State v. Finch
| Decision Date | 17 November 1899 |
| Docket Number | 11,855 - (25) |
| Citation | 80 N.W. 856,78 Minn. 118 |
| Parties | STATE v. P. S. FINCH |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of the municipal court of Minneapolis adjudging him guilty of violation of an ordinance "licensing and regulating hackmen, draymen expressmen," etc., after a trial before Kerr, J Reversed.
City Ordinance Regulating Expressmen -- Prosecution for Violation.
In a prosecution under an ordinance of the city of Minneapolis (to license and regulate hackmen, expressmen, etc.) for using and causing to be used on the streets of the city express wagons in the transportation of baggage and freight for hire, without first obtaining a license so to do, the gist of the offense is engaging in the business without a license; and it is not necessary that the complaint should allege what property the defendant carried, or for whom he carried it.
Authority Given by Charter of Minneapolis.
The power given by the city charter to license and regulate hackmen, draymen, and expressmen is not limited to those who occupy a regular stand on the public streets. Neither is the ordinance passed in pursuance of the charter limited in its operation to such.
Ordinance Invalid -- License Fees.
The ordinance in question held invalid because the prescribed schedule of license fees is in some respects unreasonable in amount, and also because it contains discriminations as to amounts which are purely arbitrary.
John H. Steele, for appellant.
The complaint is insufficient. The business, as carried on by defendant, was not properly subject to police regulation. In Matter of Jacobs, 98 N.Y. 98; State v. Robinson, 42 Minn. 107. The ordinance is not equal or uniform. Moore v. City of St. Paul, 48 Minn. 331; Moore v. City of St. Paul, 61 Minn. 427. The council had no right to pass such an ordinance. Authority must appear affirmatively in the charter. City of St. Paul v. Traeger, 25 Minn. 248; City of Mankato v. Fowler, 32 Minn. 364. No greater fees should be required than necessary to pay for issuing the license and police supervision. City of Duluth v. Krupp, 46 Minn. 435. The valid and invalid parts are so intermixed that no part can be sustained. Cicero v. Town, 176 Ill. 9. The classification is for revenue and not for regulation. City v. Nodine, 26 Hun, 512. See Farwell v. City, 71 Ill. 269; City v. Vanlaningham, 17 Ill.App. 62. An ordinance of this nature operates only on those who hold themselves out as common carriers for hire. Joyce v. City, 77 Ill. 156; City v. Cole, 78 Ill. 114.
Frank Healey and H. D. Dickinson, for respondent.
Defendant not having offered to pay a license fee, is not in a position to object. State v. Inhabitants, 53 N.J.L. 132. Section 1 may stand, though section 7 be invalid. In re White, 43 Minn. 250; State v. Duluth G. & W. Co., 76 Minn. 96; State v. Schoenig, 72 Minn. 528. The classification under section 11 is proper. People v. Hotchkiss, 118 Mich. 59. As to the right to pass such an ordinance, see Ogden v. Crossman, 17 Utah 66; In re Chipchase, 56 Kan. 357; Denver v. City, 21 Colo. 350; Davis v. Mayor, 64 Ga. 128; City v. Green, 7 Mo.App. 468; State v. Mott, 60 N.J.L. 413; Bowser v. Thompson (Ky.) 45 S.W. 73; People v. Baker, 115 Mich. 199; People v. Sawyer, 106 Mich. 428; Cronin v. People, 82 N.Y. 318, 323; Cosgrove v. City, 103 Ga. 835; Pittsburgh v. Hays, 17 Ind.App. 261. Ordinances passed under express powers as to the amount of burden to be imposed are left entirely to the discretion of the municipal authorities, unless grossly unjust. City v. Bazzette, 159 Ill. 284; Cooley, Const. Lim. (4th Ed.) 243; City v. Fitz, 53 Mo. 582.
The defendant was charged with, and convicted of, using and causing to be used upon the streets of the city of Minneapolis, in carrying baggage and freight for hire, a vehicle commonly called an "express wagon" (he being then and there a person engaged in carrying baggage and freight for hire), without having first obtained a license so to do, contrary to the provisions of an ordinance of the city entitled "An ordinance licensing and regulating hackmen, draymen, expressmen and other persons engaged in carrying passengers, baggage and freight; regulating their charges and prescribing standing places therefor."
The points urged by the defendant on appeal may be divided into three classes, viz.: (1) That the complaint was insufficient; (2) that evidence was insufficient, in that it did not show that he was carrying on the business of a hackman, drayman, or expressman, within the meaning of the ordinance, or the provisions of the city charter under which it was enacted; (3) that the ordinance was void because certain of its provisions were unreasonable.
The complaint was clearly sufficient. The gist of the offense is engaging in the specified kind of business without a license, and not the particular kind of property which he carried, or the particular person for whom he carried it.
The evidence is clear that he was engaged in the business of drayman or expressman, within the meaning of the charter and ordinance. The only difference between his manner of conducting the business, and that of the ordinary drayman or expressman, who has only one vehicle, is that he carried on the business on a larger scale, having a number of vehicles used in the business. Instead of using the street as a stand for soliciting and receiving orders from the public, he had an office for the purpose on his own premises, on the corner of two public thoroughfares, upon which his vehicles waited ready to fulfil orders when directed by him; and inasmuch as this office is on the same premises as his stables and yards, his teams and vehicles, when not actually employed, stand most of the time in these yards or stables, instead of the streets. But it appears that he is engaged in the business of what may be termed a public drayman or expressman, holding himself out as such, and receiving orders from the public generally.
The mere fact that a drayman or expressman occupies a stand upon the street is not the sole, or even the main, reason for regulating the business. Nor is there anything in either the charter or the ordinance limiting the police power or its exercise to those who occupy a stand upon the public streets. The business of a public hackman, drayman, or expressman is affected with a public interest, and is liable to peculiar abuses, and the principal object of these police rules is to regulate the business so as to protect the public against fraud or extortion. And it is just as necessary thus to regulate the business when conducted in a manner adopted by the defendant as it is to do so in the case of those who regularly stand their vehicles on the streets, and there solicit business or receive orders from the public, except in the single matter of providing where they may stand. The fact that the defendant charged for the use of his vehicles by the hour, instead of by the job or according to the amount of goods carried, is of no importance.
But when we come to consider the system of license fees prescribed by this ordinance, we meet with a much more serious question. The scale of fees is as follows:
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