In re Gilstrap

The petitioner presented his petition to this court for a writ of habeas corpus but before it was considered he interposed an amended petition and the pending writ was issued thereon. The amendment consists of allegations to the effect that petitioner had previously presented a similar petition to the superior court of Stanislaus County and that it was denied.

The amended petition sets forth that upon a complaint sworn to by S. P. Scott, inspector of the California state board of pharmacy, and filed in the justice’s court of Modesto township, county of Stanislaus, petitioner was arrested, tried, and convicted and sentenced to pay a fine of one hundred dollars, with alternative imprisonment in the county jail at the rate of one day for every dollar of said fine remaining unpaid, and the costs of said action, for the offense of misdemeanor, to wit: Carrying on and conducting, as an itinerant vender, the business of selling drugs without previously obtaining a license therefor (Stats. 1903, p. 284; Stats. 1907, p. 765; Stats. 1909, p. 419). The complaint also avers that petitioner was not then and there an ex-Union soldier or sailor of the civil war, honorably discharged from the military or marine service of the United States.

In the original brief of the petitioner, filed before the oral hearing, several grounds were urged in support of the writ, but it will not be necessary to consider all of them here, for in his reply brief, filed some time after the oral hearing, two grounds alone are relied upon:

First: Is the law or statute in controversy valid, if viewed independently from the proviso which attempts to exempt ex-Union soldiers and sailors from payment of the license fee; and

Second: If the law and statute were in all other respects valid, would this proviso render the act unconstitutional ?

The two grounds will be considered in the order of their statement.

First: A consideration of this question will be divided into two parts:

(1) Is the legislation repugnant to section 1 of the fourteenth amendment of the constitution of the United States; and (2) Is it a valid exercise of the police power of this state apart from such amendment?

(1) It is claimed by the petitioner that considered apart from the third proviso in section 2 of the act as amended (Stats. 1907, p. 765), which he asserts purports to exempt ex-Union soldiers and sailors of the civil war from the payment of the license tax, the levying thereof is void, in that it is in violation of section 1 of the fourteenth amendment of the consti

We will first examine the legislation: The original act prescribing a license tax for itinerant venders of drugs was passed in 1903. (Stats. 1903, p. 284.) Section 2 was amended in 1907 (Stats. 1907, p. 765), and section 1 in 1909 (Stats. 1909, p. 419).

Section l of the act as amended reads in part: “No person as principal or agent, shall conduct as an itinerant vender the business of selling or in any manner disposing of drugs . . . within this state, without previously obtaining a license therefor as herein provided.” The scope of this section was enlarged in 1909 by the insertion of the clause “or in any manner disposing of” between the words “selling” and “drugs.” But as the complaint charged that the petitioner did carry on and conduct as an itinerant vender the business of “selling” drugs, and not otherwise disposing of them, the change is not important here other than to show the exact state of the legislation at the time the complaint against the petitioner was filed.

Section 2 as amended in 1907 (omitting the clause relating to the exemption of soldiers and sailors) reads in part: “A license fee of one hundred dollars is hereby levied upon all such itinerant venders doing business in this state. Said tax shall be paid to the state board of pharmacy, for the use and benefit of the state of California, and shall constitute a special fund for the enforcement of this act, and of the provisions of the act or acts creating such board of pharmacy. Upon the receipt of said sum from any persons desiring to conduct such business within this state, the secretary of said board of pharmacy shall issue a license to such person to carry on such business within this state for the term of six months next ensuing; provided that nothing in this act shall be construed to prevent the collection of any tax or license that may be imposed by any county or municipal authority. ...”

The amendment of this section in 1907 relates to the following cognate particulars: (a) “The license fee” was substituted for “an annual license fee,” the effect of which is, when read in connection with change “ (e),” to impose a semiannual instead of an annual license tax; (b) the expression

Section 3 provides that “Itinerant venders under the meaning of this act shall include all persons who carry on the business above described by passing from house to house or by haranguing the people on the public streets or in public places, or use the various customary devices for attracting crowds and therewith recommending their wares and offering them for sale. ’ ’

Section 4 requires the board of pharmacy to file an annual statement with the controller of state, and section 5 prescribes the penalty for a violation of the act.

Section 6 provides that in all actions or prosecutions under this act it need not be alleged in the complaint nor proved by the prosecution that the defendant has not a license as required in this act, but the fact that he has such license may be plead as a matter of defense.

Section 7 repeals all acts or parts of acts in conflict with this act.

The definition of an itinerant vender as found in section 3 of the act, is broad enough to include hawkers and peddlers. (Standard Dictionary; Pegues v. Ray, 50 La. Ann. 574 , [ 23 South. 904 , 905]; Andrews v. White, 32 Me. 388 , 389; note to Hager v. Walker, 129 Am. St. Rep. 276 , [25 Cent. Dig. 1114-1116]; Emert v. Missouri, 156 U. S. Rep. 296 -306, [ 39 L. Ed. 430 , 5 Inters. Com. Rep. 68, 15 Sup. Ct. Rep. 367 ]; Baccus v. Louisiana, 232 U. S. 334 -338, [ 58 L. Ed. 627 , 34 Sup. Ct. Rep. 439 ]; and 21 Cyc., p. 370.)

Is such legislation violative of the fourteenth amendment of the constitution of the United States? The petitioner claims that “it is not a police regulation, but a mere trade or commercial regulation, and not within the power of the legislature to enact.”

Baccus v. Louisiana sustained a statute of the state of Louisiana, passed in 1894, prohibiting the sale of drugs by itinerant venders or peddlers, in the following language [ 232 U. S. 337 , 58 L. Ed. 627 , 34 Sup. Ct. Rep. 440 ]:

“ . . . Thus considering the case in its true aspect, the single issue to be decided is, Did the state have power, without violating the equal protection or due process of law clause of the fourteenth amendment, to forbid the sale by itinerant venders of ‘any drug, nostrum, ointment, or application of any kind intended for the treatment of disease or injury, ’ although allowing the sale of such articles by other persons? That it did have such authority is so clearly the result of a previous ruling of this court (Emert v. Missouri, 156 U. S. 296 , [ 39 L. Ed. 430 , 15 Sup. Ct. Rep. 367 ]), or at all events is so persuasively made manifest by the authorities cited, and the reasoning which sustained the ruling of the court in the case just stated, as to leave no room for controversy on the subject (pp. 306, 307). Moreover, the power which the state government possessed to classify and regulate itinerant venders or peddlers exerted in the statute under consideration is cumulatively sustained and made, if possible, more obviously lawful by the fact that the regulation in question deals with the selling by itinerant venders or peddlers of drugs or medicinal compounds, objects plainly within the power of government to regulate.”

In the opening brief of the petitioner, section 3 of article I of the constitution of this state is cited to the proposition

But it is manifest from the foregoing authorities that the levying of a license tax by the state for the purpose of regulating the business of selling drugs by itinerant venders is not repugnant to the fourteenth amendment or to the constitution of the United States as a whole.

(2) The next question is, does the legislation constitute a valid exercise of the police power of the state apart from the federal guaranties?

The constitutional limitations of the power to impose license or occupation taxes is discussed at length and many authorities are collated in a note to Hager v. Walker, 129 Am. St. Rep. 249 , [ 128 Ky. 1 , 15 L. R. A. (N. S.) 195 , 107 S. W. 254 ],) wherein an occupation tax on real estate agents was declared unconstitutional. Under the head of mercantile pursuits, the right to impose a license tax on the occupation of vending milk, meats, weapons and ammunition, tobacco and the like is supported. Upon the subject of licensing the occupation of hawkers and peddlers (paragraph 7), it is said:

“The occupation of hawkers and peddlers is one which from early times has been deemed a proper subject for special legislative control and restriction, particularly in cities. The primary purpose for regulating this occupation should be to protect the public from imposition from dishonest traders. It is probable, however, that most regulations find their impulse in the demands of established shopkeepers for protection from competition with hawkers and peddlers. So that it may be said that the purpose of regulating the occupation of peddling is to protect, on the one hand, fair traders, especially established storekeepers residing permanently in cities and towns and there paying rent and taxes for the local privilege, from being undersold by itinerant persons, and, on the other hand, to guard the public from fraud and imposition not infrequently practiced by such traders who have no known residence or responsibility.” (State v. Cederaski, 80 Conn. 478 , [ 69 Atl. 19 ]; State v. Looney, 214 Mo. 216 , [ 29 L. R. A.

(N. S.) 412 , 97 S. W. 934 , 99 S. W. 1165 ]; Saulsbury v. State, 43 Tex. Cr. 90, [ 96 Am. St. Rep. 837 , 63 S. W. 568 ].)

“ . . . That persons who desire to peddle may be required to obtain a license and pay a fee therefor, or may be required to pay a tax for the privilege of following their occupation, is attested by numerous recent decisions. . . . Such regulation and taxation are valid, unless made partial, unreasonable, oppressive, or discriminatory. . . . There is no doubt, as the authorities in the preceding paragraph all recognize, that hawkers and peddlers may be placed in a class by themselves for license purposes.” ( 129 Am. St. Rep. 277 . See 25 Cent. Dig., pp. 1113-1128; 21 Cyc. 364; and 15 Am. & Eng. Ency. of Law, pp. 290-303.)

It is clear that the license tax is a general law, enforceable in every part of the state, regulating “the business of selling or in any manner disposing of drugs . . . within this state” by itinerant venders, as that term is defined in section 3 of the act. That it is a general law of the state is shown by the language “within this state” in section 1 and “itinerant venders doing business in this state” in section 2 of the act; that the license tax must be paid to the state board of pharmacy “for the use and benefit of the state of California”; that it shall constitute a special fund for the enforcement of this act, and of the provisions of the act or acts creating such board of pharmacy; and that an annual statement is required to be filed by such board with the controller of the state. The charge, it is to be noted, was brought by an inspector of the state board of pharmacy.

On the subject of the police power, it was said by Mr. Justice Sloss in County of Plumas v. Wheeler, 149 Cal. 762 , [ 87 Pac. 910 ], which declares constitutional a county ordinance fixing a license fee on the business of raising, herding, grazing, and pasturing sheep and lambs within the county:

“The principles affecting the right of legislative bodies in the exercise of what is known as the ‘police power,’ to place restrictions upon the conduct of lawful pursuits and occupations, are well settled, although there is often great difficulty in applying these principles to a given state of facts. It is within the legislative discretion to place such restrictions upon the use of any property or the conduct of any business as may be reasonably necessary for the public safety, comfort, or health. ‘The police power, the power to make laws to se

cure the comfort, convenience, peace, and health, of the community, is an extensive one and in its exercise a very wide discretion as to what is needful or proper for the purpose is necessarily committed to the legislative body in which the power to make such laws is vested.’ (Ex parte Whitwell, 98 Cal. 73 [ 35 Am. St. Rep. 152 , 19 L. R. A. 727 , 32 Pac. 879 ].) ‘Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.’ (Commonwealth v. Alger, 7 Cush. (Mass.) 53 ). . . . The manner and extent of such regulation are primarily legislative questions, and the courts will not'interfere unless it clearly appears that the legislature had, under the guise of regulation, imposed an arbitrary or unreasonable burden upon the use of property or the pursuit of an occupation. But the legislative determination is not conclusive.”

We think that the legislation is well within the police power of the state. The subject matter is one “which from early times has been deemed a proper subject for special legislative control and restriction.” (Hager v. Walker, 128 Ky. 1 , [ 129 Am. St. Rep. 249 , 15 L. R. A. (N. S.) 195 , 107 S. W. 254 ].) The amount of the license tax cannot be said to be “oppressive or discriminatory.” (County of Plumas v. Wheeler, 149 Cal. 763 , [ 87 Pac. 909 ]; In re Miller, 13 Cal. App. 567 , [ 110 Pac. 139 ].) The law applies uniformly upon the whole of a single class of clearly defined individuals, and the classification is founded upon a natural, intrinsic and constitutional distinction. (Ex parte Koser, 60 Cal. 177 ; Abeel v. Clark, 84 Cal. 226 , [ 24 Pac. 383 ]; Cody v. Murphey, 89 Cal. 522 , [ 26 Pac. 1081 ]; Foster v. Police Commissioners, 102 Cal. 483 , [ 41 Am. St. Rep. 194 , 37 Pac. 763 ]; People v. Central Pac. R. R. Co., 105 Cal. 576 [ 38 Pac. 905 ]; Murphy v. Pacific Bank, 119 Cal. 334 , [ 51 Pac. 317 ]; Rode v. Siebe, 119 Cal. 518 , [ 39 L. R. A. 342 , 51 Pac. 869 ]; Vail v. San Diego, 126 Cal. 35 , [ 58 Pac. 392 ]; Murphy v. Pacific Bank, 130 Cal. 542 , [ 62 Pac. 1059 ]; Ruperich v. Baehr, 142 Cal. 190 , [ 74 Pac. 782 ]; Kaiser Land and Fruit Co. v. Curry, 155 Cal. 638 , [ 103 Pac. 341 ] ; Lewis v. Curry, 156 Cal. 93 , [ 103 Pac. 493 ]; and Matter of Yun Quong, 159 Cal. 508 , [Ann. Cas. 1912C, 969, 114 Pac. 835 ].)

Second: If the law is in all other respects valid, does the third proviso of section 2 of the act as amended in 1907 (Stats. 1907, p. 765), relating to the exemption of ex-Union soldiers and sailors, render the act unconstitutional?

The grounds urged by the petitioner against the constitutionality of the third proviso are thus stated in the final brief:

“1. It contravenes section one of the fourteenth amendment of the constitution of the United States, in this:

“(a) It denies to persons within the jurisdiction of the United States the equal protection of the law.

“2. Said statute is inhibited by section eleven (11) of article one (1) of the constitution of California in this:

“ (a) It is of a general nature and does not have uniform operation.

“3. It is repugnant to section twenty-one (21) of article one (1) of the constitution of California, in this:

“ (a) It grants to a certain class of citizens privileges and immunities which, upon the same terms, are not granted to all citizens.”

The act creating the exemptions was adopted by the legislature in 1905 (Stats. 1905, p. 307), and provides:

“Section 1. That on and after the passage of this act all ex-Union soldiers and sailors, honorably discharged from the military or marine service of the United States, shall be permitted to vend, hawk and peddle goods, wares, fruits or merchandise not prohibited by law, in any county, town, village, incorporated city or municipality within this state without a license; provided, said soldier or sailor is engaged in the vending, hawking and peddling of the goods, wares, fruits or merchandise for himself only.

“Section 2. Upon the presentation of his certificate of discharge to the license collector of any county, town, village, incorporated city or municipality in this state, and showing proofs of his identity as the person named in his certificate of honorable discharge, the license collector shall issue to said ex-Union soldier or sailor a license, but such license shall be free, and said license collector shall not collect or demand for the county, town, village, incorporated city or municipality

any fee therefor; provided that nothing in this act shall authorize said soldiers or sailors to sell intoxicating liquors.”

The third proviso reads: “Provided, however, that nothing in this act shall be held to repeal or modify the provisions of an act approved March 20, 1905, ‘An act permitting all ex-Union soldiers and sailors of the civil war, honorably discharged from military or marine service of the United States, the right to vend, hawk and peddle goods, wares, fruits or merchandise not prohibited by law, in any county, town or village, incorporated city or municipality in the state of California, without paying a license. ’ ”

The language of the complaint regarding the exemptions is as follows: “ . . . and that the said Charles Gilstrap was not then and there an ex-Union soldier or sailor of the civil war, honorably discharged from military or marine service of the United States, as defined in an act entitled ‘An act permitting all ex-Union soldiers and sailors of the civil war, honorably discharged from the military or marine service of the United States, the right to vend, hawk and peddle goods, wares, fruits or merchandise not prohibited by law, in any county, town or village, incorporated city or municipality in the state of California, without paying a license, ’ approved March 21, 1907.”

The petitioner admitted on the trial in the justice’s court that he was not a discharged ex-Union soldier or sailor of the United States.

In our opinion it is not necessary to a decision on the merits of the pending writ to determine the constitutionality of the exemption act for the reason that the legislature did not intend that it should have any application to a license tax imposed by the state.

The legislation in which the proviso is found, it has been shown, is a law enforceable throughout the state, and the language of the proviso plainly indicates that the exemption applies only to a license tax of ‘ ‘ any county, town or village, incorporated city or municipality in the state of California. ’ ’

The office of a proviso is described in Minis v. United States, 40 U. S. (15 Pet.) 445, where it is said: “The office of a proviso, generally, is, either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as

The Exemption Act of 1905 (Stats. 1905, p. 307) provides that all ex-Union soldiers and sailors honorably discharged from the military or marine service of the United States shall be permitted to vend, hawk and peddle goods “in any county, town or village, incorporated city or municipality within this state” without a license. The third proviso is to the effect that the legislation imposing the license tax shall not be held to repeal or modify the Exemption Act as it affects the legislative authority of counties, towns, villages, incorporated cities or municipalities within the state. In other words, the proviso is merely a legislative disclaimer of any intention to interfere in any sense with the Exemption Act of 1905. But this is not the equivalent of extending its operation and it cannot, therefore, be held to apply to persons required to pay the state license tax.'

Upon the subject of exemptions in a license tax see 32 Cent. Dig., p. 2567 and 25 Cyc. 621.

It is to be noted that the Exemption Act of 1905 is only referred to in the amending statute of 1907. The subject of exemptions forms no part of the original statute of 1903, nor is it referred to in the amendment of 1909. Nor again does the Exemption Act directly or indirectly refer to the act of 1903. These omissions are significant since the acts of 1903, 1907 and 1909 all relate, as we have seen, to a general law of the state as distinguished from a local law or ordinance. The complaint expressly refers to the license statute of 1907.

It was clearly the intention of the legislature to limit the application of the Exemption Act of 1905 and the proviso of 1907 to local laws or ordinances. They have no other scope or purpose.

The conclusion that the proviso is not aimed at the state license tax obviates the necessity of deciding whether ex-Union soldiers and sailors who, “as principal or agent, shall conduct as an itinerant vender the business of selling or in any manner disposing of drugs, nostrums, ointments or any appliances for the treatment of disease ...” belong in the category fixed by the Exemption Act, which declares that ex-Union soldiers and sailors “shall be permitted to vend, hawk and peddle goods, wares, fruits or merchandise . . . ,” provided they so vend, hawk and peddle for themselves only.

Writ discharged and petitioner remanded.

Sloss, J., and Lorigan, J., concurred.

I see nothing in this case requiring elaborate statement, prolonged discussion, or the citation of many authorities. Assuming that the law in controversy is an exercise of the police power and not of the power of taxation, the questions presented have long been settled by numerous decisions and are comparatively simple and easy of solution. Upon that hypothesis, the decisions in Baccus v. Louisiana, 232 U. S. 337 , [ 58 L. Ed. 627 , 34 Sup. Ct. Rep. 439 ], Ex parte Campbell, 74 Cal. 20 , [ 5 Am. St. Rep. 418 , 15 Pac. 318 ], and Ex parte Coombs, 169 Cal. 484 , [ 147 Pac. 131 ], establish the proposition that a law regulating a business which, if unrestricted, may be injurious to the public health or safety, violates neither the state nor the United States constitution.

If, however, the act is not a police regulation but an act imposing a tax for revenue, it might, perhaps, be plausibly urged that a law imposing an occupation tax solely upon itinerant drug peddlers, leaving all other peddlers and all other mercantile pursuits free from such taxes, would be an improper discrimination against one class of peddlers, on the ground that there is no just basis for the classification. The petitioner argues that it is a revenue tax and that it arbitrarily places an unequal burden upon a class. Justice Lawlor has not discussed this objection. The terms of the act, and of the Pharmacist Act to which it refers, satisfactorily show that it vras enacted for the purpose of regulation and not for revenue. The charge is denominated “a license fee.”

The objection growing out of the supposed exemption of ex-Union soldiers and sailors has no foundation in fact. As Justice Lawlor shows, there is no exemption from the state license fee. The act of 1905 merely exempts peddlers of all kinds of goods who are honorably discharged ex-Union soldiers and sailors from paying local license fees imposed by county, city, or town ordinances. It has no application to a state license.

I believe that the law in question is valid and I concur in the judgment that the petitioner be remanded.

Sloss, J., and Melvin, J., concurred.

I concur in the judgment, and generally in the views expressed in the opinion of Justice Lawlor. That the act involved was intended solely as a regulatory measure designed to regulate the business of