State v. Glavin

| Conn. | Nov 22, 1895

Andrews, C. J.

The defendant was prosecuted in the Police Court of the city of New London, upon a complaint made by the prosecuting attorney of that city, charging “ that John T. Glavin, of said city, on the 11th day of July, A. D. 1895, with force and arms, at said city, did peddle, vend and sell iii Potter Street in said city, and from house to house in said city, merchandise, to wit: wringing machines, lamps, and other merchandise, not the product of farms of this State, or fish taken in the waters thereof, without a license from the mayor or Court of Common Council of said city, against the peace, of evil example, and contrary to the form of the statute in such case made and provided, and to an ordinance of the city of New London relating to peddlers.”

He was convicted, and appealed to the Criminal Court of Common Pleas in New Loudon County, where he filed a demurrer to the complaint as follows:—

“ 1. The ordinance of the city of New London, Connecticut, upon which said complaint and information are based, is unconstitutional and void, inasmuch as it contravenes the provisions of the Federal Constitution, and also the provisions of the Constitution of this State.

“ 2. Said ordinance is invalid, for the reason that its pror visions are contrary to common justice, right and reason, and abhorrent to the established principles of natural justice and equity.

“ 3. Said ordinance is void, as it is in restraint of trade, and an instrument of -oppression, and of unfair and intolerable discrimination.

“ 4. Said ordinance -is invalid, because it imposes a revenue tax entirely without legal warrant, and beyond any authority granted by the legislature to the said city of New London, or to its Court of Common Council, or to its mayor.”

This demurrer was overruled, whereupon the defendant pleaded “not guilty.” He was tried to the jury who returned a verdict of guilty. He was sentenced to pay a fine of $15, and has appealed to this court.

The ordinance of the city of New London passed on the 4th day of August, 1879, on which the prosecution was brought, is as follows: —

“ Sec. 1. No person shall peddle, vend or sell, in any street, or from-house to house in the city of New London, any merchandise other than the product of farms in this State, or fish taken in the waters thereof, without a license from the mayor or the Court of Common Council. Sec. 2. Every person so licensed shall pajr therefor, for the use of said city, a license fee of not more than fifty dollars. Sec. 3. Every person who shall violate the provisions of this ordinance, shall be guilty, of a misdemeanor, and pay a fine to the treasury of the city of New London of not less than five nor more than thirty dollars.”

The charter of New London (§ 18) provides that “ the Court of Common Council, when assembled according to law, shall have power by a major vote of the members present, ... to regulate license or prohibit the peddling or vending of any goods, wares, merchandise or other articles in and through the streets of said city ; ” and to regulate and require license fees from all peddlers and vendors of various commodities in and about the streets and buildings of said city.

It is certainly the settled law that “ when by the charter of a city, the power to license a particular occupation within its limits is given to the common council of the city, such power involves the necessity of determining with reasonable certainty both the extent-and duration of the license, and the sum to be paid therefor ; such power must be exercised by the common council, and cannot be delegated by it, in whole or in part, to any other person or authority.” Darling v. City of St. Paul, 19 Minn., 389" court="Minn." date_filed="1872-10-15" href="https://app.midpage.ai/document/darling-v-city-of-st-paul-7962802?utm_source=webapp" opinion_id="7962802">19 Minn., 389; Beach on Public Corporations, § 276; Dillon on Mun. Corporations, 4th Ed., § 357; Pinney v. Brown, 60 Conn., 164" court="Conn." date_filed="1891-03-20" href="https://app.midpage.ai/document/pinney-v-brown-3318816?utm_source=webapp" opinion_id="3318816">60 Conn., 164; State v. Fiske, 9 R. I., 94.

The ordinance in question affixes, in some cases at least, a license fee of fifty dollars. If authority is attempted therein to be given to the mayor or to the Common Council itself, to grant a license for any less sum, the power to do which is very questionable, yet the applicant in every case may be required to pay the sum of fifty dollars. “ Whenever a municipal corporation is authorized to make by-laws relative to a given subject, and to require of those who desire to do any act or transact any business pertaining thereto, to obtain a license therefor, the reasonable cost of granting such licenses may be properly charged to the persons obtaining them.” Welch v. Hotchkiss, 39 Conn., 143. The fee of $50 required by the city of New London for a peddler’s license, is so greatly out of proportion to the reasonable cost of issuing it, as to force us to declare that it is not designed for the sole purpose of paying the cost of the license; but that under the name and form of a license fee it was in reality an irregular assessment of taxes for revenue. As such it is void. City of New Haven v. The New Haven Water Co., 44 Conn., 108; State v. Hoboken, 33 N. J. L., 280; North Hudson County My. v. Hoboken, 41 id., 71; Muhlenbrinck v. Commissioners, 42 id., 364; Clark v. New Brunswick, 43 id., 175; Mayor, etc., v. Second Ave. R. R., 32 N.Y., 261" court="NY" date_filed="1865-03-05" href="https://app.midpage.ai/document/mayor-of-new-york-v-second-avenue-railroad-3627741?utm_source=webapp" opinion_id="3627741">32 N. Y., 261. Besides, the ordinance is clearly defective in that it does not fix the time for which the license is to be given. We think the demurrer to this, information should have been sustained.

There is error and the judgment is reversed.

In this opinion the other judges concurred.