Some statutes enlarge on the term peddling and regulate those soliciting orders. Of course, this exercise of the police power by the state to be valid must be a reasonable exercise, for if it is unreasonable it is contrary to the fourteenth amendment to the federal constitution.18 In some cases it might be reasonable to regulate a business or trade which it would be unreasonable to prohibit, but it seems that there is nothing in the nature of things to prevent a legislature from prohibiting a trade that it can regulate. In each case the test must be this: on the facts of the case can the legislature be said to have acted unreasonably. So the authorities holding that peddling may in some cases be prohibited seem to be correct,19 and those making the intimation that a legislative body has no power to prohibit peddling 20 must be questioned. The phrase "peddling is a lawful business and therefore cannot be prohibited though it may be regulated" is the predication of a conclusion on a conclusion rather than a reason, for peddling is a lawful business only in so far as it does not endanger the health, morals, or general welfare of the people, and therefore it is immune from prohibition only in case such would be an unreasonable exercise of the police power, an unreasonable step to take to protect the public. The point has been made that to prohibit ped

See LICENSES, vol. 17, p. 541 et seq.

17. Ex parte Case, 70 Ore. 291, 135 Pac. 881, 141 Pac. 746, Ann. Cas. 1916B 490; Titusville v. Brennan, 143 Pa. St. 642, 22 Atl. 893, 24 A. S. R. 580, 14 L.R.A. 100, reversed on another point in 153 U. S. 289, 14 S. Ct. 829, 38 U. S. (L. ed.) 719.

18. See infra, par. 15–18.

So. 716, 8 L.R.A. (N.S.) 304; Thousand Island Park Ass'n v. Tucker, 173 N. Y. 203, 65 N. E. 975, 60 L.R.A. 786; Ex parte Case, 70 Ore. 291, 135 Pac. 881, 141 Pac. 746, Ann. Cas. 1916B 490; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 A. S. R. 645, 7 L.R.A. 666 and note; Com. v. Harmel, 166 Pa. St. 89, 30 Atl. 1036, 27 L.R.A. 388; Titusville v. Brennan, 143 19. Powell v. Pennsylvania, 127 U. Pa. St. 642, 22 Atl. 893, 24 A. S. R. S: 678, 8 S. Ct. 992, 1257, 32 U. S. 580 and note, 14 L.R.A. 100, reversed (L. ed.) 253; Shelton v. Mobile, 30 on another point in 153 U. S. 289, 14 Ala. 540, 68 Am. Dec. 143; State v. S. Ct. 829, 38 U. S. (L. ed.) 719; Namias, 49 La. Ann. 618, 21 So. 852, Sayre v. Phillips, 148 Pa. St. 482, 24 62 A. S. R. 657; Thousand Island Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49; Park Ass'n v. Tucker, 173 N. Y. 203, State v. Foster, 22 R. I. 163, 46 Atl. 65 N. E. 975, 60 L.R.A. 786; Com. v. 833, 50 L.R.A. 339; In re Watson, Gardner, 133 Pa. St. 284, 19 Atl. 550, 17 S. D. 486, 97 N. W. 463, 2 Ann. 19 A. S. R. 645, 7 L.R.A. 666; Sayre Cas. 321; State v. Bayer, 34 Utah 257, v. Phillips, 148 Pa. St. 482, 24 Atl. 97 Pac. 129, 19 L.R.A.(N.S.) 297; Morrill v. State, 38 Wis. 428, 20 Am. Rep. 12, reversed on another point in 154 U. S. 626, 14 S. Ct. 1206, 23 U. S. (L. ed.) 1009; Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 A. S. R. 955.

Notes: 48 A. S. R. 236; 125 A. S. R. 33; 129 A. S. R. 276; Ann. Cas. 1914D 938.

76, 33 A. S. R. 842, 16 L.R.A. 49

Notes: 27 A. S. R. 563; 78 A. S. R. 250; Ann. Cas. 1916A 1238.

20. Iowa City v. Glassman, 155 Ia. 671, 136 N. W. 899, 40 L.R.A.(N.S.) 852; State v. Wagener, 69 Minn. 206, 72 N. W. 67, 65 A. S. R. 565, 38 L.R.A. 677.

Notes: 65 A. S. R. 568; Ann. Cas. 1914D 938.

dling without a license and then to provide no prerequisites to the procuring of the license save the payment of money is not a step toward safeguarding the public. In answer to this it may be said that the mere fact that a money payment is required is in itself a protection since it tends to decrease the number of peddlers and, especially, to exclude those who are most irresponsible; that to secure a license, the peddler must put himself in touch with the police authorities, which is a detriment to those who would be most objectionable; and finally that the money paid for the license helps to meet the expense of more efficient policing of the district over which the peddler operates. It must always be kept in mind that a license tax on peddlers is aimed at the manner of conducting the sale and not at the sale itself or the goods that are sold, and the regulation frequently takes a form other than a mere license requirement. For example, statutes have been passed and upheld regulating the use of streets by peddling; forbidding the public outcry of goods by peddlers; providing that the peddler shall make a deposit with the county treasurer which shall be available on behalf of his creditors for claims arising in connection with his business transacted under the license; requiring peddlers to exhibit their licenses, on demand, to any peace officer, or to any citizen householder in the county; regulating local markets by prohibiting all peddling of market foods; and restricting peddling to certain districts.

9. In Exercise of Taxing Power.-In addition to regulating peddling by means of an exercise of the police power it seems clear that the state may justify a license tax as an exercise of another power, namely, the taxing power. It appears to be the concurrent voice of all the authorities that in the absence of any inhibition, express or implied, in the state constitution the legislature has power to levy and collect license taxes on any business or occupation. It is also settled that peddling is an occupation,10 and that a tax may be levied

Notes: 48 A. S. R. 236; 139 A. S. R. La. Ann. 618, 21 So. 852, 62 A. S. R. 339; 3 L.R.A. 705.

3. Shreveport v. Dantes, 118 La. 113, 42 So. 716, 8 L.R.A. (N.S.) 304; Com. v. Fox, 218 Mass. 498, 106 N. E. 137, Ann. Cas. 1916A 1236.

4. Goodrich v. Busse, 247 Ill. 366, 93 N. E. 292, 139 A. S. R. 335, 20 Ann. Cas. 589.

5. Ex parte Case, 70 Ore. 291, 135 Pac. 881, 141 Pac. 746, Ann. Cas.

657.

8. Notes: 78 A. S. R. 250; Ann. Cas. 1916A 1238.

9. Welton v. Missouri, 91 U. S. 275, 23 U. S. (L. ed.) 347. See LICENSES, vol. 17, p. 503.

10. Welton v. Missouri, 91 U. S. 275, 23 U. S. (L. ed.) 347. Note: Ann. Cas. 1916A 1200.

on and collected from those following it.11 A comparison of the cases on the subject of licensing of peddlers 12 shows that the great majority of them have treated the license requirement as a police measure. It would seem that it is a tax only when the raising of revenue is the main purpose for which it is imposed, for it is certain that a police. measure might have revenue as a minor object, and the fact that the tax is graduated in accordance with the amount of business done by a peddler or with his mode of locomotion 18 does not brand it as either a police measure or a pure tax. For the measure of the danger to a community from a peddler and the cost of surveillance over him might well vary with the number of the people he does business with. Likewise the measure of his contribution to the government might well be made to vary with the volume of his business.14 Ordinarily it is immaterial to the decision of a case whether the license requirement is a measure adopted for the purpose of raising revenue or for the purpose of regulating the conduct of a business, and several cases have held that a license statute could be sustained on either ground, stating that it was unnecessary to decide in which class the statute would fall.15 However, in case of the prohibition of peddling, justifiable under the police power,16 different considerations would enter it when the taxing power alone is considered, for a tax which is so heavy as to amount to a prohibition on a legitimate occupation would surely be bad.17 It is nothing but just that peddlers should pay a certain. tax to the communities through which they work. They contribute nothing to the social, educational, and financial prosperity of the community as do resident merchants, and most commonly they escape the payment of all other taxes as they move from place to place. They should be made to contribute their share to the government, and a tax based on this theory of contribution is perfectly legal, as was

11. Howe Mach. Co. v. Gage, 100 U. S. 676, 25 U. S. (L. ed.) 754; Miller v. Birmingham, 151 Ala. 469, 44 So. 388. 125 A. S. R. 31; Ex parte Byles, 93 Ark. 612, 126 S. W. 94, 37 L.R.A. (N.S.) 774; State v. Conlon, 65 Conn. 478, 33 Atl. 519, 48 A. S. R. 227, 31 L.R.A. 55; State v. Emert, 103 Mo. 241, 15 S. W. 81, 23 A. S. R. 874, 11 L.R.A. 219; Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L.R.A. 922; People v. Jenkins, 202 N. Y. 53, 94 N. E. 1065, 35 L.R.A. (N.S.) 1079; In re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321; Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 A. S. R. 955.

Notes: 48 A. S. R. 236; 129 A. S. R. 276; 3 L.R.A. 705.

12. See supra, par. 8.

13. Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 A. S. R. 137.

14. McKnight v. Hodge, 55 Wash. 289. 104 Pac. 165. 40 L.R.A.(N.S.) 1207; Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 A. S. R. 955.

15. Miller v. Birmingham, 151 Ala. 469, 44 So. 388, 125 A. S. R. 31; Ex parte Byles, 93 Ark. 612, 126 S. W. 94. 37 L.R.A. (N.S.) 774; State v. Conlon, 65 Conn. 478, 33 Atl. 519, 48 A. S. R. 227, 31 L.R.A. 55; South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531; In re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321; McKnight v. Hodge, 55 Wash. 289, 104 Pac. 165, 40 L.R.A. (N.S.) 1207.

16. See supra, par. 8.
17. See infra, par, 15.

shown above. But when an attempt is made to go further and impose a tax on peddlers plainly for the purpose of protecting local resident merchants from competition, it seems that such attempt results in creating a law that is unreasonably discriminatory and therefore unconstitutional.18 However, it is probable that local trade protection is one of the motives that actuate the legislative bodies although the law has to be supported on some other ground,19 and a few cases seem to proceed on the theory that local trade protection is a sufficient justification for a law requiring a license from peddlers.20

10. Required by Municipal Corporation.-A great many, in fact the majority, of the cases on the subject of peddlers' licenses present instances of municipal ordinances rather than state statutes requiring those licenses. It is clear, on the authorities, that a state may delegate to a municipality, a part of its police or taxing power, and, pursuant to the authority delegated to it, a municipal corporation may pass ordinances, and such ordinances have the same force within the corporate limits as a statute passed by the legislature. It is, further, quite clear that a state may delegate to a municipal corporation that part of its police or taxing power that enables it to regulate and tax peddlers. Whether the power of regulating and licensing peddlers exists in a municipal corporation by reason of the general police power conferred by implication on that corporation by its very creation by the state is a question on which there is some doubt. It appears from a number of well decided cases that by the organization of a city or borough within its borders, the state imparts to its creature, the municipality, the powers necessary to the performance of its functions, and to the protection of its citizens in their persons and property; that the police power is one of these; that ordinances of cities and boroughs, passed in the legitimate exercise of this power, are therefore valid; and that an ordinance prohibiting the business of peddling within the municipal limits, without a license from the proper municipal officer, would seem to be as clearly justified by the police power as a statute prohibiting the same business throughout the state. Certainly a municipal corporation may regulate peddlers in so far as they

18. See infra, par. 16.

19. Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430.

Note: 129 A. S. R. 276.

20. Graffty v. Rushville, 107 Ind. 502, 8 N. E. 609, 57 Am. Rep. 128; South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531.

1. Note: 33 A. S. R. 846. See Mr NICIPAL CORPORATIONS, vol. 19, p. 943. 2. In re Watson, 17 S. D. 486, 97

N. W. 463, 2 Ann. Cas. 321.

Notes: 33 A. S. R. 846; 48 A. S. R. 236; Ann. Cas. 1914D 938.

3. Iowa City v. Glassman, 155 Ia. 671, 136 N. W. 899, 40 L.R.A. (N.S.) 852; Shreveport v. Dantes, 118 La. 113, 42 So. 716, 8 L.R.A. (N.S.) 304; State v. Namias, 49 La. Ann. 618, 21 So. 852, 62 A. S. R. 657; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49. Note: Ann. Cas. 1916A 1238.

affect a properly authorized municipal market, or interfere with the use of a highway by the public, and it may in its discretion restrict peddling to certain districts of the city. If such implied police powers do exist as would justify a regulation of peddlers by a munici pal corporation, it would seem that the implied power might justify a municipal regulation of certain people, who, though not peddlers, have a number of the same characteristics as, for instance, agents soliciting orders for future delivery. Just this point has not been settled. However, it seems to be settled that where the state has expressly conferred on a municipal corporation the power to regulate a certain class, namely, peddlers, that power is to be strictly construed, and the municipal corporation may not under that power or by virtue of any general police power extend the term "peddler" to cover others not peddlers. By its action at least the state has limited the implied police power of the municipal corporation. Further, a grant from the state authorizing municipal regulation of peddling will not authorize prohibition of that occupation.8 And a grant of authority to impose fees for the purposes of revenue will not warrant their being made so heavy as to be prohibitory, thereby defeating the purpose." The state, however, sometimes expressly grants the power to prohibit as well as to license. 10 But it must be borne in mind that a state cannot confer on the municipality powers that the state does not possess. It cannot give its creature immunity from the settled limitations that bind its own action, for the municipality remains a part of the state after its creation, as truly as the town or village was a part of the state before it acquired a corporate character and only in matters of local government is its situation changed. So, even though the municipal regulation is passed in an exercise of the implied police power of the corporation, it must be subjected to the same tests 11 that a similar state statute would be subjected to.12 Further, it must be restricted by the limitation peculiar to municipal corporations,18 and, since it

4. State v. Namias, 49 La. Ann. 618, 21 So. 852, 62 A. S. R. 657 and note. 5. Shreveport v. Dantes, 118 La. 113, 42 So. 716, 8 L.R.A. (N.S.) 304.

6. Note: Ann. Cas. 1916A 1238. 7. Emmons v. Lewistown, 132 Ill. 380, 24 N. E. 58, 22 A. S. R. 540, 8 L.R.A. 328; Davenport v. Rice, 75 Ia. 74, 39 N. W. 191, 9 A. S. R. 454; St. Paul v. Briggs, 85 Minn. 290, 8 N. W. 984, 89 A. S. R. 554; Ex parte Taylor, 58 Miss. 478, 38 Am. Rep. 336; Thousand Island Park Assoc. v. Tucker, 173 N. Y. 203, 65 N. E. 975, 60 L.R.A. 786.

8. Ottumwa v. Zekind, 95 Ia. 622,

64 N. W. 646, 58 A. S. R. 447, 29 L.R.A. 734.

Notes: 62 A. S. R. 659; Ann. Cas. 1914D 938.

9. Notes: 4 L.R.A. 809; Ann. Cas. 1914D 939.

10. O'Hara v. Collier, 173 Mich. 611, 139 N. W. 870, Ann. Cas. 1914D 936. 11. See infra, par. 12 et seq.

12. Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49.

13. O'Hara v. Collier, 173 Mich. 611, 139 N. W. 870, Ann. Cas. 1914D 936 and note.