no

discrimination between merchants whose

ness of itinerant merchants to be carried | sale is subject to the restrictive or prohibitive on without a license is not invalid as a regulation laws of such state. of interstate commerce as applied to one who Leisy v. Hardin, 135 U. S. 100, 34 L. ed. purchases bankrupt stocks wherever he can, ob- 128, 3 Inters. Com. Rep. 36; Brown v. Marytaining them to the best advantage, and some-land, 25 C. S. 12 Wheat. 419, 6 L. ed. 678; times buys them in other states, when it makes Brown v. Houston, 114 U. S. 622, 29 L. ed. 257; goods are imported into the state and those whose Howe Mach. Co. v. Gage, 100 U. S. 676, 25 L. goods are manufactured or purchased in the ed. 754; Ficklen v. Shelby County Taxing Dist. state, and does not impose any burden on sales in 145 U. S. 1, 36 L. ed. 601, 4 Inters. Com. Rep. original packages brought into the state. 79; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 3. An ordinance requiring itinerant 508; Maine v. Grand Trunk R. Co. 142 U. S. merchants to pay a license fee is not lim- 217, 35 L. ed. 994. ited to peddlers but applies to a merchant who takes his stock of goods from city to city doing business for a few weeks only in each place. 4. A license fee of $10 for each day's business carried on by an itinerant merchant, without any discrimination on account of the extent of business or the length of time it may be carried on, is invalid because unnecessarily burdensome and in general restraint of trade and prohibitory of the business.

The statute of this state and the ordinance in question place no restrictions or barriers on the commerce of citizens of other states. They make no discrimination between the citizens of this state and other states or the products or property of this state and other states.

The itinerant merchant voluntarily places his property under the protection of the laws of this state. Can it be unjust to require of him the same or equal tribute that is required

5. A city is not liable for costs in a suit to of his resident competitor in business? enforce an ordinance.

(January 17, 1896.)

State v. Emert, 103 Mo. 241, 11 L. R. A. 219, 3 Inters. Com. Rep. 527; Woodruff v. Parham, 75 U. S. 8 Wall. 123, 19 L. ed. 382; Hinson v. Lott, 75 U. S. 8 Wall. 148, 19 L. ed.

APPEAL by plaintiff from a judgment of the 387; Singer Mfg. Co. v. Wright, 33 Fed. Rep.

Circuit Court for Green County which reversed a judgment of a justice of the peace imposing a fine on defendant for violation of a city ordinance. Reversed.

The facts are stated in the opinion.
Messrs. W. C. Scanland and Thomas
Henshaw, for appellant:

It was not only within the power, but the duty, of the mayor, upon ascertaining the facts, to revoke appellee's license.

Wiggins v. Chicago, 68 Ill. 372; Schwuchow v. Chicago, 68 Ill. 444.

Payment of a less sum for license than that provided by law makes the license a nullity.

Munsell v. Temple, 8 Ill. 93; Lombard v. Cheever, Id. 469: Spake v. People, 89 Ill. 617. The amount of the license fee is within the discretion of the power imposing it.

United States Distilling Co. v. Chicago, 112 Ill. 22; Dennehy v. Chicago, 120 Ill. 627.

The terms "itinerant merchant" and "transient vendor of merchandise," as used in the statute, are defined by the appellate court of this state to mean, and were intended to apply to, those persons who for a short space of time locate in a city and make sale and delivery of their goods as other merchants do.

Twining v. Elgin, 38 Ill. App. 361.

121.

Protection of the goods from all state control while in transit, and from discrimination at all times, is all that Congress can or need undertake to secure in the matter.

11 Am. & Eng. Enc. Law, p. 550, note 1; Brown v. Houston, 114 U. S. 622, 29 L. ed. 257; Munn v. Illinois,94 U. S. 113, 24 L. ed. 77; Chicago, B. & Q. R. Co. v. Cutts, 94 U. S. 155, 24 L. ed. 94; Peik v. Chicago & N. W. R. Co. 94 U. S. 164, 24 L. ed. 97; Chicago, M. & St. P. R. Co. v. Ackley, 94 U. S. 179, 24 L. ed. 99; Winona & St. P. R. Co. v. Blake, 94 U. S. 180, 24 L. ed. 99; Stone v. Wisconsin, 94 U. S. 181, 24 L. ed. 102.

The exaction is not an unreasonable or unusual one.

Howe Mach. Co. v. Gage, 100 U. S. 676, 25 L. ed. 754; Hynes v. Briggs, 41 Fed. Rep. 468; Ex parte Butin, 28 Tex. App. 304; State v. Richards, 32 W. Va. 348, 3 L. R. A. 705; Woodruff v. Parham, 75 U. S. 8 Wall. 130, 19 L. ed. 382; Hinson v. Lott, 75 U. S. 8 Wall. 150, 19 L. ed. 388; Paul v. Virginia, 75 U. S. 8 Wall. 168, 19 L. ed. 357; Com. v. Gardner, 133 Pa. 284, 7 L. R. A. 666.

Mr. Henry T, Rainey, for appellee: Any acts the city council may assume to perform, not fairly within the powers conferred, are ultra vires

A license fee imposed upon persons engaged in a given business, as that of a broker or itin eraut merchant, is not in violation of any con- Alton v. Etna F. Ins. Co. 82 Ill. 47; Chicago stitutional provision when such fees are univ. Rumpff, 45 Ill. 96, 92 Am. Dec. 196; Dill. form as to all persons of the same class within the limits of a city.

Braun v. Chicago, 110 Ill. 186: Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560; 1 Beach, Pub. Corp. § 580.

A part of an ordinance may be void and a part valid, and if so the valid part will stand. Baker v. Normal, 81 Ill. 108; Dill. Mun. Corp. 420 (353) note 3; 1 Beach, Pub. Corp. $ 512.

Where property from one state is brought into another state and has become a part of the general mass of the property of such state, its

Mun. Corp. $ 87 (55); Schott v. People, 89 Ill. 197.

No presumptions are to be indulged in favor of the validity of ordinances passed by municipal corporations.

Schott v. People, 89 Ill. 195; Dill. Mun. Corp. § 423 (355).

Ordinances must be impartial, fair, and general.

Dill. Mun. Corp. § 322 (256).

An ordinance passed under general power must be: (1) reasonable, consonant with the general powers and purposes of a corporation,

|

under the evidence, there was no abuse of this power by the mayor.

But assuming that the license granted to sell books, notions, and watches was properly revoked because the sales of appellee embraced a large class of merchandise not designated in the license, the question arises whether that part of the ordinance which provides that no person shall temporarily reside in said city, and vend at auction any goods, wares, or merchan dise, or engage in the business of itinerant merchant in said city, without first having obtained a license therefor, and fixed the license fee at $10 per day, was within the power of the city council to pass. Waiving the question that the ordinance, as set out, seems to contine the license fee of $10 to those coming within the second class mentioned above, that is, to itinerant merchants, we are of the opinion that the city council had no power to make any discrimination between residents and nonresidents of the city, or between those temporarily residing in the city and those permanently residing there, in requiring licenses, or in the fees to be paid for such licenses. This part of the ordinance confines its operation to those who temporarily reside in the city, and would seem to have no reference to the temporary character or to the permanency of the business. Under the provision in question any one permanently residing in the city could engage in the business mentioned, either temporarily or permanently, without a license, while a temporary resident would, in either case, be subject to a fine. The city council had no power to make such a discrimination, and that part of the ordinance was properly held to be invalid. Beach, Pub. Corp. 1235; Braceville v. Doherty, 30 Ill. App. 645. But, as the pro

iting agents $2 per day. All other cases not specifically provided for, $2 per day.' Appellee applied for and obtained a license to sell books, notions, watches, etc., for the period of three weeks, for which he paid a license fee of $30. The license provided that it was subject to revocation by the mayor. Soon after commencing business, appellee be gan to sell many different kinds of goods and wares not embraced within the classes mentioned in the license, both at auction and in due course of trade, at retail. His license was revoked by the mayor, and the license fee tendered back to him, but he refused to accept it. He was notified by the mayor that, for the business he was then engaged in, he would be required to take out a license as itinerant merchant, and pay therefor $10 per day. Appellee refused to procure such license or pay the amount demanded, but continued to sell as before. Complaint was made under the ordinance, charging him with temporarily residing in said city, and vending at auction goods, wares, and merchandise, and for engaging in the business of itinerant merchant in said city, without a license. A fine of $3 and costs was assessed by the justice of the peace. When the ordinance was offered in evidence on the trial in the circuit court, it was objected to by appellee on the ground that both the ordinance and the statute authorizing it, approved June 16, 1887, providing that cities, etc., shall have power to license, tax, regulate, suppress, or prohibit itinerant merchants and transient vendors of merchandise" (Rev. Stat. Meyer's ed. 1895, p. 232) were "unconstitutional and void; that they are unreasonable, in restraint of trade, tend to create monopolies, objectionable as class legislation, and discriminate between residents and nonresident auctioneers and mer-vision relating to itinerant merchants had no chants, and, as applied to the facts in this case are an attempted interference, by state regulation, with interstate commerce.' The objection was sustained by the court, as to the first charge in the complaint, and later in the trial, at the close of the evidence, the court sustained the motion of the defendant to exclude the ordinance altogether from the jury, and to instruct them to find for the defendant. The jury returned their verdict as instructed, and, after overruling appellant's motion for a new trial, judgment was rendered against the city for costs.

necessary connection with or dependence upon the first- mentioned provision, it may be separately enforced, unless found to be also invalid upon other grounds held sufficient in the court below to invalidate it. The power of the legislature to authorize cities and villages in this state to license and regulate various kinds of business and occupations carried on within their limits, and to require the payment of license fees, has so often been the subject of review, and so often sustained, by this court, that no extended discussion of the general subject will here be attempted. It has been held It was insisted by the defendant that the evi- that such power is inherent in all governments; dence showed that he was not a resident of this that, except so far as limited or restrained by state, and that he was engaged in the purchase the Constitution of the state or of the United of bankrupt stocks of goods in other states, States, the legislature has such power, as being and shipping them into this state for sale, and the repository of all the power of the people that, as applied to the facts of this case, the not taken from it. And by repeated decisions ordinance was an attempted regulation of in- of this court it has been held that a mere license terstate commerce, and void for that reason fee imposed by the municipal authorities under also. The evidence showed that the defendant authority of an act of the legislature is not a purchased such stocks of goods wherever he tax. Chicago Pkg. & P. Co. v. Chicago, 88 Ill. could obtain them to the best advantage, and 221, 30 Am. Rep. 545; Wiggins Ferry Co. v. sold them out at retail,-sometimes at auction East St. Louis, 102 Ill. 560, and cases there and sometimes in due course of trade; that for cited. And since the adoption of the Consti this purpose he opened stores or places of busi- tution of 1870, containing the provision in § 1 ness in different cities and villages, shipping of art. 9, that "the general assembly shall have from one to another, usually continuing in busi-power to tax peddlers, auctioneers, brokers, ness only a few weeks at a time in any one bankers, merchants, commission merchants," place. Both the ordinance and the license itin such manner as it shall from self provided for the revocation of the license time to time direct, by general law uniby the mayor, and we are of the opinion that, form as to the class upon which it operates,"

goods are imported into this state from other states, and those whose goods are manufac tured or purchased in this state, and shipped from place to place for the purpose of sale. Nor does it impose any tax upon, or require the payment of any license fee for, the sale in the original package of any articles imported from another state. But the effect of the ordinance is to impose the burden, not on those engaged in importing goods into the state for sale, nor on the goods, as such imports, but upon those who are engaged in the business of selling goods as itinerant merchants, after such goods, if imported, have been so acted upon by the importer as that they have become mixed up with the mass of other property in the state. The evidence in this case showed that the goods were purchased at assignees' and other bankrupt sales;' some in this and some in other states; and that the stock in question was composed of such goods, a part of which had been left unsold, and brought from some other

and 9 and 10 of the same article, requiring uniformity in taxation as to persons and property, the same view has been maintained, and that these provisions of the Constitution have not changed the power of the legislature to authorize municipalities to require and collect such license fees. Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560. In the case cited it was said by Mr. Justice Walker, in delivering the opinion of the court (p. 567) that: "The latter words in the first section, requiring the tax to be by general law, and uniform as to the class upon which it operates, have no operation upon this case, because this, as shown by the cases cited, is not a tax, but a license. The Constitution has not prohibited the general assembly from imposing, or authorizing the imposition of, the duty to procure a license to pursue any calling, nor has it limited the power or limited its exercise. In this respect the power of the legislature is the same as it has ever been since the organization of the state government, and no one, we presume, will question the legisla-city or village in the state, where appellee had tive power to require persons engaged in vari ous avocations to procure a license for the purpose, and thus regulate the exercise of an avocation." While, in numerous other cases in which it was urged that the license fees exacted were taxes, and within the provisions of the Constitution above referred to, the question whether the ordinances conformed to those provisions was discussed, yet the doctrine announced by this court in previous cases has not been departed from. Howland v. Chicago, 108 Ill. 496; Timm v. Harrison, 109 Ill. 593; Braun v. Chicago, 110 Ill. 186; United States Distil ling Co. v. Chicago, 112 Ill. 19; Kinsley v. Chicago, 124 Ill. 359.

last carried on his itinerant merchandising. We think it too clear for extended argument that there was no interference with, or attempted regulation of, commerce between the states in the enforcement of the ordinance in question. This question was discussed and the previous decisions of the Supreme Court of the United States reviewed by Mr. Justice Gray in Emert v. Missouri, 156 U. S. 296, 39 L. eď. 430, 5 Inters. Com. Rep. 68, to which reference may be had for the doctrine of that court on this question.

But was the ordinance void for any of the further reasons urged against it? We do not think it necessary to consider here whether or The ordinance appears to have been framed not the legislature had the power to prohibit, upon the same theory as other license ordi- or to authorize municipalities to prohibit, mernances, and not upon the theory of levying chants, whether permanent or itinerant, from taxes in the ordinary acceptation of that term. carrying on the business of merchandising. It And if, under the statute in question authoriz- must, however, be presumed that it was not ing cities to "license, tax, regulate, suppress, intended, by the act of 1887, to authorize cities or prohibit itinerant merchants and transient and villages to suppress itinerant merchants, or vendors of merchandise," it should be con- prohibit them from carrying on their business, ceded the city of Carrollton had power to tax unless there should be, in the character of the itinerant merchants, as distinguished from the goods sold, or in the manner of conducting the power to require them to pay a license fee, we business, something detrimental to the public are of the opinion that the ordinance was good health, morality, comfort, or conveniframed under the former, and not under the latence. No such grounds for the suppression or ter, power. We shall therefore consider the prohibition, as a police regulation, of the busiobjections urged against the validity of the j ness of appellee, appeared or was shown. Nor ordinance, and of the statute under which it was passed, without reference to the provisions of the Constitution above mentioned, relating to taxation. It is urged with much force that the statute itself is unconstitutional, that the legislature has no power to suppress itinerant merchants or transient vendors of merchandise, or to prohibit them from follow ing their avocation; and, as applied to the facts of this case, it is insisted that, even regarding the exercise of the power as one to license and regulate, it is in violation of the Federal Constitution, and the legislation of Congress there-essary incident to its ownership, and, subject to under, as an attempted regulation of interstate commerce, and to the latter phase of the question the arguments of counsel have been chiefly addressed.

We do not think that the latter contention can be sustained. The ordinance makes no discrimination between such merchants whose

can it be said, we think, as a general proposition, that there was anything in the business in which appellee was engaged that authorized its suppression by law. The Constitution provides that "no person shall be deprived of life, liberty, or property without due process of law;" and we have recently held that the right to contract with reference to one's own labor is a property right, and cannot be taken away by mere legislative enactment. Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79. The right to buy, sell, barter, and exchange property is a nec

reasonable regulations, is as much protected by this provision of the Constitution as is the ownership itself. The grounds upon which the sale of intoxicating liquors may be prohibited have no application to the business of the ordinary merchant. In Schwuchow v. Chicago, 68Ill. 444, it was said that the restraints which the

law applies to the liquor traffic "are not like such as restrict the ordinary avocations of life, which advance human happiness, or trade and commerce-that neither produce immorality, suffering, nor want. This business is, on principle, within the police power of the state, and restrictions which may rightfully be imposed upon it might be obnoxious as an illegal restraint of trade when applied to other pursuits." Similar views were expressed in Dennehy v. Chicago, 120 Ill. 627. In Launder v. Chicago, 111 Ill. 291, 53 Am. Rep. 625, an ordinance requiring licensed pawnbrokers to make out, and deliver to the superintendent of police, every day, a copy from a book to be kept by them of all personal property and other valuable things received on deposit or purchased during the preceding day, with a description of the persons from whom received, was held a reasonable exercise of the police power for the prevention and detection of crime; and it was there said the business might be prohibited altogether, under the power conferred on the city. It was not, however, put upon the ground that the city might absolutely suppress a lawful and harmless business, but that the power might be exercised for the prevention of crime. We must therefore conclude that it was not the intention of the legislature to authorize municipalities to arbitrarily suppress merchants, or prohibit them from carrying on their business, within the corporate limits, on the ground that they are itinerant or transient, instead of permanent, as applied to their business in the municipality.

With

case, than that of itinerant merchant.
out finding it at all necessary here to undertake
to give any precise definition of the term, ap-
plicable to other cases that may arise, we hold
that appellee was an itinerant merchant. A
different conclusion seems to have been reached
by the supreme court of Georgia in Gould v.
Atlanta, 55 Ga. 678, where it was held that a
trader who opened a store, and proceeded there-
to sell out a large stock of goods, and did not
convey any of the goods from place to place
in the city, and sell in that way or by sample,
but waited for customers to come to his place
of business, was not an itinerant trader, within
the meaning of the charter of the city and the
laws of that state. But in that case the court
defined the terms "itinerant trader" and "ped-
dler" to mean substantially the same thing, as
they had theretofore been used in the same
sense in the statutes and decisions of that state.
But the reasoning there employed cannot con-
trol here, and, without stopping here to point
out further distinctions between the two cases,
we must hold that appellee was, within the
meaning of our statute, an itinerant merchant.
A conclusion similar to the one here arrived at
was reached by the appellate court of the sec-
ond district in the case of Twining v. Elgin, 38
Ill. App. 361.

Holding, then, that the city of Carrollton had the power to license and regulate the business of appellee, but not to suppress or prohibit it, the question is presented whether or not the requirement of the payment of a license fee of $10 per day was unreasonable, oppressive, and As applied, then, to the case under consid prohibitory in its character; for it must be eration, we must consider the ordinance as one conceded that, if the city had no power to supto license and regulate itinerant merchants, press or prohibit directly, it had no power to without authorizing the suppression or prohi- do so indirectly, by the imposition of unreabition of their business. Appellee contends sonable and oppressive burdens. In Braun v. that he was not an itinerant merchant, within Chicago, 110 Ill. 196, it was said: "Nor is the the meaning of the statute and the ordinance. objection well taken that no business can be He insists that an itinerant merchant and a ped-regulated, or burthens imposed on its pursuit, dler mean the same thing. We do not think 80. Neither the statute nor the ordinance has furnished any definition. But it cannot be supposed that the legislature would have passed the act in question, authorizing the licensing of itinerant merchants and transient vendors of merchandise, if the power had already been conferred in the provision in the general incorporation law relating to peddlers and hawk

ers.

We think the words used very clearly express the meaning of the law-making power, and that they would generally be well under stood. The word merchant" has a well-known meaning; but whether a particular trader is a merchant, or not, might, under the facts of the particular case, be somewhat difficult to deter mine. But it cannot be doubted that appellee was a merchant. He opened a store, stocked it with various articles of merchandise, and sold as other merchants do. And the only difference, aside from selling sometimes at auction, was that his business was not permanent in the particular city or village in which, for the time, it was carried on. It was not intended to be permanent,-it was intended to be, and was, transitory. He took his stock of goods from city to city, sold his goods, and transacted business as a merchant, for a few weeks only in each place; and we cannot conceive of a more appropriate designation, as applied to his

unless there be power to suppress the business.
In the case of Wiggins Ferry Co. v. East St.
Louis, 102 II. 560, it was held the legislature
had power to authorize the city to regulate the
ferry, and impose a license fee for each boat
used by the company, notwithstanding the
franchises the companies were exercising were
granted by charter from the legislature. Yet
no one will claim that the legislature could
repeal the charter or impair its franchise, or
authorize the city to do so. This case was af-
firmed in the Federal Supreme Court. 107
U. S. 365, 27 L. ed. 419.
Until of compara-
tively recent date our legislature required all
merchants of every kind to pay for and pro-
cure a license to vend their goods, wares, and
merchandise, under a penalty. Nor are we
aware that the power was ever questioned.
And similar laws have been in force in the
various states of the Union, from their organ-
ization until a recent date, if not until the
present time. In the case of Howland v. Chi-
cago, 108 Ill. 496, it was held that the legisla-
ture had power to authorize the city to require
a keeper of a livery stable to procure a license
for the purpose, under a penalty for failing to
do so. Such an occupation is a natural right,
as legitimate as is that of either of these ap-
pellants." And in Kinsley v. Chicago, 124 Ill.
363, after stating the rule laid down by other