17 S.D. 486 | S.D. | 1903
This proceeding, instituted in the circuit court by James Watson to secure his discharge from custody under a; warrant of commitment issued by a justice of the peace' upon a conviction on the charge of dealing as a peddler without a license, resulted in his release, and the state appealed.
It is contended that the act upon which the conviction was based is unconstitutional, and such was, we assume, the view of the learned circuit court, as-it seems to have been conceded that the proceedings before the justice were in all respects regular and within the terms of the statute. The act, the validity of which is thus attacked, is as follows:
*489 “Section 1. Whoever shall deal in the selling of goods, wares or merchandise, except nursery stock, agricultural products, including milk, butter, eggs and cheese, by going about from place to place to sell the same, is declared to be a peddler, provided, that this section shall be intended to include among those required to obtain a license as peddlers all such persons as are transient merchants, traders or dealer's; such persons as bring into any town, city or village in any manner goods, wares, merchandise, notions or other articles of trade except such as are excepted in this section, for the purpose of selling the same in the manner provided in this section, and do not become permanent- merchants, traders or dealers in such town, city or village; permanent merchants, traders and dealers being here defined to be those who pay taxes in the county where the business is carried on upon their goods, wares, merchandise or other articles of trade the same as other resident dealers.
“Sec. 2. No person shall -deal as a peddler without a license issued annually and no two or more persons shall deal under the same license as partners, agents or otherwise.
“Sec. 3. Every license shall state the manner in which the dealing is carried on whether on foot or with one or more beasts of burden, the kind of cart, wagon or carriage, or if on water the kind of boat or vessel to be employed, and shall be in force and effect for one year from the date of issue and shall apply and be effectual only in the county in and by which it is issued.
“Sec. 4. Any person may obtain a peddler’s license by applying to the county auditor of the county in which he wishes to carry on his trade, and by paying the amount herein provided for said license.
*490 ‘ ‘Sec. 5. Every such applicant before he shall be entitled to such license shall pay the county auditor the following license fees: If he intends to travel'.by bicycle or on foot, including rail-' road or other public-conveyances, but carry with him his goods, wares or merchandise, twenty dollars; .if he intends to travel 'and carry his goods with a single horse or other beast carrying or drawing a burden, thirty-five dollars; if he intends to travel with a vehicle or carriage drawn with two or more horses or other animals, fifty dollars; if he intends to deal as a transient merchant, trader or. dealer, seventy-five dollars, provided, that any such applicant taking license as such transient merchant, trader or dealer shall in addition to the amount paid for such license also pay to the authorities of the said town, city or village where he may sell or offer for sale any goods, wares or merchandise, a sum not e-xceeding fifty dollars per day for each day that such person may be engaged in selling or disposing of any such goods, wares or merchandise to be determined by ordinance or resolution of the town, city or village where he may engage in business aforesaid, which ordinance or resolution shall provide when and in what-manner such per diem shall be paid.
“Sec. 6. All sums received by the'county auditor for peddlers’ license shall be by him deposited with the county treasurer and covered into the county general fund for use of the county.
“Sec. 7. Any person who shall be found dealing as a peddler without having paid and received the license herein specified, or who shall, upon demand of’ any sheriff, constable or any householder of the county, refuse to produce his license and permit the same to be read, shall be deemed guilty of a*491 misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars.
“Sec. 8. The provisions of this act shall not apply to traveling salesmen doing business with retail merchants, manufacturers or jobbers, or with state, county, township and city officials, whether they carry samples or not. ’ ’
Laws 1908, pp. 249, 250, c. 190.
The accused was charged with dealing in goods, wares and merchandise not excepted by the statute, by going about from place to place to sell the same, in a vehicle drawn by two horses, without having procured the required license. Therefore for the purpose of this appeal, his case will be regarded as falling within the first class of occupations defined in Section 1, and the statute will be considered only with reference to its effect on the particular business in which he was engaged. State v. Church, 6 S. D. 89; 60 N. W. 143; State v. Mitchell, 3 S. D. 223, 52 N. W. 1052; State v. Becker, 3 S. D. 29, 51 N. W. 1018. And in thus considering the enactment, it should be constantly borne in mind that there areno limitations upon the legislative powers of the Legislature in this state, except such as are imposed by the state and federal Constitutions; that no legislative act should be declared unconstitutional unless the conflict between its provisions and some principle of constitutional law is so plain and palpable as. to leave no reasonable doubt of its validity; and that, where the language of a statute is susceptible of any reasonable construction which is consistent with the Constitution, that interpretation will be given it.
Without deciding whether the burden imposed by this stat
If the burden imposed is a tax, it is a tax on the occupation, not on the goods sold. It could not be otherwise regarded in this state, and be sustained, as the Constitution requires all real and personal property to be taxed “according to its value in money.” Const, art. 11, § 2. It appears to be the concurrent voice of all the authorities that in the absence of any inhibition, express or implied, in the Constitution, the Legislature has power to either directly levy and collect license taxes on any business or occupation, or to delegate like authority to a municipal corporation. City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486. In this state all legislative power, save as restricted by the state and federal Constitutions, is vested in the Legislature. Taxation is a legislative power. There is no inherent vice in the taxation of vocations. On the contrary, business is as legitimate a subject of taxation as property. City of Newton v. Atchison, supra. Then the question arises whether our state Constitution either expressly or impliedly inhibits taxes on occupations. , Section 2, art. 11, reads as follows: “All taxes to be raised in this state shall be uniform on all real and personal property, according to its value in money, to be ascertained by such rules of appraisement and assessment as may be prescribed by the Legislature by general law, so that every person and corporation shall pay a tax in proportion to the value
Does the statute, considered as an exercise of the taxing power, conflict with the rule requiring 'equality and uniform-J ity? In many jurisdictions an answer to this inquiry has been avoided on the ground that the rule is applicable only to ad valorem taxes on property. Such position cannot be taken in this state. The clause, “and all taxation shall be equal and uniform,” found in the Bill of Rights, cannot be ignored. Constitutions are supposed to be prepared with much care and deliberation. It will not do to assume that such important instruments contain any idle or meaningless phrases. On the contrary, it must be presumed that every word was advisedly selected, inserted for a purpose, and intended to have its due weight in determining what organic principles have been established. In this state, then, taxes on occupations must be equal and uniform. What is meant by “equality and uniformity” in this connection? The Legislature is not commanded to tax all occupations. To levy the same amount of tax on each
There is another view perhaps equally convincing. It is this: The legislative classification may be founded on the nature of the articles sold, as well as on the manner of conducting the business. Hence peddlers may with propriety and justice be divided into classes, with reference to the kinds of goods, wares, and merchandise in which they deal. As stated by the supreme court of North Carolina: “A tax on trades must be considered uniform when it is equal upon all persons belonging to- the described class upon which it is imposed. Burroughs on Tax. § 77. It may be different upon a dealer in whisky by retail from that of a wholesale dealer, or on a dealer in whisky from what it is on a dealer in grain. So it does not cease to be uniform because it is $1 on all traders who sell to the amount of $1,000 in a quarter, they being one class, and $4 on all who sell to the amount of $4,000 in the same time, who form a different class. ” Gatlin v. Town of Tarborno, 78 N. C. 119. If this be so, all'who peddle musical instruments may constitute a class, which may be taxed without imposing the same burden, .or any burden whatever, on persons who peddle sewing machines. As has been said, the legislature is not required to tax all occupations. It may from time to time, as circumstances seem to demand, select one or many occupations as subjects of taxation. So far as the rights of the accused are concerned, it has in this case provided that all persons who go from place to place in a vehicle drawn by two or more horses, or other animals, to sell any goods, wares or merchandise, other than nursery stock and agricultural products, shall annually contribute $50 to the general fund of each county
Consideration of the statute as an exercise of the police power leads to the same conclusion. It is, of course, conceded that >the business of peddling may be regulated, but counsel for the accused contends that this act discriminates in favor of peddlers who deal in nursery stock and agricultural products, and therefore violates article 6, § 18, of the state Constitution, which reads as follows: “No law shall be passed granting to any citizen, class of citizens or corporation privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.” This and other inhibitions of class legislation received consideration in Bon Homme county v. Berndt, 13 S. D, 309, 83 N. W. 333, 50 L. R. A. 351; Id., 15 S. D. 494, 90 N. W. 147. In that case the law making the expense incurred by a county in caring for an insane person a charge against his estate, where such- insane person has no heirs within the United States dependent on such estate for-support, was sustained on the ground that it made no discrim
As we have endeavored to show, the classification adopted
The order appealed from is reversed.