67 N.W. 824 | N.D. | 1896
The District Court having refused to grant the petitioner a writ of habeas corpus, he has applied to this court for such writ. The application was made to the full bench on notice to the assistant attorney general, who appeared, and opposed the allowance of writ on the ground that the relator’s petition showed that his detention by the defendant, as sheriff of Grand Forks County, N. D., was legal. It is conceded that the relator has set forth in such petition the facts relating to his imprisonment, which would be disclosed by the sheriff’s return to the writ. Our conclusion that the writ should be issued will, therefore, in effect, settled upon the merits the legality of the detention of relator by defendant. The defendant holds him in custody under a commitment based upon his conviction by a justice of the peace for a violation of the provisions of section 1738, Rev. Codes. Such violation is, by section 1742, made a misdemeanor, and punishable by fine or imprisonment, or by both. These two sections constitute part of a license law relating to the occupations of peddling and of selling goods by sample in this state. Section 1738
The statute assailed as unconstitutional in the case at bar in terms declares that all persons who offer for sale by sample any goods, wares, merchandise, or other articles of trade must take out a license, and pay the statutory fee therefor. It is obvious that this law cannot stand as it was enacted. All persons cannot be compelled to take out such license and pay such fee. Those who offer for sale by sample goods to be shipped from other states cannot be affected by its provisions. As to them it is void as an unlawful interference with interstate commerce. On what principle can it be sustained as to others? It is plain to our minds that if, after this law is thus emasculated, we should hold it good as to others within the purview of the statute, we would leave upon the statute book a law which the legislature never intended to enact; one which they would not have enacted. The effect of ruling that the statute would be valid as to those not protected by the article of the federal constitution relating to interstate commerce would be to leave standing an act which
The relator is entitled to the writ prayed for.