State v. Webber

• Decision Date: 24 November 1908
• Citation: 214 Mo. 272,113 S.W. 1054
• Parties: STATE v. WEBBER.
• Court: Missouri Supreme Court

113 S.W. 1054

214 Mo. 272

STATE v. WEBBER.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

1. HAWKERS AND PEDDLERS (§ 3) — ACTS CONSTITUTING PEDDLING.

That one sold liniment and lemon extract by going from place to place to sell the same, and sold one bottle to one person and two to another shows that he was a peddler within Rev. St. 1899, § 8861 (Ann. St. 1906, p. 4118), defining a peddler to be one who deals in the selling of goods, wares, and merchandise, etc.

For other definitions, see Words and Phrases, vol. 6, pp. 5260-5267; vol. 8, p. 7750.]

2. CONSTITUTIONAL LAW (§ 208) — HAWKERS AND PEDDLERS — LICENSES — CLASS LEGISLATION.

The Legislature can designate peddlers as a class who must obtain licenses before following their occupation.

3. CONSTITUTIONAL LAW (§ 48) — STATUTES — CONSTRUCTION.

A statute must appear to contravene the Constitution beyond reasonable doubt before it will be held unconstitutional.

4. CONSTITUTIONAL LAW (§ 205) — SPECIAL PRIVILEGES — LICENSES — "PEDDLER."

Rev. St. 1899, § 8861 (Ann. St. 1906, p. 4118), defining a peddler as one who deals in selling goods, etc., excepting pianos, etc., and sections 8862, 8868 (Ann. St. 1906, pp. 4118, 4120), prohibiting peddling without a license, etc., are not unconstitutional as violating Const. Mo. art. 4, § 53, forbidding laws granting special privileges, etc., nor the fourteenth amendment to the federal Constitution; but are valid police regulations.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

J. C. Webber was convicted of peddling without a license, and he appeals. Affirmed.

Warner, Dean, McLeod & Timmonds, for appellant. H. S. Hadley, Atty. Gen., and N. T. Gentry, Asst. Atty. Gen., for the State.

GANTT, J.

On the 11th day of May, 1907, the prosecuting attorney of Vernon county filed the following information, duly verified, before Henry Dalton, a justice of the peace within and for Center township in said county:

"James N. Coil, prosecuting attorney, within and for the county of Vernon and state of Missouri, on his oath of office and on his best information and belief informs the court that J. C. Webber, on or about the ___ day of May, 1907, at and in the said county of Vernon and state of Missouri, did then and there willfully and unlawfully deal in the selling of goods, wares, and merchandise as a peddler, by going about from place to place with two horses and wagon used by the said J. C. Webber for that purpose, by then and there selling divers goods, to wit, one bottle of liniment, to one Ben Finck, for the sum of one dollar, two bottles of lemon extract to Mrs. ____ Wilkerson, for the sum of fifty cents, and divers other articles to this informant unknown, to divers persons whose names are unknown, without then and there having a peddler's license, or any other legal authority therefor; contrary to the forms of the statutes in such cases made and provided, and against the peace and dignity of the state of Missouri."

A change of venue was granted to Justice Cummings and on September 20, 1907, the defendant was put on his trial on said information and found guilty, and his punishment assessed at $25, and judgment rendered accordingly. On the same day the defendant took his appeal in due form to the circuit court of Vernon county. At the October term, 1907, of the circuit court the defendant demurred to the information on the following grounds:

First. Said information does not constitute facts sufficient to charge this defendant with the violation of any law, or the commission of any crime or offense.

Second. Sections 8861, 8862, and 8868 of the Revised Statutes of Missouri of 1899 (Ann. St. 1906, pp. 4118-4120), under which this prosecution was instituted, are null and void, because they are in violation of section 53, art. 4, of the Constitution of this state, providing that the General Assembly of this state shall not pass any local or special law granting to any corporation, association, or individual any special or exclusive right, privilege, or immunity.

This demurrer was overruled, and thereupon afterwards, at the same term, the question coming on for hearing, a jury was waived, and the question was submitted to the court upon the following statement of facts:

"On the ____ day of May, 1907, at Vernon county, Missouri, the defendant did deal in the selling of liniment and lemon extract by going about from place to place to sell the same, and he did then and there sell one bottle of liniment to one Ben Finck, for the sum of one dollar, and two bottles of lemon extract to Mrs. Wilkerson, for the sum of fifty cents, and it is also agreed that the defendant did not have any peddler's license authorizing him so to do."

At the time of submitting the question on the said statement of facts, defendant requested the court to give the following instructions:

"No. 1. The court declares the law to be that, under the information and evidence in this case, the court should find the defendant not guilty.

"No. 2. The court declares that the peddler's statutes, under which this prosecution is being had, are null and void, because in violation of section 53, art. 4, of the Constitution of the state; and the defendant should be found not guilty.

"No. 3. The court declares the peddler's statutes, under which this prosecution is being had, are null and void because in violation of the fourteenth amendment to the Constitution of the United States; and the defendant should be found not guilty."

Which said instructions the court refused, and the defendant duly saved his exceptions to the action of the court in so ruling. Thereupon the court found the defendant guilty of peddling without a license as charged in the information, and assessed his punishment at a fine of $15, and rendered judgment accordingly. And thereafter, on the same day, the defendant filed his motion for new trial, assigning as error the refusal of the said instructions, prayed by him, by the court. Which said motion for new trial was by the court overruled, and defendant saved his exceptions. Defendant also filed his motion in arrest, assigning as grounds thereof that the information was insufficient to charge him with any crime because the statutes, to wit, sections 8861, 8862, and 8868, Rev. St. 1899 (Ann. St. 1906, pp. 4118-4120), were null and void, because in violation of the fourteenth amendment to the Constitution of the United States. Which said motion was also overruled, and defendant stayed his exceptions. Thereafter an appeal was granted to this court in due form.

This appeal involves the constitutionality of sections 8861, 8862, and 8868, Rev. St. 1899 (Ann. St. 1906, pp. 4118-4120). Section 8861 defines a peddler to be "whoever shall deal in the selling of patents, patent rights, patent or other medicine, lightning rods, goods, wares or merchandise except pianos, organs, sewing machines, books, charts, maps and stationery, agricultural and horticultural products including milk, butter, eggs and cheese, by going from place to place to sell the same." It is obvious that, if the statute is constitutional, the defendant was a peddler, and, not having a license, was guilty. The act is assailed on the ground that it is class legislation and in violation of section 53 of article 4 of the Constitution of this state, which forbids special laws granting to any individual special or exclusive rights, privileges, or immunities, and also in violation of the fourteenth amendment to the Constitution of the United States. It is conceded by the learned counsel for defendant that it is perfectly competent for the Legislature to select peddlers as a class, which shall be required to obtain a license as a prerequisite to following that occupation. No doubt whatever exists on this point. It has been repeatedly so held by the courts of the several states and the federal courts. The regulation of the business of itinerant peddlers is very ancient. Baron Graham in Attorney General v. Tongue, 12 Price, 51, said: "The object of the Legislature in passing the act upon which this information is founded was to protect, on the one hand, fair traders, particularly established shopkeepers, resident permanently in towns and other places, and paying rent and taxes there for local privileges, from the mischiefs of being undersold by itinerant persons, to their injury, and, on the other hand, to guard the public from the impositions practiced by such persons in the course of their dealings, who, having no known residence, carry on a trade by means of vending goods conveyed from place to place by horse or cart." Graffty v. Rushville, 107 Ind. 502, 8 N. E. 609, 57 Am. Rep. 128; City of South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L. R. A. 531; 21 Amer. & Eng. Ency. Law (2d Ed.) 791.

But it is insisted that section 8861 has arbitrarily divided this natural class, and requires one of such classes to take out a license, and at the same time grants the other the "right, privilege or immunity" to peddle without a license. That is to say, the Legislature cannot exempt those who deal in selling pianos, organs, books, charts, maps, eggs, butter, and cheese from taking out a license, and by the same statute require those who peddle other merchandise, as in this case "extracts and liniments," to obtain a license; that this is...