State v. Harrington

Decision Date04 August 1896
Citation68 Vt. 622,35 A. 515
PartiesSTATE v. HARRINGTON.
CourtVermont Supreme Court

Exceptions from Orange county court; John W. Rowell, Judge.

A. E. Harrington was prosecuted on an information for violation of Acts 1804, No. 59, requiring itinerant vendors to take out state and local licenses. Heard on a general demurrer at the June term, 1895. To a judgment overruling the demurrer, respondent excepts. Affirmed.

D. C. Hyde, State's Atty., and John H. Watson, for the State.

Darling & Darling, for respondent.

TYLER, J. This Information is based upon Act No. 59, Laws 1894, in which the words "itinerant vendors" are construed to mean and include all persons who engage in a temporary or transient business, 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, etc. The law excludes from its provisions sales made to dealers by commercial travelers and selling agents in the usual course of business, and bona fide sales of goods, etc., by sample, for future delivery; hawkers on the streets; and peddlers from vehicles. It requires that every itinerant vendor who proposes to do business in this state shall deposit $500 with the state treasurer, after which deposit, upon application in prescribed form, and the payment of $25 as a state license fee, he is entitled to an itinerant vendor's license from the state treasurer, authorizing him to do business in this state for one year. He may then apply to the clerk of the city or town where the goods are kept for sale for a local license. With his application to such clerk he must file a true statement, under oath, of the average quantity and value of bis stock. The clerk submits the statement to the listers for their valuation. Their certificate of valuation is then submitted to the board of aldermen or selectmen, "who must forthwith act upon such application, and if in the judgment of such board, such application should be granted, such city or town clerk may be authorized to issue a license to such applicant," who shall pay therefor a sum ascertained by the clerk by a computation based upon the valuation of the listers, in the ratio and at the rate of the last preceding assessment of taxes. It is provided that every itinerant vendor who sells, exposes or advertises for sale, goods, wares, and merchandise, without a state and local license, shall be liable to fine or imprisonment, or both. The local license, in any event, expires on the last day of the next March. The deposit of $500 is subject to the payment of all fines and penalties that may be incurred by the licensee through violations of the law. Upon the expiration of the state license the state treasurer returns to the licensee the remainder of the deposit, after deducting all flues and penalties. The case comes here upon the sole question of the constitutionality of the law.

The respondent's counsel contend that the law is in violation of both the state and federal constitution; that it is an encroachment upon the natural, inherent, and inalienable right of citizens to acquire and possess property through the agency of labor; that it discriminates between itinerant vendors and resident vendors, and between classes of itinerant vendors, and thus violates that portion of chapter 1, art. 7, of the constitution which declares that "government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community, and not for the particular emolument or advantage of any single man, family or set of men, who are a part of that community"; that it is in conflict with the inhibition of the federal constitution that "no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws"; that the requirement of a deposit of $500 deprives an itinerant vendor of his property without due process of law; that it violates the fourteenth amendment of the federal constitution, which commands that "no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States"; that the requirements of the law are unjust and oppressive, and violate the natural as well as the constitutional rights of the citizen.

The legislature had in view the class of persons who go from place to place, and temporarily occupy rooms for the exhibition and sale of goods, and enacted the law in the apprehension that there was fraud in such sales. Its title is, "An act to prevent and punish fraud in the sales of goods, wares and merchandise at public or private sale by itinerant vendors, and to regulate such sales." It seems to have been passed as a police regulation, though the local license fee is equivalent to taxation upon the grand list in each town in which such license is taken. The police power of a state extends beyond the protection of health, peace, morals, education, and good order. It is the power to govern men and things within the limits of its dominion. It comprehends all those general laws of internal regulation necessary to secure peace, good order, the health and comfort of society, and the regulation and protection of all property in the state. Its power in these respects is supreme. Desty, Tax'n, 1377, and cases cited; Cooley, Const. Lim. 704. "Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in it by the constitution, may think necessary and expedient. * * * The power we allude to is the police power,—the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as it shall judge to be for the welfare of the commonwealth and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise." Chief Justice Shaw in Com. v. Alger, 7 Cush. 53. The law is clearly stated by Redfield, C. J., in Thorpe v. Railroad Co., 27 Vt. 140: "This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property, within the state. According to the maxim, 'Sic utere tuo ut alienum non lcedas,' which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." "The powers of the state to impose restraints and burdens upon persons and property, in conservation and promotion of the public health, good order, and prosperity, is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the constitution of the United States, and essentially exclusive." Wilkerson v. Rahrer, 140 U. S. 545, 11 Sup. Ct. 865.

The question is whether this law is within the scope either of the police or taxing power of the state. If it is beyond such scope, and unconstitutional, it is in respect to the licenses, or the special deposit with the state treasurer, or the authority conferred upon the board of aldermen or selectmen to grant or refuse local licenses according to their judgment. Citizens have not an inherent and inalienable right to acquire and possess property, without the legislative restraint of taxation. It is also true that the property alone is not liable to taxation. A tax may be assessed on the privilege of carrying on a particular business, and, when it takes this form, convenience in collecting will commonly require payment of a license fee, as a condition to the right to carry on the business. Cooley, Tax*n, 384 et seq.; License Tax Cases, 5 Wall. 472. "The mode of levying, as well as the right of imposing, taxes, is completely and exclusively within the legislative power, which, it is to be presumed, will always be exercised with an equal regard to the security of the public, and individual rights and convenience." Cowles v. Brittain, 2 Hawks (N. C.) 204. Judge Cooley remarked in Youngblood v. Sexton, 32 Mich. 406, that, while a statute might have revenue for one object, the exercise of the police power of the state might be another. So, if this law were to be considered as a mere revenue law, it must be in the light of the settled rule, as laid down by all writers upon taxation, that everything to which the legislative power extends may be the subject of taxation, whether it be person, property, franchise, privilege, occupation, or right; that not only is the power unlimited in its reach as to subjects, but, in its very nature, it acknowledges no limits, and may be carried to any extent which the government may find expedient. It may therefore be employed again and again upon the same subjects, even to the extent of exhaustion and destruction, and thus become, in its exercise, a power to destroy. Cooley, Tax'n, 384, and cases cited in notes; Nathan v. Louisiana, 8 How. 73; License Tax Cases, supra; Railroad Co. v. Peniston, 18 Wall. 5; New Orleans v. Telephone Co. (La.) 3 South. 533.

No employment is exempt from taxation. The state has an undoubted right to determine what employments shall be permitted, and to forbid those which are deemed prejudicial to the public good. Rules for the conduct of the most necessary and common occupations are prescribed, when from their nature they afford peculiar opportunities for imposition and fraud. Tbe state has...

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