9 A.2d 209 | Md. | 1939
The appellant was indicted in Baltimore City as a hawker and peddler of ice cream without the state license required by the Code, art. 56, secs. 26, 27, 29 and 30, convicted and sentenced to pay a fine; and on appeal he presents for review actions of the trial court in overruling his demurrer to the indictment, and in excluding evidence of the previous customary inactivity of the police of the city with respect to such a trader.
The indictment contained six counts, but a verdict of "Not guilty confessed" entered on all but the second, third and fourth, has left those alone to be considered on review of the ruling on demurrer. Wimpling v. State,
It is first complained that these sections requiring licenses for hawkers and peddlers are so vague and indefinite in meaning under modern conditions that it is impossible to ascertain who are within their terms. But there is no extraordinary difficulty in determining who are hawkers, and peddlers. The definition is established with clearness, and in this and many other jurisdictions the courts have met with no unusual difficulty in distinguishing them and enforcing the law. See Crout v. State,
Statements of the meaning have differed somewhat, naturally, but all agree that the words refer to those who go about seeking sales and deliveries of articles to possible *326
customers. Moving or itinerant trading, sales negotiated along the way, with simultaneous deliveries, are essentials. The mode of travel is not important, especially in this case, as the appellant was moving about in a motor vehicle, which is a mode within the express terms of the law. Code, art. 56, sec. 27.Commwealth v. Ober, 12 Cush., (Mass.), 493; Allport v.Murphy,
It is objected that there is uncertainty and confusion in the law which renders it unenforceable, in that no section requires a license for the trading, bartering and selling, or offering to do so, made punishable under sections 29 and 30. Those sections in themselves make it unlawful to trade, barter or sell, or to offer to trade, barter and sell without a license, but it is contended that the license is not identified because section 26 requires a license only for buying, and sections 29 and 30 cannot be construed to refer to that license. But the court is of opinion that the later sections do require the license previously described for the acts named in them, and there is no omission in the law as contended. Further, section 26 has *327
been considered by the court to require the license for offering to trade, barter, and sell. The appellant's construction is as if the section read: No hawker or peddler shall buy to trade, barter or sell, or to offer to trade, barter, or sell within the State, thus merely forbidding the buying for the purposes specified, except under license. And the words are susceptible of that construction. In Banks v. McCosker,
It is contended, further, that section 26 requires that which is not constitutionally possible in its imposition of the license requirement on buying for trading, bartering or selling outside the state. This state, it is objected, cannot tax or regulate buying here according to the nature of disposal of the goods outside the state. But a defect in that respect would not prevent enforcement of the law against the appellant, who does not himself buy, and who sells within the state. He would have no grievance from that requirement and could not object because of it. In State v. Case,
Further objections are made on constitutional grounds. It is objected that this license law is a police regulation in the guise of a revenue measure, that the license fees are so large as to be destructive of the business, and that the exemption of hawkers and peddlers of fish, oysters and perishable fruits and vegetables improperly discriminates against those left subject to the law.
It was held in Banks v. McCosker, supra, that the statute was a revenue measure, and not an exercise of the power to protect the public, and therefore the selling was not so prohibited as to render the contract of sale illegal. But the appellant thinks that it survives under more modern conditions only as a police regulation. The court does not, however, find foundation for that change in construction. The requirement seems indistinguishable from any other trade or occupational tax; and this is so even if it may be assumed that it is intended to equalize the public burdens as between hawkers and peddlers and traders in fixed situations, or has other collateral purposes. Speaking of a tax on junk dealers, the court in State v. Shapiro,
As for the objection that the tax will stop the business, this court, in company with the majority of courts elsewhere, has taken the view that a revenue measure, or a tax, adopted directly by the Legislature, is not open to constitutional objection in the courts because it may destroy an activity taxed — excluding now as not involved any such thing as a tax in form which constitutes in substances and effect the exertion of a different and forbidden power. Magnano Co. v. Hamilton,
The fact that the exemption in the statutes, of hawkers and peddlers of the perishable foods named, has been long on the books without question, argues for accepting it as one of recognized and established reasonableness. And, besides, the court could not on anything now before it find unconstitutional discrimination against those not exempted. The Legislature has power to grant exemptions from taxation, according to its views of public policy. Buchanan v. Talbot County Commrs.,
An objector on this ground has the burden of demonstrating the existence of the unconstitutionality. "Every presumption is to be made in support of the theory that *331
the General Assembly has validly and properly exercised its powers." State v. Shapiro,
The exemption of farm products, meat, and other perishable foods, is a common provision of statutes and ordinances on this subject, and in the great majority of decisions it has been upheld against attack on the ground of unconstitutional discrimination. In re Snyder,
An objection that a trader's license under the appropriate sections of the state law had been given to the appellant's employer presents still another problem. Re-examination of these sections (sections 42 to 72 of article 56) shows, however, that the trader's license is intended for just what the appellant was not, a dealer from a place of business. An applicant for a license in that form is required to state on oath the location of his place of business, which must be in the county or city where the license is procured. Section 43 and 44. The licensee is one who has a stock in trade, and the fee is graduated in amount according to the amount of that stock in trade. Section 45 to 65. If the appellant's employer has a place of business or headquarters for his trade, it may be necessary for him to take out a trader's license for it, but whether it is or is not, when he sends out hawkers and peddlers of the ice cream, he must, under the law as we see it, have hawkers' and peddlers' licenses for them.
The court finds the offered evidence of previous failure of the police of Baltimore to enforce this law against the ice cream vendors properly excluded. The law is one for the whole state, and for a method of trading which exists throughout the state, and the practice of the Baltimore police would not be sufficient to fix its applicability. The practice may have been due to a local misconception, although the advice of Attorney Generals of the State since 1921, which the record shows to have been given to the police as well as to license clerks and others, leaves little room for that explanation. See Arnreich v. State,
No error is found in the rulings reviewed.
Judgment affirmed, with costs
OFFUTT, J., concurs in the conclusion. *333