Stroll v. State

• Decision Date: 07 November 1923
• Docket Number: (No. 7769.)
• Citation: 255 S.W. 620
• Parties: STROLL v. STATE.
• Court: Texas Court of Criminal Appeals

255 S.W. 620

STROLL v. STATE.

(No. 7769.)

Court of Criminal Appeals of Texas.

November 7, 1923.

Appeal from Falls County Court; Walter S. Hunnicutt, Judge.

A. Stroll was convicted of violating the Junk Law, and he appeals. Judgment reversed, and prosecution dismissed.

Bartlett & Dodson, of Marlin, and Slay, Simon & Smith, of Fort Worth, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the county court of Falls county of a violation of what is known as the Junk Law, and his punishment fixed at a fine of $25.

By the terms of chapter 82, Acts Fourth Called Session of the Thirty-Fifth Legislature (Vernon's Ann. Pen. Code Supp. 1922, arts. 641a-641d), an attempt was made to regulate the mode of purchasing junk by junk dealers, and persons engaged in that business were made subject to a penalty if they bought any junk without requiring the seller to make an affidavit in writing describing the articles and parts thereof so sold with such certainty as would identify them, stating when, where, and from whom same were obtained by the seller, and the circumstances under which same came into his or her possession—which affidavit should be at the expense of the junk dealer. In a certain section of the act appears a definition of a "junk dealer" as one who deals in secondhand goods in quantities less than carload lots if such goods be other than liquids, fuel, feed, foodstuffs, and furniture. Appellant's conviction was for the purchase of 250 pounds of scrap iron without having secured the affidavit required by law. Practically the only defense is an attack on the constitutionality of the law, it being asserted that the said statute is unconstitutional for that it abridges the right of the citizens in violation of the Fourteenth Amendment to the federal Constitution, is in restraint of trade, is discriminatory, abridges the right of contract, and is unreasonable. As a basis for appellant's contentions it was shown that the 250 pounds of junk was sold for 85 cents. that two boys made the sale jointly, and that the cost of an affidavit would have been 50 cents for each affiant. The proposition thus made is that if the affidavit be a legitimate prerequisite, it would have prevented the sale of this junk and would have the same effect on the sale of any other junk in small quantities by any persons who may own the same or have it for sale, if the value thereof be less than the cost of the affidavit, and the law would thus operate in restraint of all sales of small quantities of junk because of the prohibitive cost of making the affidavit. There can be no doubt of the proposition that dealing in junk is a legitimate business and that when conducted honestly it deserves the protection and encouragement of law and government; but it is equally true that it furnishes great opportunity to dishonest persons in effectually disposing of and secreting the fruits of burglaries and thefts, and that laws aimed at the prevention of the latter should be upheld if found within the power of the lawmakers to enact.

Laws forbidding the engaging in the business of junk dealers without first procuring license have been upheld. Charleston v. Goldsmith, 12 Rich. (S. C.) 470; Marmet v. State, 45 Ohio, 63, 12 N. E. 463; New Orleans v. Kaufman, 29 La. Ann. 283, 29 Am. Rep. 328; Herna v. Boldrick, 154 S. W. 369. So a statute requiring a junk dealer to keep a book in which should be made a record of the articles bought by him. Com. v. Leonard, 140 Mass. 473, 4 N. E. 96, 54 Am. Rep. 485. In People v. Rosenthal, 197 N. Y. 394, 90 N. E. 991, 46 L. R. A. (N. S.) 31, Rosenthal v. People of New York, 226 U. S. 260, 33 Sup. Ct. 27, 57 L. Ed. 212, Ann. Cas. 1914B, 71, a conviction of a junk dealer for receiving stolen property under a special statute making penal the act of such dealer who bought or received wire, cables, etc., without ascertainment by diligent inquiry that the person selling the same had the legal right so to do, was upheld in a judgment by the Supreme Court of the United States.

On the question that the operation of this...