Brunner v. Harrison (Vil.)

15 Ohio C.C. Dec. 247

• Court: Hamilton Circuit Court
• Decided: December 8, 1902
• Status: Published

Opinion

GIFFEN, J.

The plaintiff in error was convicted and sentenced to pay a fine of one dollar and costs of prosecution for violating Sec. 2 of Ordinance 10® of Harrison, Ohio, which provides:

“That every person who comes into this village temporarily in order to represent some business located elsewhere, and to solicit orders for goods either at wholesale or retail or to sell any such goods on commission, shall be held and deemed to be a transient dealer; and it shall be unlawful for any such transient dealer as above defined, to sell, offer to sell, bargain to sell or solicit orders for goods at wholesale or retail within said village without having first obtained a license from the mayor thereof.”

This section discriminates in favor of persons who form a purpose afler coming temporarily or otherwise into the village, and against those who come temporarily with the purpose, of representing some business elsewhere, etc., and is an unreasonable exercise of the power granted to municipalities. Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. Rep. 884; 17 L. R. A. 184],

• It is urged, however, that the general scheme of the ordinance includes and applies to all persons within the village, and that Sec. 4 applies to any and all persons.

“Section 4. That it shall be unlawful for any person while on the street or traveling from place to place about said village, to sell, bargain to sell or solicit orders for goods, wares or .merchandise by retail without having first obtained a license therefor from the mayor of said village.”

Under this section if a merchant of the village should perchance step out of his store onto the street and “sell or bargain to sell” goods to his customer, or if he should move a few paces farther to another place and sell or bargain to sell goods to another customer he would violate this section of the ordinance.

Such results would be an intolerable interference with and restraint of trade.

Judgment reversed.