Trescott v. City of Waterloo

• Decision Date: 01 January 1885
• Citation: 26 F. 592
• Parties: TRESCOTT v. CITY OF WATERLOO. [1]
• Court: U.S. District Court — Northern District of Iowa

26 F. 592

TRESCOTT v. CITY OF WATERLOO. ^[1]

United States Circuit Court, N.D. Iowa, Eastern Division.

November Term, 1885

Blum &amp Blum, for plaintiff.

C. W Mullan, for defendant.

SHIRAS J.

The questions submitted to the court are presented by a demurrer to the petition. The plaintiff avers that for the past two years he has been a citizen of the state of Illinois; that the defendant is a municipal corporation, created under the laws of the state of Iowa; that it has legislative authority to license and regulate canvassers and peddlers; and that, in pursuance thereof, in February, 1884, it adopted an ordinance as follows:

'PEDDLERS AND HAWKERS.

'Proprietors of dollar stores and gift enterprises, and all persons transiently remaining in the city, selling, or offering for sale, in any manner, any goods, wares, or merchandise at retail, either in any temporary place of business, or traveling about the city, shall pay such sum as the mayor shall determine in each particular case.'

-- That said ordinance is unconstitutional and void; that in February, 1884, the plaintiff, while engaged in peddling spectacles from door to door in said city of Waterloo, without having a license therefor, was, by order of the mayor of said city, arrested for so doing, fined, and imprisoned for non-payment of such fine, causing damage to plaintiff, for which judgment is sought in this action. To this petition a demurrer is interposed, on the ground that the facts alleged do not show a cause of action against the city.

In the cases of Marshalltown v. Blum, 58 Iowa, 184, S.C. 12 N.W. 266, and Town of Pacific Junction v. Dyer, 64 Iowa, 38, S.C. 19 N.W. 862, the supreme court of Iowa held that ordinances discriminating in favor of the residents of the city or town, against residents of other states, or against residents of other sections of Iowa, were void.

Not questioning that the ordinance adopted by the city of Waterloo comes within the ruling thus made, and is therefore void, counsel have discussed the question whether the city can be held liable for damages to the plaintiff under the state of facts alleged in the petition. It will be borne in mind that the plaintiff could, by proper action on his part have defeated the assessment of a fine against him for selling without a license. If the decision in the police court was adverse to him in this particular, he could, by appeal, have carried the case to a higher court, and thereby have caused the reversal of the judgment assessing a fine against him. Had he paid the fine under protest, he might have recovered the same in a proper action. He did not pursue either of these courses. Having undertaken to peddle goods without a license, and having been arrested...