122 Wis. 110 | Wis. | 1904
Our statute relating to the licensing and punishing of peddlers and transient merchants (secs. 1570 et seq., Stats. 1898, as amended by ch. 341, Laws of 1901) is an edifice of composite architecture, made up of a series of portholed turrets for ofíense against the obnoxious, and sheltered corridors to shield the favorites of the successive legislatures which have contributed to the conglomerate now under consideration. So far as any generalization of its labyrinthine details is possible, it provides that “no person” shall be allowed to peddle — “peddling” being defined so as to include the dealings of the appellant here — without first obtaining a license from the state at a cost varying according as the applicant travels by his own personal motive power or with the aid of one horse or more than one horse. Having «denounced penalty upon any person who does the prohibited things, shelters have been provided for selected classes of persons, as follows: Any mechanic, nurseryman, or farmer selling his ware or production by himself or employee, provided that the manufacturer or mechanic shall have actually manufactured and the nurseryman or farmer shall have actually raised the products sold, “or shall have owned and been in possession of the same for not less than three months next prior to the sale;” any patent-right dealer selling his own invention; any person selling at wholesale or to dealers; any fish peddler selling fish; trainboys selling on railroad trains;
The appellant assails this statute as discriminatory, as denying to him the equal protection of the laws guaranteed by the fourteenth amendment of the constitution of the United States and by sec. 1, art. I, of the constitution of Wisconsin ; also for that it is obviously a measure of taxation, and therefore void, both because not laid upon property and not according to any uniform rule, as is thought to be required by sec. 1, art. VIII, of the Wisconsin constitution.
Several questions of the very gravest importance present
Upon the first and second of these questions we have received very little aid from the briefs upon either side, further than directing our attention to Morrill v. State, 38 Wis. 428, where a similar act is described as an exercise of the police power. That case presents a rather inadequate consideration of a very important question, and almost entire omission to consider those distinguishing elements which mark a given legislative enactment as taxation or police regulation,, especially in a field where either may be proper. It is difficult, however, to escape the conclusion that the reversal of this case (Morrill v. Wisconsin, 14 Sup. Ct. 1206, 23 L. Ed. 1009) on authority of Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347, involved the overruling of the view that only police regulation was involved. See Van Buren v. Downing, 41 Wis. 122. The Welton Case proceeds entirely on the vieAv that the license fee was a tax; and the right of the state to merely reasonably regulate under the police power the conduct of all persons within its jurisdiction, whether engaged in interstate commerce or not, which has always been recognized by the federal courts, is not questioned. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273; Kidd v. Pearson, 128 U. S. 1, 9, 9 Sup. Ct. 6; Patapsco G. Co. v. North Carolina, 171 U. S. 345, 18 Sup. Ct. 862; Comm. v. Dunham, 191 Pa. St. 73, 43 Atl. 84. Those features which, according to
On the broader, and perhaps more important, question whether, if taxation, it is forbidden by our constitution,. no examination seems~to have been made by the attorney general, although it is one as yet not authoritatively decided. The constitution (see. 1, art. VIII)- simply provides that the rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe. This, it has been earnestly contended, limited the legislature to property as the basis for the levy of all taxes, and this view seems favored by the language of this court in Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37, 8 N. W. 833, where the history of the provision is reviewed, as also the various decisions leading finally to justification of the method of taxation of railroads there considered, supporting it as a mode of levying taxes upon the property of those corporations. On the other hand, in Black v. State, 113 Wis. 205, 89 N. W. 522, it is intimated that the naturally inherent power of taxation included in the general legislative power conferred by our constitution prima facie would include taxing occupations and privileges, and that such taxes are not so entirely inconsistent with the wording of sec. 1, art. VIII, but that the power to levy them may exist notwithstanding that section; but the question is expressly left undecided, in deference to the declaration of its uncertainty made in Wis. Cent. R. Co. v. Tay
If the law in its details can be sustained either as a tax law or a police regulation, we shall then have to consider whether it can be ascribed to that branch of legislative power. If it cannot be sustained under either phase, such location of it will be found unnecessary.
The constitutional limitation upon .the taxing power is that its exercise must be according to a uniform rule. Sec. 1, art. VIII, Const. Wis. On the police power and the taxing power alike rests the limitation that its exercise shall affect all persons equally. Sec. 1, art. I, Const. Wis.; sec. 1, Amendm. XIV, Const. U. S.; State ex rel. Kellogg v. Currens, 111 Wis. 431, 434, 87 N. W. 561. The uniformity and the equality thus enjoined are construed only with such meaning as to enable practical government. Such command does not require that all property or all persons shall be treated exactly alike, but permits separation of either into classes of property or of persons similarly conditioned or situated, hav
The purpose to raise revenue is, of course, general and public. The purpose to protect the public against irresponsible and deceitful traders, supposed to be proportionately more numerous among hawkers and peddlers, has been held sufficient to support the regulation of that class differently from other merchants. Morrill v. State, 38 Wis. 428. When, however, we come to division of the community into classes, some to be affected by the law and some not, the legitimacy of that classification may vary with the purpose. Some classes of property or some persons may be distinguished from the rest by characteristics very relevant and material to their fitness to carry on trade without special police regulation, but in no way germane to the propriety of their contributing to public revenues or being exempted therefrom. In the light of these general rules as to the limits upon the power of the legislature to classify, let us examine some of the attempts to exercise that power in the act of 1901.
Among the most glaring of the classifications is the separation of manufacturers, mechanics, nurserymen, and farmers who have owned the goods they hawk for a term of three months from all the rest of the community. We have spurred'
Other glaring false classification is presented by the exemption of dealers in agricultural implements maintaining permanent places of business, or keepers of retail meat markets, or fish dealers, and sellers of fruits or vegetables in cities of the first class, selling their respective wares. What consideration of public welfare could exclude a retail grocer from peddling his wares, while permitting the keeper of an adjoining meat market to peddle perhaps the same articles, or exempt the dealer in plows from the restriction placed on the dealer in paints, fence wire, or any other merchandise, we confess our inability to discover. Under this act the agent of this appellant’s employer and an agent of the keeper of a nearby meat market may start together on the same vehicle, each with his samples — tea, coffee, sugar in one satchel, ham, bacon, cured meats, and lard in the other; may visit the same farmer in the same vehicle, one take an order for coffee and sugar, the other for lard and bacon. The first is a criminal, the other not. The illustration leaves nothing to be said. It is discrimination between individuals of the same class, not between legitimate classes.
The discrimination in favor of persons selling only at wholesale or only to dealers is clearly a false one if this is a tax measure. No conceivable reason exists why a person peddling goods, who confines himself to one kind of customers, should not contribute to the revenues as much as another man selling to other kinds of customers. The distinction is not based upon any characteristic of the person taxed,
Another discrimination in favor of the blind, deaf and dumb, cripples, and partially disabled veterans of the war of' the Rebellion, is surely false if this is a police measure. If deceit and swindling is to be feared in disproportionate degree from peripatetic traders, and is less easy of punishment, all such reasons apply with equal force to the members of this-exempted class as fully as to the rest of the community. The-falsity of the discrimination would, of course, be obvious in a law which undertook to punish acts of fraud and deceit in peddling, and how can it be any more legitimate in a law" which is intended to prevent such deceits ? Certainly no considerations of gratitude due' from the community to the veteran soldier could be recognized for a moment as authorizing the legislature to exempt him, as a so-called class, from a law imposing punishment for theft or other crime, for the distinguishing circumstance would have no relation to the purpose of the law, which is to protect the public against the-commission of such offenses. To accomplish that end, it is-just as essential that the war-worn veteran, when he steals, be punished, as any other member of the community. If, on the other hand, this be a tax measure, an exemption of people-partially disqualified from means of livelihood could be justified, if at all, only upon the assumption that they, as a class,, are distinct from the rest of the community as either actual
It seems neither necessary nor wise to carry further critical analysis of this statute. We have pointed out several respects in which it fails to impose its penalties upon persons not distinguishable from the appellant by any legitimate classification. It therefore denies him the equal protection to which both by federal and state constitution he is entitled, and cam
By the Court.- — Judgment reversed, and cause remanded with directions to dismiss the complaint.