On June 15, 1909, the following order was filed:
The court having, after due consideration, reached the conclusion that the ordinance of the city of Hastings prohibiting peddling therein by nonresident citizens, and under which relator was convicted and is now restrained of his liberty, is unconstitutional and vоid, it is ordered that the order of the court below discharging the writ of habeas corpus herein be and it is hereby reversed, аnd relator discharged from custody. An opinion stating reasons for the conclusion will be .filed within due time.
The following opinion was filed on July 9, 1909:
Delator was prosеcuted and convicted before the police justice of the city of Hastings of peddling therein contrary to the ordinances of the city, and sentenced to pay a fine of $15 and costs or stand committed to the city jai,l for a term not exceeding fifteen days. Upon his refusal to pay the fine, he was committed to the custody of respondent, as keеper of said jail. He thereafter sued out a writ of habeas corpus for his release, which, after consideratiоn by the court below, was in all things discharged, and relator remanded to prison. He then appealed to this court.
The motion of the attorney general to dismiss the appeal is not passed upon, for the reason that we are unable from the confused record to determine with certainty that his point is well taken. The point is that the appeal purports to be from an order in habeas corpus proceedings in the district court of Dakota county, whereas the only such proceeding disclosed by the record was the one pending in the
The record discloses that relator was convicted under an ordinance of the city of Hastings, entitled “An ordinance to license and regulate the sale of merchandise and other personal properly, by itinerant merсhants and transient vendors,” the first two sections of which are as follows:
“Section 1. The words ‘itinerant merchants and transient vendоrs’ shall within the meaning of this ordinance include persons not being actual and bona fide residents of the city of Hastings, who sell, or offer to sell, or contract, solicit or take orders for the sale by sample or otherwise, for immediate or futurе delivery of merchandise or other personal property to consumers. Provided that this ordinance shall not aрply to vendors of farm and garden produce, nor to persons soliciting orders from or selling at wholesale to merсhants or dealers.
“Sec. 2. It shall be unlawful for itinerant merchants or transient vendors as defined in section 1 of this ordinance to sell or offer for sale, or contract, solicit or take orders for the sale by sample or otherwise for immediаte or future delivery of merchandise or other personal property to consumers, within the limits of the city of Hastings, without first having obtained a license so to do.”
These sections are followed by appropriate provisions for the issuаnce of licenses and imposing penalties for the violation of section 2.
It is the contention of the relator that the ordinance violates both the state and federal constitutions, in that it denies to him and others in his situation the equal prоtection of the law, and is therefore void, and his conviction and imprisonment thereunder consequently unlawful. Section 2 of article 1 of the state constitution declares, among other things, that no member of this state shall be deprived of any оf the rights or privileges secured to any of the citizens thereof. Section 2 of article I of the constitution of the Hnited States provides that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the sevеral states. The fourteenth amendment declares that no state shall make or enforce any law which shall abridge thе privileges of citizens of the Hnited States,
That the ordinance under consideration contravenes- all these guaranties is quite clear. There can be no cоntroversy respecting the power of the state, or of any of its municipal subdivisions upon which the authority is conferred by lеgislation, to enact and enforce laws regulating and controlling the business of hawking and peddling; but such laws must be general, and apply uniformly to all citizens, irrespective of residence. They must conform to state and federal constitutions, and not be based upon class distinctions, or deny to any citizen the equal protection of the law. This is elementary, and requirеs no reference to authorities. But this ordinance does not meet the requirements. It expressly exempts from its opеration residents of the city of Hastings, and applies only to those who reside outside of its corporate limits. This is a discrimination between citizens of the state and the Hnited States, and not warranted.
Similar ordinances and statutes embodying substantially thе same restrictive operation have come before the courts in numerous instances and have almost without еxception been declared unconstitutional and void. State v. Wagener,