151 A. 650 | Vt. | 1930
The defendant was charged with a violation of an ordinance of the village of St. Johnsbury, in that he had conducted a business for the purchase and sale of junk, old metals and secondhand articles, and had maintained a yard for the storage of, and dealing in, such articles, without first having obtained a license so to do. He was tried by the Caledonia County municipal court, and judgment was entered for the plaintiff village to recover the penalty prescribed in the village charter. The case is before us on defendant's exceptions to the refusal of the trial court to enter a judgment in his favor. The grounds for the motion were that the ordinance in question is unconstitutional, because it is repugnant to Articles 1, 4, and 7 of Chapter 1 of the Constitution of Vermont and to *25 the Fourteenth Amendment of the Constitution of the United States.
The ordinance, so far as material, is as follows:
"No person shall engage in business for the purchase, sale or barter of junk, old metals and secondhand furniture, and no person shall collect by purchase or otherwise junk, old metals or secondhand articles from place to place within the corporate limits of the village of St. Johnsbury, or conduct a shop or other place for the storage of or dealing in any such articles without first applying for and receiving a license so to do, which application shall contain a full statement of the conditions under which the said business is to be carried on and such application shall be kept on file in the village Clerk's Office. The place where, and the conditions under which the business shall be conducted shall be determined by said Trustees, but no person shall be granted a license to conduct a yard, or other outdoor place for the business of storing or dealing in junk or old metals, or secondhand articles unless said yard or other outdoor place shall be enclosed by a neat, substantial fence at least six feet high, approved by the Trustees. The license fee shall be Twelve Dollars ($12.) and the granting of any such license shall be wholly within the discretion of said trustees and if issued may be revoked at any time for cause. * * * *"
The invalidity of this ordinance is claimed to consist in the fact that it leaves to the arbitrary discretion of the village trustees the question whether anyone can engage in the businesses mentioned therein and does not specify any rules or regulations upon compliance with which the right to do so can be exercised; so that the defendant is thereby deprived of the right to acquire, use, and enjoy his property; of the equal protection of the law; and of his property without due process of law.
The ordinance is expressly authorized by section 4 of the St. Johnsbury Village Charter (No. 179, Acts 1927), by which the village is empowered, subject to the general law and to certain limitations not here material, to pass ordinances and bylaws respecting "the construction, location and use, and the licensing if the trustees deem necessary of * * * * * * junk businesses * * * *."
It is argued that the defendant is not in a position to raise the question of the invalidity of the ordinance, because of *26
the alleged arbitrary power therein granted to the board of trustees, since he has made no application for a license, and consequently has not been refused one. Certain language inGundling v. City of Chicago,
It is well settled that statutes providing for the regulation and licensing of the business of dealing in junk and secondhand articles are a valid exercise of the police power of the state.Comm. v. Hubley,
Every presumption is to be made in favor of the constitutionality of such an ordinance, and it will not be declared unconstitutional without clear and irrefragable evidence that it infringes the paramount law. Clark v. City of Burlington,
Nevertheless, the exercise of this power must be reasonable and whether it is reasonable in the particular instance is a question ultimately for the court. State v. Haskell,
An ordinance which invests an official or board of officials with authority to grant or withhold a license to engage in a lawful business according to his or their arbitrary discretion is unconstitutional and void. The leading case upon this doctrine isYick Wo v. Hopkins,
In Noel v. People,
"A law which invests any board or body of officials with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, is invalid."
In City of Portland v. Trayner,
The rule is clearly stated in City of Richmond v. Dudley,
To the same effect are the following: State ex rel. Makris v.Superior Court,
The doctrine has been recognized by this Court, since in State
v. Harrington,
There are decisions which are claimed by the plaintiff to support the ordinance in question. But, upon examination, some of them will be found to deal with ordinances which establish some criterion by which the licensing board are required to act in passing upon the application, such as the personal fitness of the applicant or the suitability or adequacy of the premises or appliances to be used; while others have to do with the control of the municipality over the use of the public streets and parks; still others either expressly or impliedly recognize the rule which we have stated above but construe the particular ordinance in question to exclude the grant of arbitrary power. Two cases only, upon which the plaintiff especially relies, need be particularly noticed.
In People ex rel. Lieberman v. Van De Carr,
In Engel v. O'Malley,
It is obvious that neither of the two foregoing cases is opposed to the rule that the granting of arbitrary power would render the ordinance invalid.
The issue concerns the construction of the ordinance before us. Tested by the doctrine stated above, its invalidity is apparent. No rules are laid down for the guidance of the trustees; they are not required to consider the personal fitness of the applicant, the propriety and convenience of his location or premises or any other thing in granting or withholding permission to carry on the business. No regulations are prescribed the compliance with which will entitle the applicant to receive a license. The requirement of a fence does not so entitle him. Whether or not the license is to be granted lies wholly in the discretion of the trustees and this discretion they may exercise arbitrarily and for personal and private reasons.
It is urged that the discretion given to the trustees is a legal discretion and that it is not to be presumed that it will be exercised in an arbitrary or unreasonable manner. But in testing the constitutionality of an ordinance the validity of which is attacked for the reasons here given what may be done under its authority and not only what has been done, is to be considered. Spann v. Gaithier,
In view of this disposition of the case, it is unnecessary to consider the other questions argued.
Judgment reversed, and judgment for defendant to recover hiscosts.
NOTE. — When this case was argued at the February Term, 1930, it was assigned to MR. JUSTICE WILLCOX. At the May Term, 1930, it was reassigned to MR. JUSTICE MOULTON.