Allport v. Murphy

Ostrander, J. {after stating the facts). I do not find in the record support for the claim that the warrant was refused and the case presented by collusion of the justice and the city attorney or that the person sought to [490] be charged in the warrant which was applied for could, or would, if greater privileges had been extended to him, have presented in the return to the order to show cause any other or different reasons for refusing the warrant. There is precise precedent for the practice pursued, in Chaddock v. Day, 75 Mich. 527 (4 L. R. A. 809). Counsel seem to agree that the question is presented whether Archibald Bryant is a hawker and peddler within the meaning of the ordinance. It is averred in the answer to the order to show cause, and must be assumed to be true, that the conduct complained about was incident to the general retail business carried on by Bryant at his store. The charter of the city empowers the common council to enact ordinances, etc.,— “ To license hucksters, peddlers * * * in the business of hawking and peddling, and to regulate and license the sale by peddling ( directly or by canvassing for subscription ) of goods, wares, merchandise, refreshments or any kind of property or thing, by persons going about from place to place in the city for that purpose, or from any stand, cart, vehicle or other device in the streets, * * * open places or spaces, stores, offices and business blocks and places, public grounds or buildings in said city.” Act No. 469, Local Acts 1895, tit. 7, § 24, subd. 8. The popular meaning of the words hawker and peddler and, perhaps, the meaning indicated by the derivation of the words, involves ideas both of the carrying of goods for sale and of an itinerant vender. Expressions of this conception of the meaning of the words are found in legislation and in judicial utterance. See 2 Rawle’s Bouvier, p. 642; Com. v. Ober, 12 Cush. (Mass.) 493; Village of Stamford v. Fisher, 140 N. Y. 187; Emmons v. City of Lewiston, 132 Ill. 380 (8 L. R. A. 328); Rex v.McKnight, 10 B. & C. 734; State v. Hogdon, 41 Vt. 139; City of Chicago v. Bartee, 100 Ill. 57; People v. Baker, 115 Mich. 199. Our own statute, after describing those who must obtain a license (2 Comp. Laws, section 5324) excepts certain persons whose acts may bring them within the class [491] (section 5330), and the excepted class has been recently enlarged (Act No. 120, Public Acts 1905; Act No. 225, Public Acts 1907). Whatever meaning may have been given to the words, anciently or in later times, it will be observed that the charter powers above recited extend to licensing and regulating the sale of any kind of property by persons going about from place to place in the city for that purpose. It may be admitted that the common council of Muskegon has not the power to prescribe new definitions for terms which already have legal definitions. It has not attempted to do so. It has, for the purpose of the exercise of a power to regulate sales made from house to house, provided (section 6): “Any person or persons who shall go about from house to house or place to place and sell or offer to sell any article of trade or commerce to be delivered then or in the future shall be deemed to be a hawker and peddler within the meaning of this ordinance,” which is entitled, generally, as is above stated. It is inaccurate, therefore, to say that the case turns upon the question of who is a huckster, or hawker, or peddler, as the words have been judicially defined, and decisions which rest upon a judicial construction of statutes or of ordinances in which the words are employed without qualification are not necessarily controlling or helpful. The particular ordinance has been considered by this court in two cases,—City of Muskegon v. Zeeryp, 134 Mich. 181; City of Muskegon v. Hanes, 149 Mich. 460, —in the first of which it was held that the charter powers were sufficient to sustain this section of the ordinance and in both that it was violated by acts similar in character to those stated in the complaint in this case. See, also, City of Alma v. Clow, 146 Mich. 443. If these cases are not decisive of the case at bar, it is because the person who is here sought to be charged with a violation of the ordinance is a local, retail merchant, who keeps a store and who also does what the ordinance, in terms, prohibits. If section 6 of the ordinance does not apply to resident [492] storekeepers, it is invalid upon the authority of City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32; Brooks v. Mangan, 86 Mich. 576. See James v. Sweet, 125 Mich. 132, 137; Chaddock v. Day, 75 Mich. 527 (4 L. R. A. 809). In terms it applies to residents and nonresidents alike, to storekeepers and those not storekeepers. The right of the city to exercise the power with respect to others than resident merchants is not denied. It is not claimed that the fee exacted is unreasonable. The constitutional questions raised by the return to the order to show cause are not argued in the brief. To sustain the order of the court below, we must read into the section the words, or their equivalent in meaning, “except resident merchants who have an established place of business.” Aside from rendering the section invalid, such an interpolation of words would be, in my opinion, bald judicial legislation. The determination of the court below is reversed, with direction to grant the writ of mandamus. No costs are awarded. Hooker, Moore, Carpenter, and McAlvay, JJ., concurred.