vendor," in its relation to the remaining parts of the chapter, it is evident that the true meaning of the act is that the thing forbidden to be done is the sale of goods of any kind whatever at a fixed place—that is, in a building or structure adapted to and occupied for the exhibition and sale of goods—whether at public auction or private sale, during a limited time or any short period of time. That "temporary or transient," as here applied to a business conducted in a fixed place, necessarily implies a stationary business, as contradistinguished from a business conducted while moving about, and a business carried on for a limited time, of short duration, as distinguished from one carried on indefinitely, without any limit as to special purpose or duration of time. That every person who enters upon a sale of this description does the act and engages in the business forbidden by the statute, unless a license therefor is first obtained. That the person who obtains the license may prolong the otherwise forbidden transaction for one year, or, if it does not last so long, may repeat the transaction once or more within the limit of one year either in the same locality or in different places. But that the thing forbidden to be done without a license is any exhibition and sale of goods in a building occupied for that purpose, for a limited or short time, not exceeding in...