Village of St. Johnsbury v. Jacob Aron

• Decision Date: 07 October 1930
• Citation: 151 A. 650,103 Vt. 22
• Parties: VILLAGE OF ST. JOHNSBURY v. JACOB ARON
• Court: Vermont Supreme Court

151 A. 650

103 Vt. 22

VILLAGE OF ST. JOHNSBURY v. JACOB ARON

Supreme Court of Vermont

October 7, 1930

February Term, 1930.

Constitutional Law---Licenses---Application for License under Municipal Ordinance Not Requisite To Test Constitutionality of Ordinance---Power To Regulate and License Busi- nesses under Police Power---Municipal Corporations---Delegation of Police Power by Legislature---Status of Lawfully Enacted Municipal Ordinance---Presumption as to Constitutionality---How Police Power Must Be Exercised---Effect When Ordinance Grants Arbitrary Power---Ordinance Relating To Dealers in Junk and Secondhand Articles---Basis for Testing Constitutionality of Municipal Ordinance---"Wholly Within Discretion of Trustees" as Grant of Arbitrary Discretion.

1. In ACTION OF TORT by village to recover penalty for non-compliance with ordinance requiring that dealer in junk and secondhand articles must first obtain license so to do from village trustees, held that respondent had right to raise question of constitutionality of statute, though he had not applied for license.

2. Statutes providing for the regulation and licensing of the business of dealing in junk and secondhand articles are valid exercise of police power of State.

3. Municipal corporation has no inherent power to enact police regulations, but power may constitutionally be delegated by State to municipality, or to a subordinate board or commission.

4. An ordinance legally enacted by municipality, within power conferred upon it by State Legislature, has force of State law, and its validity is to be measured by provisions of Fourteenth Amendment to federal Constitution.

5. Every presumption is to be made in favor of constitutionality of municipal ordinance, and it will not be declared unconstitutional except upon clear and irrefragable evidence that it infringes paramount law.

6. Exercise of police power in municipal ordinance must be reasonable, and question of reasonableness, in particular instance is ultimately for court; and it must not be oppressive or discriminatory.

7. An ordinance which invests an official or board of officials with authority to grant or withhold license to engage in a lawful business according to his or their arbitrary discretion is unconstitutional and void.

8. Ordinance requiring that dealers in junk and secondhand articles must first obtain license so to do from village trustees, laying down no rules for guidance of trustees, and prescribing no regulations compliance with which would entitle applicant to receive license, and leaving matter of granting license wholly to arbitrary discretion, held unconstitutional.

9. In testing constitutionality of ordinance, validity of which is attacked, what may be done under its authority, and not merely what has been done, is to be considered.

10. Provision in municipal ordinance that granting of licenses to dealers in junk and secondhand articles shall be "wholly within the discretion of said trustees," is equivalent to grant of an uncontrolled or unlimited or arbitrary discretion, and permits them capriciously to discriminate between various applicants for a license.

ACTION OF TORT by village to recover penalty for non-compliance with ordinance requiring that dealer in junk and secondhand articles must first obtain license so to do from village trustees. Plea, not guilty. Trial by Caledonia County municipal court, Harry Blodgett, Municipal Judge, presiding. Defendant introduced no evidence, but contended that ordinance was unconstitutional and void, and at close of plaintiff's case moved that judgment be granted for defendant, which was overruled, defendant adjudged guilty and fine prescribed by ordinance imposed, with costs. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for defendant to recover his costs.

NOTE.--When this case was argued at the February Term, 1930, it was assigned to MR. JUSTICE WILLCOX. At the May Term, 1930, it was reassigned to MR. JUSTICE MOULTON.

Shields & Conant for the defendant.

Searles Graves & Waterman for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

MOULTON

The defendant was charged with a violation of an ordinance of the village of St. Johnsbury, in that he had conducted a business for the purchase and sale of junk, old metals and secondhand articles, and had maintained a yard for the storage of, and dealing in, such articles, without first having obtained a license so to do. He was tried by the Caledonia County municipal court, and judgment was entered for the plaintiff village to recover the penalty prescribed in the village charter. The case is before us on defendant's exceptions to the refusal of the trial court to enter a judgment in his favor. The grounds for the motion were that the ordinance in question is unconstitutional, because it is repugnant to Articles 1, 4, and 7 of Chapter 1 of the Constitution of Vermont and to the Fourteenth Amendment of the Constitution of the United States.

The ordinance, so far as material, is as follows:

"No person shall engage in business for the purchase, sale or barter of junk, old metals and secondhand furniture, and no person shall collect by purchase or otherwise junk, old metals or secondhand articles from place to place within the corporate limits of the village of St. Johnsbury, or conduct a shop or other place for the storage of or dealing in any such articles without first applying for and receiving a license so to do, which application shall contain a full statement of the conditions under which the said business is to be carried on and such application shall be kept on file in the village Clerk's Office. The place where, and the conditions under which the business shall be conducted shall be determined by said Trustees, but no person shall be granted a license to conduct a yard, or other outdoor place for the business of storing or dealing in junk or old metals, or secondhand articles unless said yard or other outdoor place shall be enclosed by a neat, substantial fence at least six feet high, approved by the Trustees. The license fee shall be Twelve Dollars ($ 12.) and the granting of any such license shall be wholly within the discretion of said trustees and if issued may be revoked at any time for cause. * * * *"

The invalidity of this ordinance is claimed to consist in the fact that it leaves to the arbitrary discretion of the village trustees the question whether anyone can engage in the business mentioned therein and does not specify any rules or regulations upon compliance with which the right to do so can be exercised; so that the defendant is thereby deprived of the right to acquire, use, and enjoy his property; of the equal protection of the law; and of his property without due process of law.

The ordinance is expressly authorized by section 4 of the St. Johnsbury Village Charter (No. 179, Acts 1927), by which the village is empowered, subject to the general law and to certain limitations not here material, to pass ordinances and by-laws respecting "the construction, location and use, and the licensing if the trustees deem necessary of * * * * * * junk business * * * *."

It is argued that the defendant is not in a position to raise the question of the invalidity of the ordinance, because of the alleged arbitrary power therein granted to the board of trustees, since he has made no application for a license, and consequently has not been refused one. Certain language in Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44, 48 L.R.A. 230, and in the same case when later decided by the United States Supreme Court, 177 U.S. 183, 186, 44 L.Ed. 725, 728, 20 S.Ct. 633, is quoted by the plaintiff in support of its contention. What the supreme Court of Illinois said sustains the plaintiff's position, but what the federal Supreme Court said is only the expression of a doubt concerning the matter. We hold that it was not necessary for the defendant to apply for a license and be refused before he could raise the question. If the ordinance is invalid, the board of trustees was without authority either to grant or refuse the license, and it was not necessary for the defendant to do a vain thing before attacking the ordinance which injuriously affected his right. Trustees of Bloomfield v. Bayne, 206 Ky. 68, 266 S.W. 885, 886; Durkin Lumber Co. v. Fitzsimmons (N. J. Err. & App.), 147 A. 555, 557.

It is well settled that statutes providing for the regulation and licensing of the business of dealing in junk and secondhand articles are a valid exercise of the police power of the state. Comm. v. Hubley, 172 Mass. 58, 59 60, 51 N.E. 448, 42 L.R.A. 403, 70 Am. St. Rep. 242; State v. Cohen, 73 N.H. 543, 546, 63 A. 928; Phillips v. State, 77 Ohio St. 214, 82 N.E. 1064, 1065; City of Grand Rapids v. Braudy, 105 Mich. 670, 64 N.W. 29, 31, 32 L.R.A. 116, 55 Am. St. Rep. 472; Shurman v. City of Atlanta, 148 Ga. 1, 95 S.E. 698, 702, 703; City of St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870, 876-878. There is no inherent power in a municipal corporation to enact police regulations. Village of Westville v. Rainwater, 294 Ill. 409, 128 N.E. 492, 493; Catholic Bishop of Chicago v. Palos Park, 286 Ill. 400, 121 N.E. 561; Cleveland Tel. Co. v. Cleveland, 98 Ohio St. 358, 121 N.E. 701, 702; State v. Dannenberg, 150 N.C. 799, 63 S.E. 946, 948; City of Wichita v. Wolkow, 110 Kan. 127, 202 P. 632, 633; St. Paul v. Robinson, 129 Minn. 383, 152 N.W. 777, 779, Ann. Cas. 1916E, 845. But this power may constitutionally be delegated by the state to the municipality. New Orleans Water Works Co. v. New Orleans, 164 U.S. 471, 481, 41 L.Ed. 518, 524, 17 S.Ct. 161; Stoutenburgh v. Hennick, 129 U.S. 141, 32 L.Ed. 637, 638, 9...