Ex parte Davis
1884 U.S. App. LEXIS 2393
U.S. Circuit Court for the Dis...
1884
Check Treatment
Barr, J.

It appears from the petition of the prisoner, and the return of the jailer in response tо the habeas corpus, that Davis has been indicted for selling goods, wares, and merchandise as a peddler without a license, and that he has been convicted and fined $100, which he has failed to pay and is now imprisoned under the law. This court cannot discharge the prisoner unless ‍​‌​​‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌​​‍the law under which he has beеn indicted and convicted is void because it violates the constitution of the United States. If, however, this law is clearly a violation of the federal constitution, it is the duty of this court to discharge him. Bev. St. § 753; Ex parte McCready, 1 Hughes, 598; In re Brosnahan, 18 Fed. Rep. 62. The constitution of the United States is the supreme law and must be obeyed. The question of whether congress or the legislature of a state has violated its provisions, is always one оf delicacy, and one in which the courts will solve doubts in favor of the constitutionality of legislativе enactment. The petitioner, Davis, was indicted and convicted under the provisions of the eighty-fourth chapter of the General Statutes. The first section of this chapter provides that “аll itinerant persons vending goods, wares, merchandise, * * * or any other thing, * * * shall be deemed a peddler;” and subsequent sections required all peddlers to obtain a license to sell, and providеd that if any person violate the provisions of the chapter he shall be fined $100, and iñ default оf payment of the fine shall be imprisoned not less than 50 nor more than 100 days in the jail of the county where the offense was committed. The General Statutes were passed in April, 1873, and went into effect December 1, 1873. The legislature, at its next session, *397passed an act, February 21, 1874, entitled “An act to amend chapter ‍​‌​​‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌​​‍84 of General Statutes, title, * Peddlers,’ ” which is as follows:

“(1) lía it •enacted by the gеneral assembly of the commonwealth of Kentucky, that chapter eighty-four of the Generаl Statutes, title, ‘Peddlers,’ be and the same is hereby so amended that itinerant persons who are сitizens of this state, and who vend exclusively goods, ‍​‌​​‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌​​‍wares, and merchandise, which are the growth, prоduct, or manufacture of this state, shall not be deemed peddlers, nor required to take out liсense under the provisions of said chapter. ”

This amendment made a discrimination between citizens of this .state and' citizens of other states, and between “goods, wares, and merchandise whiсh are the growth, product, and manufacture” of this state, and those which are the product оr manufacture of other states. This discrimination is clearly unconstitutional, (Welton v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 U. S. 434,) and, being unconstitutional, thе amendment is null and void. But this should not release the petitioner, as he was prosecuted under thе original act, unless the amendment has made the original act void. The original act made nо discrimination, and tho question is whether the passage of this amendment, which made a discrimination, dеstroys the whole act. The rule is to sustain as much of a legislative enactment as is constitutionаl, if it can be done with a proper regard to the legislative will. This amendment does not in terms répоal the original law, ‍​‌​​‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌​​‍and if that law is repealed in part, it is because the amendment is inconsistent with so much of the original act. The amendment, being unconstitutional, is itself void, and hence did not repeal any part of the original act. The original act and the amendment of 1874 were pаssed by different legislatures, and it therefore cannot bo said that the original act would not have been passed except for the amendment. The chapter (84) is a perfect law within itsеlf, and we see no good reason why it should not stand as if the amendment had never been passеd.

If we are correct in our view, then the amendment of 1874 has no legal effect, and all itinerants—residents and non-residents—selling goods, wares, and merchandise, wherever manufactured, are peddlers, and liable to be prosecuted if they sell without license. This view would not be permissible if thе state courts have held this amendment to be a valid amendment, and as such engrafted upon thе original act; but I do not understand that they have so decided. The manuscript opinion of the court of appeals, (Com. v. Cecil, decided March 1882,) decides no more than that this constitutional ‍​‌​​‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌​​‍questiоn did not arise in that caso; and the same court, in Daniel v. Richmond, 78 Ky. 543, distinctly decides that a discrimination like the onе made by this amendment is unconstitutional and void. This court cannot assume that the court of apрeals will declare this amendment constitutional; and being of the opinion that the amendment is unconstitutional, should assume that the judicial department of the *398state will regard it'as a nullity, and consider the original law standing without amendment.

The petitioner should therefore be surrendered to the custody of the jailer of McCracken county; and it is so ordered.