State v. Stevens

• Decision Date: 08 November 1916
• Citation: 78 N.H. 268,99 A. 723
• Parties: STATE v. STEVENS.
• Court: New Hampshire Supreme Court

99 A. 723

78 N.H. 268

STATE

v. STEVENS.

Supreme Court of New Hampshire. Rockingham.

Nov. 8, 1916.

Transferred from Superior Court, Rockingham County; Kivel, Judge.

William H. Stevens was convicted of offering for sale and selling lightning rods and material for the protection of buildings from damage from lightning without a license in violation of Laws 1915, c. 128. On transfer to the Supreme Court on an agreed statement of facts. Judgment for the State."

July 29, 1915, the defendant, then a resident of Massachusetts, as the agent of the National Standard Company of Michigan, the company being duly licensed to do business in this state, at North Hampton sold lightning rods without having a license as such agent. The defendant and the company had previously applied to the insurance commissioner for an agent's license for the defendant which was refused for the sole reason that the defendant was not a resident of this state.

Albert R. Hatch, of Portsmouth, and James P. Tuttle, Atty. Gen., for the State. Pierce & Galloway, of Dover, for defendant.

PARSONS, C. J. Chapter 128, Laws 1915, is entitled "An act to regulate the sale of lightning rods." Section 1 is:

"No manufacturer, person, firm, or corporation shall sell or offer for sale material used for the protection of buildings from damage by lightning until authorized to do so by a license obtained from the insurance commissioner under * * * this act."

Section 2 contains the terms and conditions upon which such license may be issued to the manufacturer of material for the purpose of protecting from lightning. Section 3 is:

"Upon written notice from a licensed manufacturer under this act of the appointment of a suitable person to act as his agent in this state, and upon the presentation of a certificate of his good reputation and moral character, signed by the mayor or selectmen of the city or town of which he is a resident, the insurance commissioner may, if he is satisfied that the appointee is a suitable person, issue to him a license as such agent, upon the receipt of a fee of two dollars. Such license shall continue in force one year from date of issue, but may be revoked at any time by the insurance commissioner for good cause and after a hearing. Such agents shall be residents of the state."

Section 5 provides a penalty for sale by an unlicensed person. It is not contended that the sale of lightning rods is not a proper subject for regulation and license by the state. Nor is the power of the state to enforce the act by the infliction of a penalty for selling without a license controverted. The only provision attacked is the final clause of section 3, that such agents shall be residents of the state. But this provision is not a necessary element of the scheme of regulation provided. It could not be held that the Legislature would not have attempted regulation of the sale of lightning rods if they had understood this particular provision was beyond legislative power. The result, if this clause is void, therefore would not be to invalidate the whole act and permit all persons to sell without license, but merely to render nugatory that portion of the act. Opinion of the Justices, 76 N. H. 604, 605, 81. Atl. 170; East Kingston V. Towle, 48 N. H. 57, 65, 97 Am. Dec. 575, 2 Am. Rep. 174. This apparently is the view of the defendant; for he considered it necessary to show that he applied for a license which was refused him.

The duty imposed upon the insurance commissioner upon application to him for the license of an agent is judicial in its nature; he is to pass upon the question whether the manufacturer's appointee is a suitable person.

If, acting under an erroneous view of the law, the insurance commissioner wrongfully refused to issue the license, the defendant had an ample remedy in the writ of certiorari.

The judgment of the commissioner that the license ought not to be granted cannot be attacked collaterally. Pittsfield v. Exeter, 69 N. H. 336, 338, 41 Atl. 82. The defendant would be no better off if such attack were permitted. His claim is that he was entitled to a license, not that he had a right to sell without a license. If the correctness of the defendant's claim were conceded or established, he would still be guilty of a violation of the statute—selling without a license. A wrongful refusal of a license is not equivalent to a license.

Instead of prosecuting by proper proceedings his claim of right to a license, the defendant chose to disregard the law and must submit to the penalty. Upon the facts agreed the state is entitled to judgment.

But, while the insurance commissioner is not technically a party to these proceedings, the state is represented by the Attorney General, and, as he would not probably desire to press for punishment if satisfied that a license ought to have been given the defendant, the case has been considered as if it were an application to review the decision of the insurance commissioner presenting the sole question now raised by the defendant whether the requirement of section 3, "Such agents shall be residents of the state," is in violation of paragraph 1, § 2, art. 4, of the Constitution of the United States, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." The assumption of the defendant's brief that the statute in question discriminates against the citizens of other states is not true in fact. The inhibition of the statute (section 1) applies to every "manufacturer, person, firm, or corporation." The argument of the state's brief in reliance upon the proposition that corporations are not citizens within the meaning of section 2, art. 4, of the federal Constitution and the Fourteenth Amendment thereto is of no assistance. The statute was not passed to restrict or regulate the admission of foreign corporations to do business in the state, but to regulate the sale of lightning rods within the state by any "person, firm, or corporation." Every manufacturer desiring license for the sale of his product, material used for the protection of buildings from damage by lightning, within the state, may obtain it on the same terms, whether a corporation or an individual, a citizen of this state, some other state, or a foreign country. If the provision of section 3 that the agents of such manufacturer shall be residents of the state is a limitation of the manufacturer's right, it is a limitation which applies equally to citizens of this and other states and countries.

The manufacturer, not being discriminated against, cannot urge a violation as to him of article 4 of the federal Constitution. There is nothing in section 3, regulating the appointment of agents, which prohibits the license of a citizen of Massachusetts or any other state, or an alien. The essentials to a license are: (1) Notice from a licensed manufacturer of the appointment; (2) the presentation of a certificate of good reputation and moral character, signed by the mayor or selectmen of the city or town of which the appointee is resident; (3) that the insurance commissioner is satisfied that the appointee is a suitable person. These three points being made out, the commissioner is authorized to issue a license to the appointee as agent, upon the receipt of a fee of $2. The license continues in force for one year from the date of issue, but may be revoked at any time by the insurance commissioner for good cause upon hearing. The next sentence contains the provision to which objection is made, "Such agents shall be residents of the state."

From the context it is clear that, whatever the Legislature had in mind by the word "resident," the possession of the qualification thereby implied is not essential to the issuance of a license, but the provision is intended as a regulation of the licensed agent. Having accepted the license, he is required while acting thereunder to. maintain a residence in the state. There is no provision of the statute avoiding the license if the licensed agent does not comply with the statute by maintaining a residence in the state, but failure in the licensed agent to obey the law would be good cause for revocation of the license. An expressed intention not to obey the law at the time of application for license might be sufficient evidence that the appointee was not a suitable person and justify the refusal of a license which might be at once revoked if such intention were carried out. The license in this case may have been refused upon this ground. The restriction of the statute applies equally whether at the time of license the agent is a citizen of New Hampshire or of some other state. The citizen of New Hampshire while claiming the benefit of the license cannot abandon his residence here, nor can the citizen of another state claim the rights of a licensee without establishing and maintaining such a residence here as will comply with the law. It was not required that the Massachusetts citizen taking out a license should become a citizen of the state, but only that he should reside here.

Although the Fourteenth Amendment of the federal Constitution declares that citizens of the United States are citizens of the states in which they reside, there may be a temporary residence in one state, with intent to return to another, which will not create citizenship in the former. Bradwell v. State of Illinois, 16 Wall. 130, 138, 21 L. Ed. 442. This seems a sufficient answer to the claim of discrimination against the citizens of other states. The provision does not differ from legislative and constitutional provisions requiring a certain term of residence as an essential to holding office or exercising the electoral franchise; bearing equally upon the citizens of the state and upon those who may come from other states, there is no discrimination.

But it is unnecessary to rest the decision upon so narrow a ground or to take time to discuss the distinctions between...