due process of law. Likewise a tax on peddling, though justified if reasonable, would be unconstitutional if so heavy as to be unreasonable,10 for this, too, would be a taking without due process. Although it is a fact that often one of the purposes of a requirement of a license from peddlers is to protect local tradesmen,11 yet the property of one citizen may not be taken purely for the purpose of prospering another, hence any restriction placed on peddlers solely for the purpose of protecting local tradesmen would be invalid as a violation not only of the privileges and immunities clause and the equal protection clause,18 but also of the due process clause of the constitution.14 16. Discrimination Based on Residence or Citizenship of Peddler.The general rule that a state may make a classification of peddlers for the purpose of regulation,15 or taxation,16 is limited by the restriction that a particular classification must be reasonable and that there shall be no discrimination between the members of the same class.17 It has been settled by the unanimous body of authority that a statute or ordinance which requires a license of peddlers, but which exempts residents in whole or in part from the payment of the license, 18 invalid.18 It is a statute which defines not a new class based on valid 671, 136 N. W. 899, 40 L.R.A. (N.S.) 852; Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 A. S. R. 137; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49; State v. Foster, 22 R. I. 163, 46 Atl. 833, 50 L.R.A. 339. Note: Ann. Cas. 1914D 938, 941. 9. People v. Wilson, 249 Ill. 195, 94 N. E. 141, 35 L.R.A. (N.S.) 1074 and note. 10. Ottumwa v. Zekind, 95 Ia. 622, 64 N. W. 646, 58 A. S. R. 447, 29 L.R.A. 734. Note: Ann. Cas. 1914D 938, 941. 11. Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430; 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. 12. See CONSTITUTIONAL LAW, vol. 6, p. 475. 13. State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A.(N.S.) 297. Note: 40 L.R.A. (N.S.) 290. 14. Chaddock v. Day, 75 Mich. 527, 42 N. W. 977, 13 A. S. R. 468, 4 L.R.A. S09; People v. Jenkins, 202 N. Y. 53, 94 N. E. 1065, 35 1.R.A. (N.S.) 1079; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49; State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297. 15. Shreveport v. Dantes, 118 La. 113, 42 So. 716, 8 L.R.A. (N.S.) 304; Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 A. S. R. 955. Note: 129 A. S. R. 277. See supra, par. 8. 16. People v. Jenkins, 202 N. Y. 53, 94 N. E. 1065, 35 L.R.A.(N.S.) 1079; Servonitz v. State, 133 Wis. 231, 113N. W. 277, 126 A. S. R. 955. Notes: 129 A. S. R. 277; 2 Ann. Cas. 325. See supra, par. 9. 17. Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49; McKnight v. Hodge, 55 Wash. 289, 104 Pac. 504, 40 L.R.A. (N.S.) 1207. Note: 2 Ann. Cas. 325. 18. Ward v. Maryland, 12 Wall. 418, 20 U. S. (L. ed.) 449, reversing 31 Md. 279, 1 Am. Rep. 50; Howe Mach. Co. v. Gage, 100 U. S. 676, 25 U. S. (L. ed.) 754; Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L.R.A. 522; Sears v. Warren County, 36 Ind. 267, 10 Am. Rep. 62; Gaffty v. Rushville, 107 Ind. 502, 8 N. E. 609, 57 reasons for reclassification, but discriminates between members of a class, and violates the privileges and immunities clause, 19 and the equal protection clause of the federal constitution.20 It would seem that an ordinance which discriminates merely against other residents of the domestic state would be bad, and this doctrine seems to be uniformly held also by courts which have rendered decisions on the subject, for such a statute violates the equal protection clause of the constitution. So an ordinance taxing "peddlers" would be construed to apply to nonresident as well as resident peddlers, because that would be the alternative construction which would render it con-. stitutional. A discrimination against those who are not citizens of the United States or who have not declared their intention of becoming the same has been upheld on the ground that the noncitizens form a class at whom special police regulation may be reasonably aimed.* But it has also been held that such a discrimination is not reasonable and that therefore the statute was void for denying to the aliens the equal protection of the laws of the state. The existence of differing conditions of fact surrounding the statute in each of these cases may justify both decisions, for, although citizenship alone would not seem to be a reasonable basis of classification, attendant facts might render alien peddlers subject to reasonable classification under the police power. 17. Commodity and Personal Exemptions.-The great majority of statutes affecting peddlers make exemptions in favor of persons peddling goods of special classes. The validity of such a statute depends on whether the commodity exemption is reasonable. A very common instance is the exemption of persons peddling farm products, as truck, Am. Rep. 128; State v. Montgomery, 94 Me. 192, 47 Atl. 165, 80 A. S. R. 386; State v. Mitchell, 97 Me. 66, 53 Atl. 887, 94 A. S. R. 481; Com. v. Hana, 195 Mass. 262, 81 N. E. 149, 11 L.R.A. (N.S.) 799; Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 A. S. R. 137; Muhlenbrinck v. Long Branch, 42 N. J. L. 364, 36 Am. Rep. 518; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49; State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297. Notes: 24 A. S. R. 140: 33 A. S. R. 846; 48 A. S. R. 276; 58 A. S. R. 452; 78 Á. S. R. 250; 80 A. S. R. 396; 122 A. S. R. 257; 40 L.R.A.(N.S.) 287. See LICENSES, vol. 17, p. 521. 192, 47 Atl. 165, 80 A. S. R. 386. 20. State v. Mitchell, 97 Me. 66, 53 Atl. 887, 94 A. S. R. 481; McKnight v. Hodge, 55 Wash. 289, 104 Pac. 504, 40 L.R.A. (N.S.) 1207. 1. Graffty v. Rushville, 107 Ind. 502, 8 N. E. 609, 57 Am. Rep. 128; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49 and note. 2. Note: 40 L.R.A. (N.S.) 288. 3. See CONSTITUTIONAL LAW, vol. 6, p. 78. 4. Com. v. Hana, 195 Mass. 262, 81 N. E. 149, 122 A. S. R. 251, 11 Ann. Cas. 514, 11 L.R.A. (N.S.) 799. 5. State v. Montgomery, 94 Me. 192, 47 Atl. 165, 80 A. S. R. 386. Note: 94 A. S. R. 488. 19. Ward v. Maryland, 12 Wall, 418, 20 U. S. (L. ed.) 449; Sears v. Warren County, 36 Ind. 267, 10 Am. p. Rep. 62; State v. Montgomery, 94 Me. 6. See CONSTITUTIONAL LAW, vol. 6, 395. meat, and milk, which have been produced on their own lands. Ordinarily such an exemption has been upheld. However, it has been held that a statute which permits a manufacturer, farmer, or nurseryman to peddle his wares, either by himself, or his employee, without a license, but which prohibits a purchaser from such manufacturer, farmer or nurseryman from peddling the goods purchased on his own account, without a license, makes an improper classification and an arbitrary distinction, and is unconstitutional and void.8 The exemption of those who sell to dealers has also been upheld," but there are expressions of opinion to the contrary.10 The correctness of the majority rule in each of the two foregoing instances seems plain when it is noted that under the generally accepted meaning of the word "peddler" neither farmers selling the products of their farms nor traveling salesmen selling to retailers are peddlers. Evidently there were plainly distinguishing characteristics of both classes; and a statute taxing merely "peddlers" would have been construed to touch neither.11 Even the exemption of manufacturers peddling articles of their own manufacture has been sustained.12 It would seem, though, that an exemption based solely on personal qualities of the peddler and inserted for the purpose of rewarding persons for past services would be bad. So statutes requiring all peddlers to be licensed and exempting veterans of the Civil War who have received an honorable discharge from service have been held to violate the equal protection clause or the privileges and immunities clause because of unreasonable classification.18 18. Miscellaneous Classification.-A question closely akin to those of the foregoing paragraph is raised when a legislative body imposes a license on the peddling of several apparently harmless articles and says nothing about the peddling of things in general. Such an imposition has been held invalid.14 But the very general tendency 7. People v. De Blaay, 137 Mich. 402, 100 N. W. 598, 4 Ann. Cas. 919; Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L.R.A. 922; Ex parte Case, 70 Ore. 291, 135 Pac. 881. 141 Pac. 746, Ann. Cas. 1916B 490; In re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321; Dutton v. Knoxville, 121 Tenn. 25, 113 S. W. 381, 130 A. S. R. 748, 16 Ann. Cas. 1028; McKnight v. Hodge, 55 Wash. 289, 104 Pac. 504, 40 L.R.A. (N.S.) 1207. Notes: 129 A. S. R. 277; R. 753; 35 L.R.A. (N.S.) Ann. Cas. 1030. 130 A. S. 8. State v. Wagener, 69 Minn. 206, 72 N. W. 67, 65 A. S. R. 565, 38 L.R.A. 677. 9. People v. De Blaay, 137 Mich. 402, 100 N. W. 598, 4 Ann. Cas. 919; Ex parte Case, 70 Ore. 291, 135 Pac. 881, 141 Pac. 746, Ann. Cas. 1916B 490. Note: 94 A. S. R. 488. 10. State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297. 11. See supra, par. 4, 6. 12. People v. De Blaay, 137 Mich. 402, 100 N. W. 598, 4 Ann. Cas. 919. 13. State v. Garbroski, 111 Ia. 496, 82 N. W. 959, 82 A. S. R. 524, 56 L.R.A. 570 and note; State v. Shedroi, 75 Vt. 277, 54 Atl. 1081, 98 A. S. R. 825, 63 L.R.A. 179. 14. State v. Wright, 53 Ore. 344, 100 Pac. 296, 21 L.R.A. (N.S.) 349. has been to uphold the reasonableness of such a classification, usually on the ground that the legislature may be presumed to have selected those articles the peddling of which was prevalent or most likely to become prevalent. 15 A tax on peddlers of all farm products except milk, fish, and game has been held to embody an unreasonable classification and therefore to be invalid.16 Intimations are found to the effect that there is no valid distinction between temporary transient salesmen and those with a permanent business,17 but they are opposed to the weight of authority.18 It is held that an ordinance prohibiting peddlers from advertising their wares by public outery on the streets but permitting them to do so on licensed amusement grounds does not discriminate against peddlers on the street, because the conditions surrounding peddlers in the two classes of cases differ so as to furnish a reasonable basis on which to rest a classification.19 Finally, it is not necessarily unreasonable to base the amount of the tax on the amount of business done by the peddler or his mode of locomotion, which is substantially the same thing, whether it is a regulation or a pure tax. For the degree of danger to the public and the cost of supervision so vary with the number of people with whom the peddler comes into touch that the measure of his contribution to the state might well be made to depend upon the volume of his business.20 V. PEDDLING WITHOUT LICENSE 19. Validity of Contracts of Sale. Since all instances of true peddling and most of those covered by peddlers' statutes are accompanied by present delivery and cash payment, few cases have arisen involving the validity of a contract of sale made by a peddler who has omitted to take out a license as required by statute. A contract directly and explicitly prohibited by a statute in unmistakable language is void. Even where the statute does not in express terms declare the act unlawful, yet if it appears from a consideration of the legislation in question that the legislative intent was to declare the act harmful to the public no contract involved in the doing of such act can be enforced. So, in the case of a statute requiring a peddler to secure a license before practicing his trade and fixing a penalty for sales made without a 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; McKnight v. Hodge, 55 Wash. 289, 104 Pac. 504, 40 L.R.A. (N.S.) 1207. Note: 21 LR.A.(N.S.) 349. 16. In re Snyder, 10 Idaho 682, 79 Pac. 819, 68 L.R.A. 708. 17. State v. Conlon, 65 Conn. 478, 33 Atl. 519, 48 A. S. R. 227, 31 L.R.A. 55. 18. See supra, par. 8, 9. 19. Goodrich v. Busse, 247 Ill. 366, 93 N. E. 292, 139 A. S. R. 335, 20 Ann. Cas. 589. 20. Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 A. S. R. 955. Note: 129 A. S. R. 277. See CONSTITUTIONAL LAW, vol. 6, p. 390. 1. See CONTRACTS, vol. 6, p. 701. license, it is clear that if the said statute was passed by the state in the exercise of its police power, that is, if it was the design of the lawmaking power to protect the public from fraud or to promote some other object of public policy, contracts made by the peddler without the license are void. On the other hand it has been held that where a peddler's license was required solely for revenue and the statute did not forbid the sale without license but merely fixed a penalty therefor, a note taken by the peddler in payment for his goods may be collected by him. The argument is that since the statute was passed solely to secure revenue, the penalty attached to the person who violated the law and did not affect the contract for the sale of the goods; that the fine was imposed not for selling the goods but for the failure to procure the license. Another case has gone further and has held that under a statute similar in every respect, save that a peddler was forbidden to sell without a license, a note given by a purchaser to a peddler who sold without a license can be collected by the peddler.✦ This case likewise argued that since the statute was plainly passed to secure revenue only, there was no intention on the part of the legislature to invalidate the contract. These cases are certainly justifiable and probably represent the view that would be taken by the courts generally.5 20. Status of Peddler.-A peddler who is carrying on his trade, having failed to procure a peddler's license as required by statute or ordinance, is, of course, liable to be penalized or punished under the statute, but he is in no way outlawed. Nor does any penalty attach to the merchandise itself. It cannot be seized or forfeited. It is neither contraband nor outlawed. The peddler may lawfully care for and protect it. Furthermore, if he becomes a guest of an inn and, while such, his goods and wares are stolen, the fact that he had omitted to procure a license will not prevent his recovery from the innkeeper. On the other hand a license to a peddler gives him no authority to set up a lunch wagon within the limits of a highway, or to commit any obstruction in the public streets, and not even if the license is from the state can the peddler because of it claim a right to obstruct 2. Rash v. Farley, 91 Ky. 344, 15 S. W. 862, 34 A. S. R. 233; Banks v. McCosker, 82 Md. 518, 34 Atl. 539, 51 A. S. R. 478; Mandlebaum v. Gregorich, 17 Nev. 87, 28 Pac. 121, 45 Am. Rep. 433. Notes: 51 A. S. R. 484; 12 L.R.A. (N.S.) 617. 3. Mandlebaum V. Gregorich, 17 Nev. 87, 28 Pac. 121, 45 Am. Rep. 433. Note: 12 L.R.A. (N.S.) 616. 4. Banks v. McCosker, 82 Md. 518, 34 Atl. 539, 51 A. S. R. 478. Note: 12 L.R.A. (N.S.) 616. 5. See CONTRACTS, vol. 6, p. 704. 6. Cohen v. Manuel, 91 Me. 274, 39 Atl. 1030, 64 A. S. R. 225, 40 L.R.A. 491. 7. Com. v. Morrison, 197 Mass. 199, 83 N. E. 415, 125 A. S. R. 338, 14 L.R.A. (N.S.) 194. |