State ex rel. Town of Sharon v. Smithart

105 N.W. 128, 128 Iowa 631

• Court: Supreme Court of Iowa
• Decided: October 21, 1905
• Status: Published

Opinion

Ladd, J.

The section of the ordinance under which the defendant was prosecuted declares that:

Peddlers with packs shall pay a license fee of $15 per year, or not less than $1 per day nor more than $5 per day; those with a vehicle, drawn by one or more animals, shall pay not to exceed $30 per year. No license shall be granted for less than one year except a daily license. Every person selling or offering for sale, barter or exchange, either by sample or taking orders, whether for immediate or future delivery, any goods, wares or merchandise shall be deemed a peddler.

The accused solicited and received orders for tea, coffee, and notions, within the corporate limits, as an employe of the D. & W. Tea Company for present and future delivery, and for it sometimes delivered the goods when other orders were solicited. This may have constituted him a peddler within the definition of the ordinance. This was not enough, for it exacts a license from peddlers with pack or vehicle only, and defendant was not shown to have had either. What he did without license was not prohibited.

Before such an ordinance can be assailed as unconstitutional the record should establish its violation. A mere concession to that effect, when not true, raises but a moot question which the courts will not decide.— Affirmed.