State v. Reynolds

• Decision Date: 12 August 1904
• Citation: 77 Conn. 131,58 A. 755
• Court: Connecticut Supreme Court
• Parties: STATE v. REYNOLDS.

58 A. 755

77 Conn. 131

STATE

v. REYNOLDS.

Supreme Court of Errors of Connecticut.

Aug. 12, 1904.

Appeal from Criminal Court of Common Pleas, New London County; Walter C. Noyes, Judge.

Carl S. Reynolds, prosecuted for selling provisions from a temporary stand within a mile of a fair ground, demurred to the information. The demurrer was sustained, and the state appeals. Reversed.

Hadlai A. Hull, Pros. Atty., and Rollin U. Tyler, for the State.

Charles B. Whittlesey and Clayton B. Smith, for appellee.

TORRANCE, C. J. The statute (Gen. St. 1902, § 1358) prohibits any person from exposing for sale from any wagon or temporary stand "any articles of provisions," "within one mile of the fair ground of any incorporated society." The defendant was prosecuted in the court below for a violation of this statute. He demurred to the information, mainly on the ground that the statute aforesaid was unconstitutional and void, and the trial court sustained the demurrer on that ground, and discharged him.

The main question upon this appeal is whether or not the act is unconstitutional, and therefore void. Before considering that question, however, it may be well to look at the act itself, in order to determine what its proper construction is, for upon one construction an act might be held to be unconstitutional, while upon another it would not be.

As originally passed, in 1868 (Pub. Acts 1868, p. 147, c. 14), the act, among other things, prohibited, with certain exceptions, the sale of provisions from any "huckster's shop, booth, tent, wagon, or other carriage," "within the distance of one mile from any exhibition or fair of any incorporated agricultural or horticultural society," without the consent of the executive committee of such society. As changed in the revision of 1875, it, among other things, prohibited the sale of provisions "from any wagon or temporary stand," "within one mile of the fair ground of any incorporated society," without the consent of the executive committee of such society. Revision 1875, p. 518, § 23. The form given to the act in the revision of 1875 it has ever since retained. Revision 1888, § 1562; Revision 1902, § 1358. In its present form, the statute, or so much of it as is involved in the present case, reads as follows: "Every person who shall, within one mile of the fair ground of any incorporated society, expose for sale from any wagon or temporary stand any articles of provisions * * * without the written permission of the executive committee of such society shall be fined seven dollars." It will thus be seen that the act of 1868, in terms, prohibited the sale of provisions within one mile of "any exhibition or fair" of a society, while the present act, in terms, prohibits such sale within one mile "of the fair ground" of such society. Looking at the present act in the light of its history, we do not think the revisers, in 1874, while they profitably condensed the act of 1868, intended so radically to change" its meaning as to prohibit sales of harmless provisions at all times within one mile of a fair ground, even when no fair or exhibition was being held thereon. Just as we think they used the words'"wagon or temporary stand" in the present act, as the equivalent of the words "huckster's shop, booth, tent, wagon or other carriage," in the former act, so we think they used the words "fair ground" in the present act as the equivalent of the words "exhibition or fair" in the former act The present act, then, must be held to forbid the lawful sale of provisions within one mile of a fair ground only while an "exhibition or fair" of the kind contemplated by the statute is being held on such ground, and the information is founded in the present case upon this view of the statute.

Another point relating to the construction of the statute requires a brief consideration. The claim is made that the statute prohibits persons from carrying on, within the mile limit, while a fair is being held, their lawful, usual, and ordinary business. This claim is without foundation. The act of 1868 contained, in express terms, this provision, in substance: That "nothing herein shall prevent any person from pursuing his usual and ordinary business at the place where said business has been previously carried on." The present act contains impliedly a similar provision. It does not interfere with the usual and ordinary business of any one. It merely prohibits persons from engaging in a special, unusual, and temporary business on account of the fair. It prohibits a business induced solely by the existence of the fair, whose main object is to sell to those attending the fair, and which begins and ends with the fair. The farmer or the merchant whose usual and ordinary business it is to supply customers, within the mile limit, at their houses or places of business, with provisions, may continue to do so, though a fair may be in progress, without violating the statute. To construe the act as prohibiting at all times sales of provisions within the mile limit, and as operating upon persons whose usual business it is to make such sales, is to give it an effect which we think the Legislature never...