City of Marshalltown v. Blum

Beck, J.

1. MUNICIPAL corporations : license to peddlers: when void. I. Three cases, bearing the same title, all appealed from the Marshall District Court, and involving the same facts and questions of law, are submitted for our decision together. This opinion will be ° r applicable to each case and like judgments will be entered in all.

An ordinance of the city of Marshalltown, concerning licenses, contains the following provisions:

“Section 29. Any person, except as provided in the foregoing sections, whose business it is to sell at retail any goods, wares, or merchandise, along, or upon the public streets or grounds, or from house to house within 'the city, *185 shall pay not less than one, nor more than twenty-five dollars for a fixed time, in the discretion of the mayor, provided that no person shall sell from, or keep any stand upon any street, alley, or sidewalk, without the consent of the owner or occupant of the premises adjoining and nearest to said stand; and said occupant must also have a permit from the mayor. This section shall not be construed so as to require license of persons selling agricultural or horticultural products; nor of persons in their employ, nor to any person selling by sample at wholesale; neither shall it apply to any sale under a process of law, nor to persons retailing their own productions, or of their own manufacture, if they reside in, and the goods are manufactured i/n, Ma/rshall county.”

The defendant failing to take out license under this ordinance was fined in each of the three cases. Upon these appeals, he insists, among other objections to the judgment, that the ordinance of the city, under which he was prosecuted, is in conflict with Art. 7, Sec. 8, of the Constitution of the United States, which bestows upon Congress power to regulate commerce between the States.

The defendant was a resident of the State of Illinois, and the goods which he sold were not manufactured in Marshall county.

II. The provision of the ordinance in question, exempting from its operation residents of Marshall county selling goods manufactured in that county, in effect, is almost identical with a statute of the State of Missouri considered in Welton v. The State of Missouri, 91 U. S., 275 , which provides that whoever deals in goods, merchandise, etc., which are not the “growth, produce, or manufacture” of the State, by going from place to plafee as a peddler, is subject to a fine for dealing without license, which, it is prescribed, shall be issued upon payment of a sum fixed by the statute. Persons selling articles which are the “growth, produce, or manufacture” of the State, are not required to take out licenses. The Supreme Court of the United States, in the case named, held *186 that the statute was a regulation of commerce and an en croachment upon the power conferred by tbe Constitution upon Congress, and, therefore, void. It is needless to recite tbe arguments and reasoning upon which tbe decision is based. It is to be regarded as an authoritive exposition of tbe Constitution of tbe United States which must be followed by this court.

It appears to us that tbe ordinance of tbe city in question is even more objectionable than tbe Missouri statute, for tbe reason that tbe restriction upon trade prescribed by tbe ordinance, has respect, not only to tbe place of production of the merchandise, but also tbe place of residence of tbe peddler. Tbe case just cited, in our opinion, is decisive of tbe question before us, and requires us to reverse tbe judgments of tbe court below.

III. But, it is said, that tbe decision of tbe United States Supreme Court is based upon tbe fact that tbe law of Missouri imposes a tax, and that in tbe case before us, tbe ordinance provides for licenses, which are necessary in enforcing mere police regulations. In tbe opinion of that court, it is true, tbe expression license tax is used in referring to tbe restriction upon commerce created by tbe Missouri statute. Tbe same term would describe tbe restriction under tbe ordinance in question. It does not appear that the object of tbe Missouri statute is to. provide for taxation, or that it has a purpose at all different from tbe ordinance in_ question. Each provides for licences upon tbe payments to be made by tbe peddlers.

Tbe money exacted for tbe licenses from tbe peddlers is to be regarded as a tax upon tbe goods they sell, and tbe discrimination against persons not residents of tbe county, and against goods not manufactured in tbe county, is a regulation, of commerce, not within tbe power of tbe States to enforce. This is tbe doctrine of tbe United States Supreme Court which we are bound to-follow. Tbe judgment of tbe District Court in each case must be

Reversed.