Brief for the Appellant — Healy v. Ratta

Supreme Court brief1934

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Concise Statement Of The Case | I1I-IV

Matter In The Brief: i

A. ‘The Valye Of The Snbject Matter~In Controversy Does

Not Exceed The Sum Of cfhree Thousand Dollars. —

B. The Classifications Under “the Provisions Of Section 3 .

Of This Act Do Not Violate Section 1 Of The Four: *

teenth Amendment To The Constitution Of The United

States. - . 6

I. The Pow er Which The Legislature Of The State Of

"+ New Hampshire Has. Exercised In Its Regulation

Q{sHawkers And Peddlers Is Authorized By The

Police Powers Of The Constitution. ° 5

II. The Classifications Are Based On Reasonable Dis-

tinctions. ‘6

C. ° ‘The Provision Of Section 11° Which Exempts Disabled

Soldiers And Sailors And Their Widows of fhe Four

License Fees Doés Not Violate Section 1 Of The Four

teenth Amen ment To Thé Constitution Of the United.

States. 13

D. * The Provision Exempting Residents Of 1 This State Over :

The Age Of Seventy From Paying License Fees Does

. Not Violate Article 4,-Section 2 Of, And Section 1 Of,

The Fourteenth Amendment To The Constitution Of

The United States. 16

KE. If Either Or Both: Classes Of sii And Any Of

The Exceptions Are Unconstitutional The Remainder

Of The, Act Stands. tae | Fe 17

Table Of Cited Cases. 7 ; V-VII

Table Of Cited Statutes. a . Vil.

Specification Of Assigned Errors Intended To Be Urged Vill.

Official Reports Of The Opinions Delivered’ In The Courts Below.

Ratta v. Healy, 1 Fed. Sup. 669. 2

_ Healy v. Ratta, 289 U. S. 701. /

Healy v. Ratta, 67 Fed. (2d) $54 (1933).

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_.* CONCISE STATEMENT OF THE CASE

The plaintiff in the court below brought a bill in equity to re-

strain the defendant, the chief of -police of Manchester, New Hamp-

'_ shire, from- enforcing the hawkers and peddlers act (chapter 102,

‘Laws of 1931 of the State ‘of New Hampshire) against the ,plain-

tiff’s canvassers. Originally the plaintiff prayed for temporary

relief and a preliminary injunction but later waived these prayers.

In.part the plaintiff alleged that the statute contravened article

_ 4, section 2 of,,and article 14 of the amendments to the Constitu-

tion of the United States in that, by reason of the alleged arbitrary

and discriminatory character of séctions 3 and 11 of said statute

providing for certain exceptions, and exemptions, he was denied

the equal protection of the laws, the rights, privileges and im-

munities granted to the citizens of the state of New Hampshire and

his property was taken withowlt dué process of law. He alleged

that his business would suffer irreparable damage by reason of the

cgnforcement, of this law against him and: his canyassers.

The defendant moved to dismiss the bill ‘because the value of®

the subject matter did not exceed, the sum of three thousand dollars;

because the” plaintiff had a plain..adequate and complete remedy.

at law and because of Want of jurisdiction in equity and in further

answer denied that the act was in whole or in part unconstitutional.

‘The defendant further contended that if’the act was in part. un-

constitutional nevertheless such part as was held unconstitutional

was severable from the balance of the act which should -reniain in

force.

The district court of its own motion established a specially con-

. stituted court of three judges to hear the ‘issue whéther a per-

‘manent injunction should be granted. The court ruled that the

entire act was unconstitutional and that section 11 of the act

violated article: 4, section 2 of the Constitution of the United States

_ and that sections 3 and 11 of the act violated section 1 of the four-

teenth ‘amendment to the Constitution of the United States.

On November 29, 1932 the court entered the decree enjoining:

the defendant and his officers From enforcing the act against the

‘plaintiff and his dealers in ¢onnection with their Selling of’ Air-

Way Vacuum Cleaners and. parts. The defendant appealed to

this. court. : é

; * This court dismissed the appeal on jurisdictional ‘grounds ou

March 20, 1933. The defendant- appealed to the circuit court

of appeals and that court affirmed the decree of the district

court. The defendant now appeals to tHis éourt and assigns as

errors the rulings of the courts below that sections 3 and 11 of the

act were unconstitutional and that the act was unconstitutional in

whole and filed his definite statement of the points,on which he

° intends to rely (page 52, transcript of _retord ) and_ intends to

urge these same points before this court.

This court further requested argument of the jurisdictional ques-

tion whether the amount in controversy is such as to sustain the

jurisdiction of the district court. The appellant denies that the

distriet court had jurisdiction and respectfully. submits that the

decree of the circuit court of appeals should be rev ersed and that

the decree ofthe district court should be vacated, with judgment

for the appellant with costs. rae

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TABLE OF CITED CASES. o-

7% : F Age :

American Sugar Refining Co. wv. Louisiana, 179 U. S. 89, 92. 1}, a

. ae

Baceus v. Louisiana, 232 us S. 334. 5 |

Bliss’s Petition, 63 N.H.135. - @ 16,17

| VO g

3 . &, |

Central Lumber Co. v. South Dakota, 226 U. 8S. -157, 160. 6

Commonwealth v. Gardner, 133 Pa. St. 284; 19-Atl. 550. 8

Commonwealth v. Hana, 195 Mass. 262. 13, 14

: Commonwealth v. Rearick, 26 Pa. Sup. Ct. 384, 396. a

Connolly v. Unign Sewer Pipe Co., 184 U, S. 540, 559, iy

Crenshaw v. Arkansas, 227 U. S, 389, 396. oy ee

- —D 7 |

Dominion Hotel v. Arizona, 249 U.S. 265, 268. . 7 12

East Kirigston v. Towle, 48 N. H.57. - aes =

Emert v. Missouri, 156 U. 8. -296. : ‘ 5

Ex parte Crowder, 171 Fed. 250. , 6, 8

Ex parte Thornton, 12 Fed. Rep. 538. 2 8°

“ -

_ Hall v. Geiger-Jones Co., 242 U.S. 539, 556. ~ | 6

- Hays v. Commonwealth, 107 Ky. 655; 55'S. W. 425.0 |

; ese 2 5 s i ;

In re D. C. Abel, 10 Idaho, 288, 292. eo.

ws . z

. K - Gs

ow shir v. Overton, 68 ‘Sinan 560, 565. ede s

’ Keokee Consolidated Coke Co. v. Tayler, 234 U.S; 224; 227 a)

re ,

Soe RN le TE, Tis

2 .¢ ee. TS

SE OR ST

VI.

Marallis v. City of peng (tunes 24, 1932), 182 N. E. Rep.

394, 399. 4, 13, 14

, McKnight v. ¥ ge (Wash.), 104 Pae. 504; 506, 8

| Cig ae ee

Opinion of Justices, 76 N. H. 601, 605. ' 17

. : P :

People y. DeBlaay, 137 Mich. 402, 405. 7, 8

People v. Sawyer, 106 Mich. 428, 430. - .. ‘ 8

a a. ,

Quong Ham Wah Co. vy. tnd. Ace. Comm. (Cal. 1920) 192

Pac. 1021; 12 A. L. R. 1196 1200. * 17

Quong ‘Wing v..Kirkendall, 223-U. 8. 59, 62. : 6

, - Sm

-Rast v. Van Deman and Lewis, 240 U. S. 342, 357. 6.

Robbins v. Shelby District, 120 U. 8. 489. , : ce

Ss “

Singer Sewing Machine Co. v. Brickell and Alabama, 233

U.S. 304. 5

State¥y, ove 71 N. H. 224. 6

State v. Montgomery, 92 Me. 433. , re

State v. Shedroi, 75 Vt. 277. T3

- State v. Stevens, 78 N. H. 268, ie 4 17 |

State v. Webber, 214 Mo. ora; 113.8. W. 1054. 8

7 a

T . a

Tanner y. Little, 240 U. 369: o - 9

Town of Green River v poate Brush Co. (€. C. A.). 65

o Fed. 2d, 112” (1933), ax a 1, 6

. o

United States v. Hall, 98 U.S. 343, 25.1. Ed. 180 . 14

Pad

- Wagner v. City of Covington, 251 U. 8. 95. ’ .

Western & Atlantic R.R. v. Railroad Commission,

? . 261 U, 8. 264, 267. us '

9 - J‘,

General Laws (Massachusetts) chapter 101, section 24.

TABLE OF CITED STATUTES

, Province Laws of New Hampshire 1718, chapter 3

_Laws of 1893, chapter 65, section'5 .

Laws of 1919, chapter 24, section 1 ‘

Laws of 1919, chapter 140 °

‘Speeial Sessign 1919, chapter 1

Laws of 1925; chapter 153, section 1 — a

Publie Laws 1926, chapter 60, sections 1, 2, 4, 26

Public Laws 1926, chapter 196, sections 19, 20

Public Laws 1926,.chapter 202, section 5

Laws of 1931, chapter 165

15, 16

”

“3

_ to Hawkers and Peddlers’’ is in entirety in contravention of, the

f VI 3

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“SPECIFICATION OF ASSIGNED ERRORS INTENDED.

TO BE URGED.

€ . .

The- court .erred in holding that the statute of the state of

thes Hampshire enacted. April 14, 1931 entitled ‘*An Act Relating

Constitution, of the United States, especially of ‘article IV, section

2 and of the fourteénth ‘amendment to said Constitution and there-

fore is in entirety unconstitutional and void.

2. The court erred 4n holding that section 3 of said act is in

contravention of the Constitution of the United States, especially”

of article [TV and section 1 of the fourteenth: amendment to atid “

Constitution. ;

4. The court erred in hoTding ‘that section 11 of said aet is in

contravention of the Constitution of the United States, especially of +

article IV, section 2 and of section 1 of the fourteenth amendment,

to said C onstitutipn.

. At the direction of this court the appejiant contends’ and

will argue that the district court did not have jurisdiction over the

controversy because the value of the’subject matter did not exceed

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the sum of three thousand dollars,

5. Because of the aforementioned, errors the gourt erred in re-

fusing to grant*the motion filed by ‘the defendant to dismiss the,

bill in equity. '

ARGUMENT

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THE VALUE OF THE SUBJECT MATTER. LN, CONTRO-:

VERSY DOES NOT EXCEED THE SUM OF

THREE THOUSAND DOLLARS. .

The district court found that the amount in controversy exceeded:

three thousand dollars by the application’ of the principle of capi- .

talizing the annual license fees.

The circuit court. of appeals found it unnecessary to apply this

princiyfe in order’to fulfill the jugisdictional ‘hequirement. It

stated that the value of the object to be gained is the test of the

amount inyolved and that this object is the right to conduet. the

_ business free’from wrongful interference by the ‘appellant. The

circuit court of appeals then fell into plain error. It found that

the jurisdictional requirement was satisfied on the reasoning that

the object to be ‘goined was the value of the plaintiff’ 8 business in

the entire state of Néw Hampshire. s

' The, object, to be gained however is the plaintiff’s right to con-

duet his busirf@ss in the city of Manchester free from w rongful in-

terference by the appellant. It is thevalue of this right which

spust exceed three thousand dollars.’ This is not a: suit against’

state officials embracing state wide jurisdiction. It is a suit against

- the officials of ‘the city of Manchester. ‘

The appellant contends that he is not interfering with. any prop- }

erty right of the plaintiff whose agents peddle from door to door.

“The act of strangers in going upan private property uninvited

and ringing door bells is not in our judgment a property right.’’

‘Town of’ Green River V~Fuller Brush Co., (C. C. A.) 65 Fed. 2d,

112 (1933). ‘

Unless the principle of capitalizing Heenee fees is applicable the

evidence clearly shows that the value’to be placed on the inter-

ference of the Mancheste? police is vague and conjectural and does

not exceed three thousand dollars.

At the hearing in. the district court the plaintiff did not produce

his reeords to support his allegations and to serve as a basis for

cross examinatidn. *Counsel.-for the respondent thérefore agreed

that a deposition as to the actual losses might be submitted to the

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court ata later period. ‘Ratta’s general testimony concerning’ the

loss he attributed to the respqndent was to Be made more specific

. by the later introduction of figtires showing his actual loss attribut-.

able to the respondent. In order.to present figures showing the

actual loss the plaintiff called upon Frank J. Haessler, ‘accountant

for the Ait-Way Electric ' Appliance Corporation. Haessler’s

figures as submitted in ‘his affidgvit anel Supplementary affidavit

contradict“and disprove statements made by Ittta at the hearing»

It must be kept*in mind that Ratta’s territory covered western

Massachusetts, Vermont and New ITampshire and that the juris-

dictiOnal amount can only be satisfied by showing that in the city

of Manchester alone the vilue of the respondent's Wrongful inter-

ferente in the plaintiff's right to conduet his business is over three*

‘thousand dollars, Statements quoted hereafter are from the state-

ment of evidence as agreed upon by the parties and printed on

> - page twenty-seven of the transcript of record, : :

Ratta testified ‘‘In May and June 1931 his biisiness suffered a

slump, the reason being the enforcement of the hawkers and

peddlers law against the agents whereby they had to get a license

or sell by sample and deliver at a future date.’’ Haessler’s figures

for the plaintiff show just the opposite. There was po slump in

' Manchester. The Manehester business in the last half of 1931 in-

creased over the first half of 1931 although the plaintiff’s business

. : in the balance of New Hampshire, in Vermont and if} Massachu-

setts slumpéd badly. Instead therefore of showing that the re-

spondent wrongfully interfered with the plaintiff’s business in

: Manchester in the amount of. three thousand dollars’ Haessler’s

t figures show beyond doubt that the Manchester business increased.

- Ratta furthérstated that he could not hire Aperienced salesmen

4 | because they did not wish to do business. by the method of sale by

ls sample. ‘* All that he could employ as agents were men without

tie experience who had been out of work for a long time, men that were

? desperate."" In Manchester however, in the first half of 1931 when

: ‘no hawkers and peddlers act was being enforced against Ratta. he

i as ‘ had an average of six dealers with an average gross sales per dealer

wt $312.10. Presumably fhese dealers were experienced men. lr

the last half of* 1931) in Manchester, . when the hawkers and

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peddlers act was being enforced and when Ratta had to do

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4 business by the method of sale by sample. hie had the same average

; of six dealers whose average gross sales per dealer were $321.50.

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Apparently therefore the inexperienced and ‘“desperate’’ dealers

selling by sample and averaging $321.50 per dealer in the latter

half of 1931 were more profitable to Ratta than the six experienced

dealers making delivery at the time. of salé in the first half of 1931

whose average. gross sales per dealer “tare only $312.10. In all.

events in the city sof Manchester Ratga did a better. barsiness ingthe

latter half than in the first half’of 1931 and. Manchester is the only’

part of his fenmitory, showing rgavorably increase for this period.

It is difficult: therefore to understand, how the respondent wrong-

- fully interfered with the plaintiff’s business in Manchester to the

amount of three tHousdand dollars. «If the respondent did wrong-

~ fully interfere in Manchester it was for the benefit of Ratta:

. Ratta further ‘stated’ “During 1931 and 1932 the Verntont

business showed a profit., The Massachusetts business carried along:

fairly well. The Massachusetts and Vermoit business during.1931

and 1932 has held up to the average production before whereas in

New Hanipshire and in Manchester during this period the business

deereased.’’ Haessler sukmitted no figurestallocating the profit for

any particular district orthyrvitory. He said hé was unable to do

so. The figures he did submit show an increase in the Manchester

business in the latter half of 1931 over the first half of 1931 and

a drop in the gross sales of western Massachusetts business of

approximately 75% in the same ig nd a drop in the Vermont

gross sales of approximately 5) he XG “same ‘period. . These

figures , show beyond all doubt that ‘ie Ma sachusett# and Ver rong

business during 193J' and 1932 did not hold up to the average

production before and clearly indicate that Ratta’s testimony is

unreliable. He further stated ‘‘The results of the business in

Ratta’s entire territory during tlie first half of 1931-showed losses”

of thirteen hundred dolT#¥ ar for the second half of 1931 a loss

-of forty-seven hundred dollars and during that time Massachusetts

and Vermont at least held their own. Ratta“knows of nothing else

‘ except-the enforcement of this act toe cause the loss.’’ This state-

ment, taken im connection with Haewger’ sdigures showing a “drop

_ of 75% in the Massachusetts gross sales*and a drop of 31% in the

Vermont gross sales for the second half of 1931, conclusively indi-

cates that Ratta erred. Ratta cannot blow hot and his own.account-

ant blow cold and expect the court to belfeve both. It comes down

to the question of who the court should believe — Ratta’ or his

accountant. The figures speak for themselves,

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Ratta further stated that “The situation in Manchester affected

his business elsewhere because he trained and hired all his men- for

.° New Hampshire at the Manchester office and not having the proper

number of men functioning in Manchester itseemed to break down

the morale of new men.’’ Haessler’s figures Show that Ratta aver-

* . ,aged six dealers in the first half’of 1931 and six dealers jn the |

latter half‘of 1931. Presumably six dealers were thé proper num-:

ber iit the first hal? of the year and he kep#’the same number during

the latter half, consequently there is no basis for his statement.

Clements, Ratta’s thanager, testified that ‘‘In* the city of Man-

chester alone the volume of sales was probably 2597 in the Yast six

months of 1931 compared to the volume done in the first six months

of the same yvear.’’

of 754.. as Clements would have the court helieve, there was a

slight increase. -

In ‘view of the Manchester business holding up in.the latter half

of 1941 afid the business. in the other districts of. Ratta’s territory

showing a sharp decrease it would appear that Ratta suffered no

loss in Manchester. ots

The truth of the matter is clear. * Ratta’s loss was due to un-

favorable business conditions. The plaintiff's Manchester business,

in which we are most interested. dropped from $11,044.50 in 1930

to $1,902.60 for the first half of 1931 when no hawkers and, peddlers

act was in force. Prorating his 1930. business this sh@ws a drop

of some 65% in Manchester. In ‘the last six months of 1929 he

showed a profit of $11,004.57 for the entire territory of western

Massachusetts, Vermont and- New Hampshire. His profits then fell

to $10,384.30 for the entire year of 1930. Proratiiig his 1929 profits

* this shows a drop of 52% for the year 1930. For the first half of

1931. when the hawkers and peddlers act was not in force,"Ratta’s

profits were completely eliminated and he showed a net ‘loss of

$627.66, or a drop of 112% from the preceding six months. His

business was on the skids then before the. hawkers and peddlers

act was, passed.” That is the reason for his extra efforts and for

"hiring a new manager. Ile should not now be able to say that his

‘loss was caused by the defendant's wrongful interference.

It must. be kept in mind that the fee is exacted from the in-

dividual hawket and peddler.’; If the complainant pays the fees

of his agents he does it under no legal obligation but as a volunteer.

Iie cannot attribute his loss, if any, to the enforcement of this state_

* +

Haessler’s figures show that instead of a loss .

_ law against his agents. Such loss. is attributable to his own choice

"of voluntarily assuming the obligations of. his agents, The amount ’,

.of these obligations is-the total of the license fees he pays.

The dilgriet court found that-by capitalizing an expenditure of

three hundred dollars; which the complainant would payStor SIX

licenses in Manchester, the amount would exceed three thousand.

dollars. The court applied ,this principle under the authority of

* Western & Atlante R. R. v. Railroad Commission, 261 U.S . 264,

267. In that case however the court. held if the injury to ‘te én-.

" , joined is permanent the amount of controversy: may be found by

capitalizing the annual detriment from it: There is nothing per-

manent in the nature of the investment in the present case. - The

* fees required are aynual fees. The plaintiff may feel inclined :to

pay them this year and Lg next year. He may feel incliifed to do

business in New Hampshire this year and nt next year. He may

feel inclined to pay the fees this year and make his agents pay

them next year. The legislature may abolisi? or diminish the

amount of the fee. He has made no permanent investment which-

would enable the court to apply the principle of capitalization.

It is therefore submitted that the value of the subject matter in

controversy does not exceed the sum of three thousand dollars and

that the district ‘court therefore failed to have jurisdiction.

THE CLASSIFICATIONS. UNDER THE PROVISIONS OF

SECTION 3 OF THIS ACT DO NOT VIOLATE SEGTION

1 OF THE FOURTEENTH AMENDMENT TO THE

“CONSTITUTION OF -THE UNITED STATES

~L. The power which the legislature of ‘the ‘State of New Hanp-

shire has exercised in its regulation of hawkers ‘and pendters is

‘authorized by the police powers of the constitution,

Emert v. Missouri, 156 U. S S, 296. ; Ps

Baccus vy. Louisiana, 232 U. S. 334.

Singer Sewing Machine Co. . Brickelleand Alabama, 223

U.S. 304. :

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Wagner v. City of Covington, 251 U.S. 95. -

Town ‘of Green River v. Fuller Brush % €. C. A., 65 Fed.

2d, 112 (1933). oe

_ Ex parte Crowder; 171 Fed. 250. a8 one

S¥ate v. Angelo, 71 N. H. 224. .

Ntate.v.. Montgomery, 92 Me. 433.

I]. The classifications are based on reasonable distinetions.

, : ° : . e : 2 :

‘A State ‘may direct its law against what it deems the evil .

as it actually exists without covering the whole field of pos-

sible abuses, and it may do so none the less that the forbidden

act does not differ in kind from those that are allowed * * * . “

If a class is deemed to present a conspicuous example of. what”

the legislature seeks to prevent, the Féurteenth Amendment

allows it to be dealt with although otherwise and merely log-

igally not distinguishable from others not embraced in the

law.” ’’ Hall v. Geiger-Jones Co, 242 U.S. 539, 556.

See. also:

Centrak Lunber Co. ¥. South’ Dakota, 226 U.S. 157, 160.

Quong Wing v. Kirkendall, 223 U.S. oe, 62. joe

Rast v. Van Deman and Lew ix, 240 v8 342, | . >

The legislature has distinguished oy of seliing « as well

as the articles sold. The act does not. apply to ‘‘wholesalers or

jobbers selling -to dealers orily, nor to commercial agents or other

_persons selling by sample, lists, or catalogues.’’ “The courts below

held that this classification established an arbitrary exception.

Wholesalers, jobbers and. commercial agents selling by sample,

lists or catalogues make delivery of their merchandise subsequent

to their orde® whereas the hawker and peddler delivers his articles

contemporaneous With the -order. The class excepted transacts

their business with pérsous familiar- with the goods sought to: be

sold and the opportunity for fraudulent sales is much less than in

the case of direct sales to the uninformed and often gullible public.

The Jegislature has believed that mischief exists in the latter type

of cases. These distinctions are based on jogi¢ and faet and have

‘ been repeatedly sustained by the courts.

“ &

’

7. . .

In Wagner v. City of Covingtin, 251 U. 95, 103, phe court

said : ores :

“‘The distinction between, state regulation of peddlers and

‘the attempt to impose like regulations upon drummers. who

+olicit sales of goods that are to be thereafter transported in

interstate commerce, has always been Fecognizedk”’ — :

Robbins v. Shelby District, 120 U.S. 489.

Crenshaw y. Arkansas, 227 U. 8. 389, 396.

People v. DeBlaay, 137 Mich, 402, 405.

Hays v. eine. 107 Ky. 655; 55 8S. W, 425.

The legislature has further classified, in providing in section 3

that the act shall not apply to any person selling provisions, agri-

cultural: implements, fruit trees, vines, ‘shrubs, b6oks, newspapers,

pamphlets, the products of his own labor or the, labor of his fam-

ily aml the product of his own farm or the one which he. tills, the

manufacturers of furniture and ladders excepted. ’

. In State, v Vv. Montgomery, 92 Me. 433, 441, the court discussed

the question of the constitutionality of éxceptions of fruit, fruit

fuel, newspapers, books, pamphléts and agricultural products and

said : .

‘It is undoubtedly true that police regulations of this kind,

to be valid, must be uniform, and must not discriminate against

_ one class and in favor of another. * * * Is this right abridged

‘by this statute ? ** * We do not think so. If one may peddle

‘freely the products of his own labor, so may all. The products

may be unlike, but the freedom to prosecute one’s own busi-

ness and do peddleshis own products is free alike to all. So

of the other &ceptions. While it may happen that various

producers may peddle each*the products of his own labor

without license, but not of the labor of another, still we think

. this fairly answers thé requiremeyts of uniformity. The leg-

islature is the sole judge of the-extent to which the business of

peddling should be regulated, and its conclusions «te final, so

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treek, provisions, live animals, brooms, agricultural amplements, we. ,

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long as the burdens imposed do not bear unevenly —_ dit.

zens.”’ a , eo :

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es also Commonwealth v. Rearick, 26 Pa. ii Ct. 384, 396,

whbre the court held that the exception of manufacturers and pro-

ducers selling their o 7 products is constitutional.

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Peaple v, De Blaay, 137 Mieh. 402, 405, where the court held that

= xception of manufacturers, fuimers, mechgnics: or nurserymen

ing. their own products by sample or otherwi ise is constitutional,

In re D.C. Abel, 10 Idaho, O88, 292, where the court held that

the exception of farm products was constitutional.

Kansas City v. Overton, 68 Kansas, 560. 565, where the court

‘held that the exception of persons personally selling the products

of their own or leased land’ is constitutional.

"¢

Commonwealth v. Gardner, 133° Pa. St. 284; 19 Atl. 550, to the

same effect. ; - ;

People vy. Sawyer, 10@ Mich. 428, 430; excepting * mechanics and

farmers selling their own. products. * ;

McKnight v. Hodge (Wash.), 104 Pace. 504, 506, where the court

held constitutional the exception of ae gg farm products

ar@ books, periodicals and newspapers sd) °

State v. Webber, 214. Mo. 272: 113 8 S. W. 1054, where the court

‘ held constitutional the exeeption of pianos, organs, sewing ma-

chines, books, charts, maps and stationery, agricultural and horti-

cultural products.

Ex parte Thornton, 12 Fed. Rep. 538

Ex parte Crowder, 171 Fed. 250.

‘These cases and cases diseussing the police powers of the state

definitely establish the principle that the legislature has she power

to deterntine how great the evil and the extent of the remedy. .The

‘question is a practical one dependent upon experience and one

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which local experienve should largely control. It is a question of: ©

policy for the legislature. Tanner y. Little, 240 U. 8. 369.

If the legislature belieyes that. those engaged in selling merchan-

dise used in agricylture, such as agricultiral implements, fruit -

trees, vines and shrubs, should. not be regulated, it may be for either’

- or both of two reasons (1) that persons engaged in the selling of

such merchandise do not injure the public to the same'degree that

others do and-(2) that more harm would be lone to the publie and

the agricultural interests of olir state by restraining the peddlers of ,

agricultural products than would good be accomplished. It is a

matter of policy for the legislature to decide. , :

6 ,

“It is more pressed that the act, discriminates. unconstitu-

tionally against certain classes. But while there are-differ-

ences of opinion as to the degree and kind of discrimination |

permitted by the Fourteenth Amendment, it is established by -

repeated decisions that a statute aimed at what is deemed an

evil, and hitting it presumably where experience shows it to

be most felt, is not to be upset by thinking up and enumerat-

ing other instances to which it might have been applied equally

well, so far as the court can see. That is for the legislature

to judge unless the case is very clear.’’. Keokee Consolidated.

Coke Co. v. Taylor, 234 U. 8. 224, 227. .

The district court in its opinion has’ pointed out what it terms

illustrati#As of ‘the wholly unreasonable and arbitrary character

of the classifications attempted under the provisigns’’ of para- .

graph three and states that ‘‘They bear no relation whatever to

the proper object or subject matter of such legislation, namely,

-the protection of the public. They result in an arbitrary and im-

equal application of restrictions to persons in legal status similarly

cireumstanced.?" (piage 12 of the opinion). The circuit court of

appeals added more illustrations to those of the district court and

came to the same conclusion. :

In the first place, if the delivery ix made later andthe article

comes from without the state clearly this state could not regulate

the sale of a vacuum cleaner by sample, list or catalogue. Secondly,

the history of hawker and peddler legislation clearly shows that

‘one-af the mischiefs the statute purports to hit is the contempo-

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raneous sale and delivery of articles which may have been pur-

loined. The preamble of chapter 3 of the Province Laws of New

Hampshire passed May 14, 1718 states:

‘‘Whereas Confplaint is made of great Ilurt to, and the

decay of Trade occasioned. by Hawkers,. Pedlars and Petty-

Chapmen, passing ap and fro, through the Country, to vend

Goods, Wares, and Merchandizes; much of which was Pur.

loined, obtained’ by ‘Robbery ane Stealing, so that divers Men .

of Trades, Handicrafts men, and others, none of the best

fame, having lett off the’ exercise of their Trades, and Busi-

nesses, turn Hawkers, . Pedlars, and’ Petty-Chapmyen. For

Remedy: of which Mischief :3*

"If there éxists an interval of time ‘between the sale and delivery

the housewife has an opportunity to consider the matter and to °

investigate the character:and reputation of the salesman and his

company as well-as the source of the article. As we may infer

from the preamble of the 1718 law this protection to the house-

. Wife is absent when sale and dlelivery are contemporaneous. . The

' present legislation “assures the housewife that, the holder. of a

- license has the: qualifications which she eould investigate if the

delivery of the article were to be made subsequeut to the order.

The: district court states ‘‘Without a license one may peddle

provisions which would presumably include food ‘stuffs and gro-

ceries but may not: without a license sell and deliver at ‘the time

-bathroom fixtures, tooth brushes or combs.’! ( Page 11 of the

opinion) We are told that*this is an arbitrary distinetion. In the

first plage provisions are a necessity and any regulation. regarding

the right to sell them might deprive the people: in our smaller com-— »

munities of their necessities. In. the second placé peddlers of pro-

‘visions and groceries generally have a regularly established route.

Their customers can rely on them from their past experience.

They are generally’established retail merchants who, instead of

setting up a store, jrractice their trades‘by calling from doer to door

at thé invitation of their customers and thus provide a service for

the housekeeper and the public. The court may take judicial

" noti¢egf the fact that the sellers of bathroom fixtures, tooth brushes

and combs do not sell the necessities of life nor does -the general

run of dealers of such articles customarily have a long established

COC 3

trade. “A company selling these articles may put on a drive under-

._ taken by a number of high powered, unknown salesmen to comb

the state but the butcher and grocer are kniowrf'to their conimunity

and do not attempt to-put over on a susceptible public a dijve on’

: i

meats and groceries.-

The district court further a. “He may without @ Giceirse ”

* * * peddle fruit trees, vines, an@shrubs, but to peddle fir trees,

onion sets or annual plants for the garden, if not the produet of

his own farm, he must have a license.” The Supreme Court of New

Hampshire has not construed fruit trees, vines and shrubs. Con-

ceivably these exceptions and **provisions’’ might include onion

sets, tomato plants and other annual plants. Hére again: the legis-

lature has apparently decided that it would not curb agricultural

interests by restricting the sale of apple trees, ‘pear trees and. other

fruit trees, which compose one of our basic agricultural interests.

The evils, if any, existing.in the peddling of such merchandise are

out-weighed by the benefits derived from their unrestrained. sale.

Ameri¢ar Sugar Refining Co. v. Louisiana, 179 U. 8. 89, 92.

’

The courts object because a man may’ peddle wheelbarrows and.

hand sleds of his own manufacture but not a porch chair or a

ladder. The’exception of manufacturers of furniture and ladders

to the general exception that one may, peddle produgts of his own

labor has been in our statute since 1897. Presumably peddlers of

. furniture and ladders worked an inj gy on the public. . Itamay have

beer that the furniture and ladders sold by peddlers were unsafe.

_ “or that these peddlers were causing trouble in the state. At*any”

rite it seems a matter for the legislature to determine whether the.

bencfits from” regulating peddlers of furnituge’ and ladders are

greater than the detriment to the fublic if unregulated ~ 7

The courts further object that ‘One may make children’s toys

or other artiéles and sell’them without restriction but if he were to

purchase the same class of articles from a neighbor he could

not peddle them uflicensed.’’ This is arbitrary according to the

court, The distinction here is that one is not selling prddticts of -

his gwa. manufacture, of which the right to sell is ¢learly an inci-.

dent. The hawker and peddier traditionally is a middleman, as

the cases show, and’ unless he sells what hé procures elsewhere is

not a hawker and peddler. Regulation of the sale of the preduets

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of one’sgwn manufacture and growth and that of the family

would po. thawegesonecs from making their own living with their

own hands. Furthermore there is an assurance to the purchaser of

the title of the goods sold. ate

It is submitted that these classifications are based on actual

distinctions and are not unreasonable. Certainly uniformity exists

in as much.as all persons selling these products are exempt and

all persons selling other products not covered by the exemptions are.

not exempt. eee as °

—

“The Fourteenth Amendment is not_a pedagogical require-

ment of the impracticable. The equal protection of the laws

does not mean that all occapations that are called by the

same name must be treated in the same way. The power of

the State ‘may be determined by degrees of evil or exercised

in cases Where detriment is specially experienced.’ It may

do what «go oe prevent what is deemed an evil and stop

short. of those cases in which’ the harm to the few coneerned

, is thought less important than the harm to the public that

would ensue if the rule laid down were made mathematically

exact. The only question is whether we can say on our

judicial knowledge that the legislature * * * could not have

had ahy reasonable ground for believing that there were such

public considerations for the distinction made by the present

law. The deference due to the judgment of the legislature

on the matter has been emphasized again and again. Of

course, this is especially true when local conditions may affect

the answer, conditions that the legislature does but that we

eannot know.’’ Dominion Hotel v. Arizona, 249°U. S. 265,

268. ! ; ‘

The district court and the circuit court of appeals in effect have

held in this case that the legislature cannot subdivide hawkers and

peddlers into further classifications for the purpose of regulating

some ard excepting\others, They have in effect decided that the

legislature cannot edulate the peddling of so called Oriental rugs.

silks and French ae the source and quality of which*may be

doubtful, unless it includes in the same regulation farmers who

peddle their own products, the butcher and milkman going from

door to door selling their necessities and the hominy and hull. corn

15 . ¥ .

§ a. ! .

man who has manufactured his own products. It ‘is submitted

that such a conception of the law.is based neither on common sense

nor legal experience.

The courts below relied on Connolly y. Uiiion “Sewer Pipe

(u., 184 USS. 540, 559. In the Connelly case combinations

_ in restraint ‘of trade were held illegal .in an attempt by

the legislature to abolish such practices. The legislature excepted

agriculturists from the prohibition of such practices. In the

present case the legislature is not seeking to abolish haw king and

peddling but is seeking to regulate. it. In the Connolly ease the

legislature permitted farmers to pursue exactly the same practices

which others could not legally pursue. In this ease all persons in.

each classification are treated alike. A vacuum cleaner peddler

may sell his machine without a license if he manufactured it.

Farmers must be licensed if they would sell vacuum cleaners. All

persons in the same legal status and similarly citeumstanced are

treated alike.

THE PROVISION OF SECTION 11 WHICH EXEMPTS DIS.

ABLED SOLDIERS AND SAILORS AND THEIR WID.-

OWS FROM PAYING LICENSE FEES DOES NOT

VIOLATE SECTION 1 OF THE FOURTEENTiI

AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES.

This provision differs from that of State v. Shedroi, 75 Vt. 277;

Commonwealth v. Hana, 195 _ 262; Marallis v. City of Chi-

cago (June 24, 1932), 182 N. E. Rep. 394 and other similar cases

because (1) all soldiers and. callout must obtain a license and (2)

only disabled soldiers and sailors and their widows are exempt

from paying a fee. The. case of State vy. Montgomery, 92 Me.

433. 442, is-on all fours and the court in that case relied on the

distinetion between granting free licenses to disabled veterans and

requiring other veterans té pay for their licenses. Such a classi-

fication was -held. constitutional by the Maive court. This is the

trend of modern legislation on the subject.

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An Massachusetts, in the case: of Commonwealth v. Hana, 195

Mass. 262, the court intimated that an exemption of all veterans

from payment of license fees was unconstitutional. .The Massa-

chusetts legislature now exempts from payment of the fee ‘‘any

soldier or sailor resident in the commonwealth who served in the

army or navy of the United States during the world war ‘and re-

ceived an. honorable discharge or a Telease therefrom, and who is

wholly or partly disabled by reason of wounds or injury received,

or disease contracted during such service.’’ (G. L. eh. 101, s. 24. ) =

The ‘basie reason for -the distinetion between veterans and

others is shown in the dissenting opinion of the three judges in the

case of Murallis v. City of Chicago, 182 N. E. Rey.>394, in which

case the exemption from payment of license fees of all soldiers

and sailors 4regardless of disability was before the court: The-

‘Pie power to grant bounty. to former soldiers and sailors

- as a class is coeval with the organization of the government

under the present Constitution and has been continued with-

out interruption to the present time. United States y. Hall,

‘98 U.S. 343, 25 L. Ed. 180. * * * Of course, there is no re-

z_ lation betweep the service of a soldier and the business of a

peddler, but there is a relation between the duty ot the

sovereign growing out of the service of a sofdier and the grant-

ing of privileges to him which will enable him to provide for

his daily needs. That relation has been made the basis of a

great deal of legislation of this character by both federal and

state governmenits.’” . *

The dissenting opinion further justifies the classification by pointy

ing,out that many of the veterans while in the service were in the

formative peried of their lives, their work and studies were .

definitely interrupted, while thane remaining at home enjoyed

*(p. 399) : :

‘‘exceptional and unprecedented opportunities for gainful em-

ployment. - The soldiers came home handicapped by absence

from business and schools and burdened with the baneful

effects of tremendous inflation of values which set in soon

after their discharge. Under the cireumstances it seems

\ .

apparent that they constituted a distinct class quite conipetent

. to be distinguished from the rest of our citizenry in matters

of legislation—a class created by their defense of country

and the consequent deprivation of ‘opportunity which had

been open te others.”’

The reason for the second .distinction is the physical infirmity

which a disabled veteran has received while serving lis country.

State v. Montgomery, 92 Me. 433. No suelf distinction existed

inthe cases relied on by the court and‘counsel for the complainant.

The disabled veteran by reason of. service to his country is physi-

cally handicapped in the pursuit of his trade of hawking and

peddling whereas the ordinary person suffers under no such dis-

ulvantage. The extension of the effects of this (dlisability to. the

widow is based on the same polities and logic. - She has shared

equally in the effects of the disability of her husband so far as her

husband’s ability to make a living for his family is concerned.

The state of New Hampshire has provided for its disabled

veterans. They have been given bonuses (Laws of 1919, chapter

140 and Special Session 1919, chapter 1). Special legislation is

provided for the indgent (Public Laws, chapter 106). The state

pays the expenses for their decent burial (Public Laws, chapter

106. section 20). - Veterans are exempt from the payment of a

poll tax in common with other persons who by reason of age,

infirmity and poverty are unable to contribute towards the public

charges (Public Laws, chapter 60, sections 2 and 4). Those

‘holding not over five thovand dollars worth of real estate are

entitled to a property tax exemption on the first one thousand

dollars (Public Laws, chapter 60, section 26). The New Hamp-

. shire Soldiers Home is provided for the destitute (Public Laws,

chapter 106, section 19). Veterans over seventy years of age

may have a free hunting and fishing license (Public Laws, chapter

202. section 5)..

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| D. |

THE PROVISION EXEMPTING_RESIDENTS OF TIIIS:

STATE OVER THE AGE OF SEVENTY FROM PAYING

LICENSE FEES DOES NOT VIOLATE ARTICLE 4,

SECTION 2 OF, AND SECTION 1 OF, THE

FOURTEENTH AMENDMENT TO TIE CON.

STITUTION OF THE UNITED STATES.

“ The reason for this exemption is to give assistance to persoris

over the age of yeventy who are presumably handicapped in their

trade by reason of their age. The district court decided that this

exemption ‘violated section 1 of the fourteenth amendment and

section 2 of the fourth amendment to the Federal Constitution and

stated that this particular: prov ision ‘‘is seemingly of no great. prac-

tical importance as few persons of that age would be engaging in

such employment.’’ (Page 7 of opinion). . Thee opinion of the

cireuit court of appeals was to the same effect.

' The legislature has. classified residents. over the age of seventy

_ «———-~ for the purposes of poll tax exemption (Public Laws, chapter 60,

section 1) and old age assistance (Laws of 1931, chapter 165).

Persons over ggventy of course do suffer under a disability to prac-

‘¢. tice the trade 6f hawking and peddling and for that reason the

' exemption bears a relation to the purpose of the act. The chief

objection seems to be that only residents of this state over seventy

_ are exempt from payment of the license fee. The answer to this

objection fs, it is the state of New Hampshire who has to take care

of its indigent and old folks. This provision however is trivial

and if unconstitutional the court should construe it so as to “Tie

1! any citizen of any state over seventy to procure a free license. The

New Hampshire Supreme Court has so construed a similar provi

sion in Bliss’s Petition, 63 N. H. 135 where the court granted a

ie peddler’s license to a citizen of Massachusetts under a statute which

| permitted the clerk of the Supreme Court to grant a license ‘‘only

for that county in whieh said person or applicant so applying holds *

his residence *** * |” The court said (page 135): :

‘<The ae of -privileges and immunities guaranteed by.

the federal constitution (art. 4, 5-2) to the citizens of each

state, exempts them from any: higher taxes than the state

imposes upon her own citizens. The petitioner, being en-

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titled to all the privileges and imfnunities belonging to the

citizens. of the several states, is entitled, within this state, to

all the rights and privileges of our own citizens, and he may

sell, oF offer or expose for sale, here, anything which the eiti-

zes of this state can sell,.offer, or expose for sale, upon the

same terms and conditions, and subject to the same duties

and liabilities, as the permanent residents of this state.’’