Ideal Tea Co. v. Salem

150 P. 852, 77 Or. 182, 1915 Ore. LEXIS 101

• Court: Oregon Supreme Court
• Decided: July 27, 1915
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Moore.

1. When, under color of void legislation relating to misdemeanors, the prosecution of an alleged offender is threatened, which attempted enactment if enforced would deprive a party of a valuable property right, a court of equity, upon proper application, will intervene, and by injunction prevent the menaced injury: Sandys v. Williams, 46 Or. 327 (80 Pac. 642); Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328, 120 Am. St. Rep. 786); Renshaw v. Lane County Court, 49 Or. 526 (89 Pac. 147); Hall v. Dunn, 52 Or. 475 (97 Pac. 811, 25 L. R. A. (N. S.) 193); Guernsey v. McHaley, 52 Or. 555 (98 Pac. 158); Portland Fish Co. v. Benson, 56 Or. (108 Pac. 122); Wiley v. Reasoner, 69 Or. 103 (138 Pac. 250); Sherod v. Aitchison, 71 Or. 446 (142 Pac. 351).

2, 3. It is almost universally held that a person who, by displaying samples, solicits orders for the sale of goods for future delivery, is not a “peddler”: Scribner v. Mohr, 90 Neb. 21 (132 N. W. 734, Ann. Cas. 1912D, 1287, 1293). The legislative assembly of a state may adopt reasonable modifications of former definitions of words, so as to make their interpretation conform to modern usage: Ex parte Case, 70 Or. 291 (135 Pac. 881, 141 Pac. 746). Whether the common council of the City of Salem, without an express grant of authority for that purpose, which is not to be found in the organic law of the municipality, can prescribe the meaning of words different from their usual acceptation, would seem to be very doubtful, for in subdivision 5 of Section 6 of the charter authority is given “to prevent and remove nuisances, and to declare by general rules what shall constitute the same,” and in subdivision 28 thereof power is conferred “to define what shall constitute vagrancy”: Laws Or. 1899, pp. 924, 928. But, however this may be, it will be assumed, without deciding the question, that the interpretation of the word “peddler” as given in the ordinance was justified, by the charter.

4. The clause of the fundamental law, invoked to defeat Section 13 of the ordinance assailed, reads:

“No law shall be passed granting to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens”: Article I, Section 20 of the Constitution of Oregon.

This interdiction, though evidently enacted to restrict the legislative assembly, also operates as a limitation upon the common council of a municipality, thereby preventing any discrimination against nonresidents in occupation or license taxes: McQuillin, Mun. Ord., § 219.

5. The ordinance imposing a license upon peddlers who have no regular place of business in Salem, but who solicit therein orders for the sale and the future delivery of tea, coffee, spices, etc., should not be classed as an exercise of the police power, since it would seem that such business could not injuriously disturb the peace, molest the order, impair the health, violate the morality or annoy the society of the city: McQuillin, Mun. Ord., § 260; People ex rel. v. Jenkins, 202 N. Y. 53 (94 N. E. 1065, 35 L. R. A. (N. S.) 1079); Sayre v. Phillips, 148 Pa. 482, 488 (24 Atl. 76, 33 Am. St. Rep. 842, 16 L. R. A. 49). In the latter case, Mr. Justice Williams, speaking for the court, says:

“If a statute, or municipal ordinance, is in reality directed only against certain persons who are engaged in a given business, or against certain commodities, in such manner as to discriminate between the persons who are engaged in the.same trade or pursuit, in aid of some at the expense of others, such statute or ordinance is not a police, but a trade regulation; and it has no right to shelter itself behind the police power of the state or the municipality.”

See, however, the notes to the case of State v. Bayer, 19 L. R. A. (N. S.) 297, 301.

Judge Dillon, in his valuable work on Municipal Corporations (5 ed., Section 593), remarks:

“As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal, and if done by another not so, ordinances which have this effect cannot be sustained.”

Thus in Graffty v. City of Rushville, 107 Ind. 502, 508 (8 N. E. 609, 612, 57 Am. Rep. 128), it was held that an ordinance requiring a peddler, who was not a resident of the city, and who proposed to sell wares and merchandise which were not grown or manufactured in the county in which the municipality was situated, to procure a license and pay a fee therefor before he could lawfully follow his calling in such city, discriminated against the citizens and products of other communities, and for that reason was void because it violated a clause of the Constitution of Indiana which provided:

‘ ‘ The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens”: Article I, Section 23.

To the same effect, see, also, Ex parte Frank, 52 Cal. 606 (28 Am. Rep. 642); City of Marshalltown v. Blum, 58 Iowa, 184 (12 N. W. 266, 43 Am. Rep. 116); Town of Pacific Junction v. Dyer, 64 Iowa, 38 (19 N. W. 862); City of Saginaw v. Circuit Judge, 106 Mich. 32 (63 N. W. 985); State ex rel. v. Nolan, 108 Minn. 170 (122 N. W. 255); State v. Williams, 158 N. C. 610 (73 S. E. 1000, 40 L. R. A. (N. S.) 279); Sayre v. Phillips, 148 Pa. 482 (24 Atl. 76, 33 Am. St. Rep. 842, 16 L. R. A. 49); Commonwealth v. Snyder, 182 Pa. 630 (38 Atl. 356).

“It is true a state,” says Mr. Justice Bean in State v. Wright, 53 Or. 344, 349 (100 Pac. 296, 298, 21 L. R. A. (N. S.) 349), “may impose a tax on, or require a -license from, persons engaged in certain callings or trades, without being hound to include all persons or all property that may he legitimately taxed for governmental purposes. * * But the classification must he on some reasonable basis, and the law, when enacted, must apply alike to all engaged in the business or occupation.”

See the notes to this case in 21 L. R. A. (N. S.) 349. To the same effect, see Moffitt v. City of Pueblo, 55 Colo. 112 (133 Pac. 754); Ex parte Case, 70 Or. 291 (135 Pac. 881, 141 Pac. 746).

6. In the case at bar, the business in which the plaintiffs are engaged is identical with that of some of the merchants of Salem whose employees daily visit the houses of their customers, taking orders for groceries which are later delivered, except that the plaintiffs do not have a regular place of business in that city. Section 13 of the ordinance in question is a clear violation of Section 20 of Article I, of the Constitution of the state, and for that reason is void.

No error was committed in overruling the demurrer. The judgment should therefore be affirmed, and it is so ordered. Affirmed.

Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice Harris concur.