106 Mich. 32 | Mich. | 1895
The charter of the city of Saginaw provides that—
“The common council may require transient traders and dealers to take out license before engaging in business, and regulate the terms and conditions of issuing the same.” Local Acts 1889, p. 900, § 9. .
Under the authority conferred by this section the council passed an ordinance which provides — •
“That each and every person, not a' resident, who shall bring into the city any goods, wares, or merchandise, with a view to disposing of the same by auction or otherwise, without any bonafide intention of remaining permanently in the business of selling or disposing of such goods, wares, or merchandise within the city, shall be deemed and treated as a transient trayler or dealer, and before he slia^l sell or expose for sale any of such goods, wares, or merchandise within the city, either by auction or otherwise, he shall pay to the city treasurer, for the use of said city, the sum of $10 per day for every day or part of a day such goods, wares, or merchandise shall be exposed for sale.”
The ordinance provides for the issue of a license upon such payment, and a penalty for non-compliance. It also provides that the words “goods, wares, or merchandise” shall not be construed to include wood or fuel, or the products of the farm or dairy, when exposed or offered for sale by the producers thereof.
One McDevitt was convicted before a justice of violating this ordinance. Upon appeal to the circuit court, the proceedings were quashed by the respondent, upon motion, upon the ground that the ordinance was invalid, and we are asked to issue a mandamus requiring him to
It is asserted that the ordinance is void because:
1. It discriminates between residents of the city of Saginaw and other persons.
2. It discriminates between non-residents, inasmuch as it requires a license only in cases where the goods sold are brought into the city.
3. The fee charged for the license is excessive and unreasonable.
The business of a transient dealer, if subjected to the payment of a fee, must be with a view to taxation, or to cover the expense of regulation under the police power. In this case it cannot be said that,the fee can be sustained as a tax, because the charter does not indicate an intention upon the part of the legislature to authorize the municipality to tax the business, but only to license to the end that it may regulate it. The language of the charter indicates a design to promote the public good rather than to obtain revenue. As said by Mr. Justice Cooley, in People v. Russell, 19 Mich. 619:
“That the regulation of hawkers and peddlers is important, if not absolutely essential, may be taken as established by the concurring practice of civilized states. They are a class of persons who travel from place to place among strangers, and the business may easily be made a pretense or a convenience to those whose real purpose is theft or fraud. The requirement of a license gives opportunity for inquiry into antecedents and character, and the payment of a fee affords some evidence that the business is not a mere pretense.”
This may be measurably true of transient dealers; and it is to protect the community from imposition and fraud, rather than to obtain revenue, that, in our opinion, this power was conferred. If this is so, there is no reason for an ordinance that applies only to non-residents, as a class, and which exempts inhabitants of the city. We do not discuss the extent to which the city may go in restricting and limiting the number of said dealers, and
The writ will therefore be denied, with costs.
