Woolf v. Fuller

• Decision Date: 28 June 1934
• Parties: WOOLF et al. v. FULLER et al.
• Court: New Hampshire Supreme Court

174 A. 193

WOOLF et al.

v. FULLER et al.

Supreme Court of New Hampshire. Hillsborough.

June 28, 1934.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Rill by Frank Woolf and others against Enoch D. Fuller and others, wherein court transferred without ruling all questions raised by the pleadings to the Supreme Court.

Case discharged.

Bill to enjoin interference with the plaintiffs' business. On March 28, 1933, they opened a retail shoe store in Manchester, having taken a lease of the store for a year and equipped it with permanent fixtures. Their purpose to run the store for the term of the lease or longer is not questioned.

They claim that they were not subject to the statute relating to itinerant vendors (Pub. Laws, c. 158, as amended by Laws 1931, c. 50, and Laws 1933, c. 48). The defendants are public officials charged with the duty of enforcing the statute. They ordered the plaintiffs to close their store with a threat of immediate arrest for violation of the statute if the order was disregarded. The order was served four or five months after the opening of the store and after the plaintiffs had asserted that the statute did not apply to them.

The court transferred without ruling all questions raised by the pleadings, and in particular whether the plaintiffs were itinerant vendors as defined by the statute, and, if so, whether in its application to them the statute is void under either the Federal or the state Constitution.

Timothy F. O'Connor and Myer Saidel, both of Manchester (Mr. Saidel orally), for plaintiffs.

Francis W. Johnston, Atty. Gen., Thornton Lorimer, Asst. Atty. Gen., and John J. Sheehan, Co. Sol., of Manchester (Mr. Lorimer orally), for defendants.

Laurence I. Duncan and Robert W. Upton, both of Concord, amici curiae.

ALLEN, Justice.

The objection to the form of the proceeding is that the plaintiffs have adequate remedy at common law. The statute requires itinerant vendors to pay a state license fee and to deposit a specified sum with the secretary of state for specified purposes. Violation of the statute is made a misdemeanor. It also requires the payment of a local license fee in the place where the business is conducted, under penalty of a fine for each day of neglect or refusal. The bill alleges irreparable damage to the plaintiffs' business and credit if the defendants should carry out their threat to prosecute unless the store was closed.

Any right the defendants may have had to seek the closing of the business no longer exists. The plaintiffs are not now itinerant vendors. If they were such before or when the bill was brought, lapse of time since then has terminated a business of that character. Their business as established storekeepers may not be interfered with for a wrongful conduct of it before, as the defendants say, they became such. The defendants now seek no such interference.

No injunction against the collection of the state license fee is sought. Nor is any allegation made of the need of protection against the city of Manchester by reason of the opening of the store without payment of the local license fee. Neither the city nor its tax collector, upon whom the statute imposes the duty of collecting the local fee, is a party to the bill. The right of relief in equity from paying an illegal state tax or a state or local license fee, not recoverable if paid without statutory provision for recovery, is therefore not relied upon in support of the bill. Nor is it alleged that there was any existing demand when the bill was filed for the deposit with the secretary of state to be made.

In consequence, no irreparable damage may now result unless from the prosecution of the plaintiffs as misdemeanants. Authority is to be found for enjoining the prosecution of an unconstitutional statute when the prosecution involves a direct invasion of property rights resulting in irreparable loss. 32 C. J. 282, § 447, and cases cited. Such an invasion of rights from prosecution alone is not here alleged, and may not be asserted upon any facts pleaded.

But if the plaintiffs may not now be entitled to injunctive relief, the bill may be amended by transforming it into a suit for a declaratory judgment. The procedural situation is in all respects like that in Tirrell v. Johnston, 86 N. H. 530, 171 A. 641. The plaintiffs make a claim of "a present legal * * * right" (Laws 1029, c. 86) not to be prosecuted. The essential issue relates to the validity of the statute as an exercise of the police power, either generally or in application to the plaintiffs, and such an issue may be determined under the declaratory judgment act. Faulkner v. Keene, 85 N. H. 147, 152-157, 155 A. 195. The issue has been argued and is to be considered. Tirrell v. Johnston, supra.

Upon the question whether the plaintiffs come within the statutory definition of "itinerant vendors," the act and its amendments which deal with such persons in terms include them. No distinction, if one might be valid, is made between residents and nonresidents either of the state or of the town or city where the business is carried on. Nor, in the amendments, is any difference expressed between those opening a store for temporary occupancy and those opening one for a period intended to be more than temporary. In their literal language, their effect is to eliminate intent in the test of a temporary character of the business opened. They are silent in respect thereto and the exceptions therein of storekeepers engaging in business for defined lengths of time indicate that external and physical facts are alone to control in determining whether the business is temporary within the meaning of the word as the legislation employs it. Since it defines a temporary business, there is no inconsistency in either of the amendments because of the fact that the definition is not that usually given such a business. Unless by force of a special rule of construction available in passing upon the constitutionality of legislation, to be later stated, the plaintiffs are within no exception of the act.

With reference to the state Constitution, itinerant vendors are a subject of the exercise of the police power in some promotion of the general welfare. "The object of the statute would seem to be to protect the public from the imposition liable to be practiced upon it by itinerant vendors who are not hawkers or peddlers, because hiring, leasing, or occupying a building for their business, but who sell temporarily or transiently in one locality, or in traveling from place to place, goods, wares, or merchandise, and who might naturally be supposed to be free, to some extent at least, from the restraints and influences inducing fair and honest dealing which apply to persons established permanently in trade in a given locality." Commonwealth v. Crowell. 156 Mass. 215, 216, 30 N. E. 1015.

That the legislation may he of some public benefit is not enough, under the state Constitution, to give it validity. In addition, it must not impair or destroy private rights guaranteed by the Constitution. While in its valid exercise the police power may either forbid conduct or permit it under regulation (State v. Roberts, 74 N. H. 476, 479, 69 A. 722, 16 L. R. A. (N. S.) 1115, and cases cited), and while it is said that, "The court does not inquire into the expediency or wisdom of such legislation" (Id., page 480 of 74 N. H., 69 A. 722, 724, and cases cited), yet it is "subordinate to the equality of privilege and of burden secured by the bill of rights and guarantied by the constitution." State v. Jackman, 69 N. H. 318, 332, 41 A. 347, 349, 42 L. R. A. 438. "And, although the reasonableness of a statute relating to public welfare is not ordinarily a question on which the court can properly pass (State v. Jackson, 71 N. H. 552, 554, 53 A. 1021, 60 L. R. A. 739; Sundeen v. Rogers, 83 N. H. 253, 256, 257, 141 A. 142. 57 A. L. R. 950, and cases cited), the right of acquiring and possessing property is guaranteed to all persons by the Constitution (Bill of Rights, art. 2). * * *." State v. Lothrops-Farnham Company, 84 N. H. 322, 323, 150 A. 551, 553. "* * * An equal property right is so specifically guaranteed in the Bill of Rights that it necessarily limits all subsequent grants of power to deal adversely therewith." Eyers Woolen Co. v. Gilsum, 84 N. H. 1, 21, 146 A. 511, 521, 64 A. L. R. 1196. "The true view is that both of these provisions of the fundamental law [one granting legislative power and one reserving individual rights] are to be considered together as interdependent, the one qualifying and limiting the other; otherwise it would result that due effect could not be given to both at the same time. Neither is supreme in a sense that would deprive the other of its effectiveness as a part of the fundamental law." State v. Ramseyer, 73 N. H. 31, 34, 58 A. 958, 960, 6 Ann. Cas. 445. "The test usually employed in this state to determine the constitutionality, not of the purpose the Legislature had in view when it enacted a statute, but of the means it employed to effectuate a constitutional purpose, is to inquire whether the restrictions it imposes on rights secured to individuals by the Bill of Rights are unreasonable (State v. Normand, 76 N. H. 541, 543, 85 A. 899, Ann. Cas. 1913E, 996), and not whether it imposes any restrictions on such right." Carter v. Craig, 77 N. H. 200, 205, 90 A. 598, 600, 57 L. R. A. (N. S.) 211, Ann. Cas. 1914D, 1179.

While the courts may not condemn police legislation because they regard it as inexpedient or unwise, yet the expediency is to be taken into account, in respect to the importance of the public benefit the legislation seeks to promote, as well as the means it adopts to secure the benefit. Expediency involves utility, and if the legislation is directed to a public interest of minor concern, while imposing serious restrictions in regulation or bar of guaranteed rights to accomplish the interest, it tends to...