Rosenbloom v. State

57 L.R.A. 922, 89 N.W. 1053, 64 Neb. 342, 1902 Neb. LEXIS 184

• Court: Nebraska Supreme Court
• Decided: April 2, 1902
• Docket: No. 12,451
• Status: Published

Opinions

Sullivan, C. J.

Max Rosenbloom, defendant below, having been convicted of peddling in Platte county without a license, seeks by this proceeding to obtain a reversal of the sentence. The statutory provisions which we have occasion to consider in disposing of the questions presented for decision are found in the general revenue law (Compthed Statutes, 1901, art. 1, ch. 77), and are here set out:

“Sec. 152. Peddlers plying their vocation outside of the limits of a city or town within any county in this state and peddlers selling by sample outside of the limits of a city or town within any county in this state shall pay, for the use of said county, an annual tax of twenty-five ($25) dollars; those with a vehicle drawn by one (1) -animal, fifty ($50) dollars; those with two (2) and less than four (4) animals seventy-five ($75) dollars; those with four (4) or more animals one hundred ($100) dollars. Nothing in this section shall be held to apply to parties selling their own work or production, or educational, either by themselves or employes, nor to persons selling at wholesale to merchants, nor to persons selling fresh meats, fruit, farm produce, trees, or plants exclusively.

“Sec. 153. A certificate or license shall be issued to any such peddler by the county clerk, upon the presentation of a receipt showing the payment of the proper tax to the county treasurer, and such certificate, or license, shall be good only in the county where issued, and shall not authorize peddling in cities and towns.

“Sec. 154. Any person peddling outside the limits of a city or town in any county within this state, without such certificate, or license, or after the expiration thereof, shall be deemed guilty of a misdemeanor, and the person actually peddling is liable, whether he be the owner of the goods sold or carried by him or not, and upon conviction thereof, shall be fined the sum of fifty . ($50) dollars and stand committed until the fine is paid, or he be discharged as provided by law; and if any peddler refuses to exhibit his license to any person requiring a view of the same, he shall be presumed to have none, and if, he produces a license upon trial, such peddler shall pay all costs of prosecution.”

It is conceded that the facts alleged in the information exist, but it is insisted that they do not constitute a crime. The argument is that the law taxing peddlers trenches in various ways upon the constitution, and is therefore void. It is said in the first place that the object of the legislation is to raise county revenue, and that revenue measures can not, in this state, bé enforced by the infliction of fines or penalties. We agree with counsel in the view that the primary and paramount, if not the only, object of the law, is to obtain revenue, by imposing a tax upon the. business of peddling. The only thing the peddler is required to do is to pay his tax, and exhibit the appropriate evidence of payment to any person who may wish to see it. The only thing he is forbidden to do is to pursue his calling without having first paid the tax. No police inspection or supervision is provided for. If the things commanded and forbidden are to be regarded as features of regulation or repression, they are not, to say the least, so pronounced .or conspicuous as to suggest the idea that the law is referable to the police power, rather than to the power of taxation. But granting the contention of counsel for defendant that the statute is a revenue measure, pure and simple, we are not able to discover any valid objection to the enforcement of it in the manner provided by the legislature. It is settled doctrine in this and in every other jurisdiction that courts will not adjudge statutes unconstitutional unless they are plainly so. Now with what express provision of the higher law does the statute in question clash? We know of none. It may, perhaps, be said that imprisonment for debt has been abolished; but taxes are not debts, within the meaning of the constitution, and if they were, the provision with respect to a fine and that with respect to imprisonment . are not so inseparably connected that they must stand or fall together. “The law abolishing imprisonment for debt,” says Judge Cooley, “has no application to taxes; and the remedies for their collection may include an arrest if the legislature shall so provide.” Cooley, Taxation [2d ed.], 17. In speaking of license taxes the learned author further remarks that it is still customary to enforce payment of them by arrest and imprisonment, adding that “a constitutional provision' inhibiting imprisonment for debt has no application to the case of a license tax.” Cooley, Taxation, 438. Among the many cases sustaining this view, we cite the following: Appleton v. Hopkins, 5 Gray [Mass.], 530; Daggett v. Everett, 19 Me., 373; McCaskell v. State, 53 Ala., 510; Commonwealth v. Byrne, 20 Gratt. [Va.], 165; Denver City R. Co. v. City of Denver, 21 Colo., 350; City of St. Louis v. Sternberg, 69 Mo., 289; Campbell v. City of Anthony, 40 Kan., 652; City of Bozeman v. Cadwell, 36 Pac. Rep. [Mont.], 1042; City of Cincinnati v. Buckingham, 10 Ohio, 257; In re Dassler, 35 Kan., 678. Limitations upon legislative power are to be found in written constitutions; it has not been customary to look for them in the opinions of the courts. When it pleased the people of this state to put an end to the ancient practice of seizing the person of a debtor as a means of coercing payment of a debt, they put into the bill of rights this expression of their sovereign will: “No person shall be imprisoned for debt in any civil action on mesne or final process unless in cases of fraud.” Bill of Rights, sec. 20. This language is terse and lucid; it means just what it says, and, when considered in the light of familiar history, it seems hardly possible to misunderstand it. It deals only with procedure in civil actions,—actions having for their object the collection of debts; it has no application to the civil liability created by the bastardy act (Ex parte Cottrell, 13 Nebr., 193; Ex parte Donahoe, 24 Nebr., 66), and it has certainly no relation whatever to criminal actions brought by the state to punish the violation of a public law. The just and humane policy of abolishing imprisonment for debt can not be too highly commended, but an extension of that policy by judicial decision can be defended only on the theory that beneficent usurpation is justifiable. Three eases decided by this court (State v. Green, 27 Nebr., 64; Magneau v. City of Fremont, 30 Nebr., 843, and Templeton v. City of Tekamah, 32 Nebr., 542) declare that penal provisions of an occupation tax ordinance are unenforceable.; but these decisions do not profess to rest in either reason or authority, and are, in our judgment, contrary to both. If they had become a rule of property, we should certainly adhere to them, but since they have not, we think they should not be regarded as binding precedents ; and they are accordingly overruled.

Another ground upon which the law is assathed is that section 154, which prescribes penalties for peddling without a license, is not embraced within the title of the act. The title is a very comprehensive one; it is “An act to provide a system of revenue,” and, ex vi termini, covers the entire subject of taxation; it comprehends the selection of the persons, property and franchises to be taxed, the manner and method' of. making the assessment, equalization and levy, the amount of revenue to be raised, the means or machinery by which the taxes are to be collected, and many other matters obviously germane to a general scheme or plan for providing funds with which to defray the necessary expense of maintaining a state and local government. A law to provide a system- of revenue would be singularly weak and -inefficient if it did not make adequate provision for the collection of taxes. In fact, every revenue law does contain such provisions. The usual and appropriate method of enforcing payment of a property tax is by the addition of an increased rate of interest, which is in truth a penalty, .and by the sale of the taxed property. But payment of taxes on occupations can not be enforced in this way and hence the ordinary, and often the only effective, method of compelling payment, is by fine and imprisonment of the person upon whom the tax is imposed. In the recent case of Nebraska Loan & Building Ass’n v, Perkins, 61 Nebr., 254, it is said: “If no portion of the bill is foreign to the subject of legislation, as indicated by the title, however general the latter may be, it is in harmony with, the constitutional mandate.” Tested by this rulé it is, we think, entirely manifest that the penal provision of section 154 is covered by the title of the act.

A further contention of counsel for defendant is that, by reason of the exceptions contained in section 152 the law lacks the essential requirement of uniformity. The constitution (art. 9, sec. 1) declares that the legislature may impose a tax upon persons engaged in certain occupa.tions “in such manner as it shall direct by general law, uniform as to the class upon which it operates.” This provision undoubtedly contemplates that all persons pursuing the same business or calling under the same conditions and circumstances shall be treated alike, and subjected to the same burdens; in other words, partiality and favoritism are forbidden, and equality before the law is made a rule of legislative action. But as was said by the supreme court of Pennsylvania in Seabolt v. Northumberland County, 187 Pa. St., 318, “Classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones, used for the purpose of evading the constitutional prohibition.” In the case of State v. Farmers & Merchants' Irrigation Co., 59 Nebr., 1, 4, we had occasion to consider this question, and reached the conclusion, after a pretty thorough examination of the authorities, that the “classification, to be valid, must rest on some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects classified.” The real test of the validity of defendant’s objection to this statute is not whether the classification is wise and just, but whether the legislature acted arbitrarily,—whether, without an adequate determining principle, it made a division of peddlers into two classes, and then sought to deprive one class of their constitutional right to the equal protection of the laws. If there is a genuine and substantial distinction between persons who go from house to house, and place to place, vending their own products,, and those who sell in the same manner the productions of others, the classification is founded in the nature of things, and is therefore upon a basis everywhere recognized as lawful. Now, there is, in our opinion, such a marked and material difference between the two classes of peddlers as to make it entirely proper for the legislature, acting on considerations of general policy, to tax one class and to permit the other to go free. The man who goes about the country selling what he has himself produced may be presumed to confer a benefit upon the general public by eliminating the profits of the retail merchant, and perhaps even those of the wholesaler and jobber. He has a fixed abode where he produces the things which he sells, and where he may be reached and required to make good his warranties. He is generally the owner of immovable property which is subject to state and local taxation. It may be that he is required by the municipality in which he lives to pay a poll tax and a tax upon his business; to build and repair sidewalks, and keep the same free from snow, ice and other obstructions. He contributes to the social, educational and financial prosperity of the community in which he' resides. He bears a just share of the burdens of government. And, in addition to all this, it must be remembered that the sale of his products is only incidental to the business of producing them. These characteristics, speaking generally, distinguish the untaxed peddler from the peddler who is taxed, and they are, it seems to us, quite sufficient to justify the classification which the legislature has made. In State v. Stevenson, 109 N. Car., 730, a license tax upon merchants was upheld although it exempted purchasers of farm products from the producers. The court, after observing that the law puts all merchants dealing in farm products purchased of the producers in one class, and all other merchants in another class, and treats all in each class alike, goes on to say: “There is no discrimination in either class. The power to select particular trades or occupations and subject them to a license tax can not be denied to the legislature—nor the power to tax such, trades according to different rules, provided the rule in regard to each business is uniform.” The supreme court of Maine had before it in a recent case the question we are now considering. State v. Montgomery, 43 Atl. Rep., 13, 16. In delivering judgment sustaining the law, Savage, J., said: “It is contended that the exception which permits one to peddle without license ‘the products of his own labor, or the labor of his family, any patent of his own invention, or in which he has become interested by being a member of any firm, or stockholder in any corporation which has purchased the patent,’ is a discrimination in favor of some and against others. We do not think so. If one may peddlé freely the products of his own labor, so may all. The products may be unlike, but the freedom to prosecute one’s own business and to peddle his own products is free alike to all. So of the other exceptions. Whthe it may happen that various producers may peddle each the product of his own labor without license, but not of the labor of another, still we think this fairly answers the requirements of uniformity. The legislature is the sole judge of the extent to which the business of peddling should be regulated, and its conclusions are final, so long as the burdens imposed do not bear unevenly upon citizens. Ex parte Thornton, 12 Fed. Rep., 538.” This decision is in conflict with State v. Wagener, 69 Minn., 206, referred to in the brief of counsél for defendant. In each case the statute construed was held to be a police regulation having for its object the protection of the public. In this case we have no occasion to determine which view of the matter is correct, because the classification in our statute was made for the purpose of taxation and not for the purpose of regulating the business of peddling. It is plain, of course, that a particular classification may be valid if the object of the legislation is revenue, and invalid if the object is regulation.

The law is also assathed on the ground that it lacks definiteness and certainty, but we think there is so little merit in this objection that it may be overruled without discussion.

The judgment of the district court is

Affirmed.