| Conn. | Jan 24, 1895
“ An Act concerning Sales of Merchandise by Itinerant Peddlers” contains the following provisions :—
“ Section 1. The mayor of any city, the warden of any borough, and the selectmen of any town, may issue a license to such persons as they find proper persons to engage in a temporary or transient business, in one locality, either in a building, tent, or other premises, for the sale of goods, wares and merchandise, * * * in their respective cities, boroughs, or towns, for a term not exceeding one year, upon the applicant paying to such municipal corporation a fee not less than one dollar nor more than one hundred dollars, as the authority issuing such license may direct; * * *
“ Sec. 2. Any person engaging in any business mentioned in section one of this Act, except in the sale of articles that are the product of a farm or of the sea, without obtaining a license therefor, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than seven dollars nor more than two hundred dollars, or imprisoned not less than thirty days nor more than six months, or both.” Public Acts of 1893, p. 271.
The State’s Attorney for Tolland county filed an information charging the defendant with a misdemeanor under this Act in the sale of boots and shoes at a store in the city of Rockville. The defendant demurred to the information because the statute is void as being contrary to the provisions of the Constitution of Connecticut, and of the Constitution of the United States, and to the principles of natural justice. The demurrer was overruled; and the defendant was tried, convicted and sentenced. This is an appeal from the judgment of conviction; and the only error assigned by the defendant is the action of the Superior Court in overruling the demurrer.
The legislature has power to require a license for the transaction of any business, either for the purpose of raising
First: What is the legal effect of the Act? The validity of the law in this case depends upon its real legal effect, and not merely upon its phraseology. In determining whether any law invades a right secured by constitutional enactment the court looks at the essence as well as the form. In re Application of Clark, 65 Conn., 17" court="Conn." date_filed="1894-09-01" href="https://app.midpage.ai/document/in-re-clark-6583330?utm_source=webapp" opinion_id="6583330">65 Conn., 17.
The Act is not an exercise of the power of taxation. This is too plain for argument. It is purely a trade regulation; and the crime of which the defendant was convicted consists solely in the violation of such regulation. The power, first, to regulate the conduct of all business, or of any particular business, harmless in its nature and which every citizen lias the right to carry on ; and second, to regulate, even to the extent of prohibition, any business in its nature injurious to the public, — is vested in the legislature in the broadest terms; but the exercise of that power in the two cases is governed by different principles. In the latter case the controlling object is giving to the public that protection from danger which the State is bound to give, and ordinarily the legislature must be the judge of the degree of danger and of the required protection. It may restrict the business by requiring large license fees, or by other protective regulations; and it may restrict the conduct of the business to a limited number of persons, or to persons possessing certain quali
But the law in question is not a regulation of a business dangerous to the public, and does not come within the special principles applicable to such regulations. It relates to all business “for the sale of goods, wares and merchandise,” to the bread and meat essential to the support of life, and to every commodity a human being has need of; the only distinction made by the law is that between a business that is temporary and transient and all other business. It does not define a “ temporary or transient” business. Such phrase has no technical legal meaning. The natural meaning of the words as generally understood does not furnish a definite guide to what the statute permits and what it prohibits. Its validity might perhaps be questioned on the ground that the language used is too vague to constitute and define a crime, but that question was not discussed in argument. The defendant is punished for selling boots and shoes in the conduct of a temporary and transient business. There is nothing in the nature of such business more dangerous to the public when called temporary, than if called permanent. There is no distinction as to public danger between a boot and shoe business conducted by a man for an indefinite time, and the same business conducted after his death by his executor in the settlement of his estate, for a short and definite time. The statute does not relate to any temporary business involving dangers peculiar to itself; it draws no line of distinction except between a business that is temporary and one that is not temporary. One is no more dangerous to the public than the other; one is no more essential to the con
The legislature has full power to regulate such a business, but its regulations must be governed by very different principles from those which may govern the regulations of a business in its nature dangerous to the public. .In the one business no citizen has an absolute right to engage ; in the other all citizens have the right and an equal right to engage.' The difference is vital.
What is the regulation prescribed by this Act ? It is simply a prohibition of the business unless a license is obtained from the officers of the municipality where the business is to be conducted. If the terms on which such license should be granted were defined, a different question would be presented. If the legislature believes that fraud and deception are increasingly liable to be practiced in the conduct of any kind of business, or of all business, it may undoubtedly require, by way of security against such fraud and deception, the persons engaging in such business to take out licenses on terms- prescribed by law and applying equally to all citizens. In Massachusetts “An Act to prevent and punish
Again, the provision giving the mayor absolute power to fix the license fee at one dollar for one year, or one hundred dollars for one day, i. e., to fix the license fee so that it shall be, at his pleasure, either nominal or prohibitive, in connection with the other provisions, renders it certain that the purpose of the statute, as well as its legal effect, is to authorize the mayor to permit or forbid the transaction of an ordinary lawful business at his pleasure. This purpose of the Act to secure to favored persons special privileges in the conduct of a lawful business open of right to all citizens, is further indicated by the provision that exempts from the operation of the Act “ articles that are the product of a farm or of the sea.”
We can find no escape from the conclusion that the legal effect of the Act is to authorize the local officers of each municipality to grant exclusive privileges to such persons as they please in the transaction of a lawful business essential to the conduct of human affairs, and in which each citizen has an equal right to engage for the support of life.
I Second: Has the legislature power to enact such a law? Tne Constitution of Connecticut is somewhat peculiar in its limitation of legislative power. The “legislative power of this State ” is, in the broadest terms vested in the “ General Assembly.” This power is, in a certain way, defined and limited by the provisions dividing the powers of government into distinct departments, and by those relating to the operation of the State government and duties of particular officers.
Our Bill of Rights constitutes the fundamental condition on which all powers of government can be exercised. Its more definite declarations are chiefly concerned with the administration of justice, especially of the criminal law, the preservation of the trial by jury, the protection of private property from confiscation for public use, the right of the citizen to bear arms and the subordination of the military to the civil power; but the protection of the citizen in the equal enjoyment of those essential rights belonging to citizens of a free government is guaranteed, not in narrow phrases of detailed statement, but in terms as broad as those which vest the legislative power in the General Assembly, or the judicial power in the courts.
The Bill of Rights begins as follows: “ That the great arid essential principles of liberty and free government may be recognized and established, We Declare, That all men when they form a social compact, are equal in rights; and that no man or set of men are entitled to exclusive public emoluments or privileges from the community.” No legislative Act is law, that clearly and certainly is obnoxious to the principle of equality in rights thus solemnly made the condition of all exercise of legislative power. It is patent that not everything that can be called a right is included in this guaranty. The protected rights are those that inhere in “ the great and essential principles of liberty and free government” recognized in the course of events that resulted in our independence, and established by the adoption of our Constitution. The language used is purposely broad, as the language in reference to the absolute power of legislation is broad; and the relation of limitation to power can, in the nature of things, be settled only through specific applications as emergencies arise. Among the principles thus established were those universally accepted as so essential
Upon the first establishment of government in Connecticut, reliance for the security of civil rights and liberties was placed on the fact that the legislature, in which was concentrated all powers of government, depended on the free and annual election of the people ; but as early as 1650 the free enjoyment of certain “liberties, immunities and privileges ” was recognized as essential to the stability of Commonwealths, and the denial thereof as threatening their ruin. The enjoyment of such rights, however, was then recognized as due only to “ every man in his place and proportion.” Code of 1650, p. 1. The full recognition of the principle of equality in rights, as well as of the necessity of protection by a fundamental law, was of later growth. In 1672 the right of every man to “ enjoy the same justice and law within this Colony ” was recognized. Revision of 1672. These principles were embodied in a statutory declaration of rights, which remained substantially unchanged until the adoption of our Constitution. During the period preceding and following the Revolution, the conviction became general that equality under the law in the enjoyment of certain rights was so essential to free government, that it must be defended against invasion even from the law-making power. In a proclamation issued June 18th, 1776, Governor -Jonathan Trumbull expressed the conviction of the Colony of Connecticut, in maintaining that the people “ form themselves into Society, and to set up and establish civil Government for the Protection and Security of their Lives and Properties ” from invasion by those “ appointed by the People the Guardians of their Lives and Liberties,” and that the course of the King of Great Britain in “ depriving us of our natural, lawful, and most important Rights, and subjecting us to the absolute Power and Controul of himself, and the British Legislature,” 'justified arebellion. 15 Colonial Records, 450. And the declaration by Congress, that equality under the
It is unnecessary to consider the other grounds on which the defendant demurred to the information.
There is error in the judgment of the Superior Court and it is reversed.
In this opinion the other judges concurred.