State v. Rayantis

Collins, J. Defendant was convicted in the municipal court of the city of Minneapolis of a violation of a section of one of the ordinances providing “that no person shall erect, build, set up, keep, or maintain any house, store, shop, or other building or structure; or leave, deposit, or place any boxes, merchandise, * * * trucks, carts, 129 wagons, sbeds, or carriages upon or in any street * * * in said city.” It was admitted that at the time of the alleged offense defendant was a duly-licensed “push-cart peddler,” and from the evidence for the prosecution it appears that he was arrested by a policeman solely because he had remained with his cart, on the platform of which fruit was exposed for sale, standing close up to the curb of the sidewalk for a full half hour,- — without making any sales, — at a certain point upon Nicollet avenue, one of the busiest thoroughfares in the city. It was not claimed that defendant’s cart interfered with or obstructed the travel, although, of course, no other vehicle could occupy the same space in the street during the half hour. This was the extent of the offense as shown by the testimony. The conviction cannot be sustained upon such a showing. The ordinance in question does not cover such a case, nor was there an intent on the part of the city council that it should! It was solely designed to prevent the incumbering of streets with structures or articles which would necessarily impede and obstruct, in a somewhat permanent manner, the proper use of the streets by the traveling public. It was never intended to cover or include the enumerated vehicles, or any other, while they were in use, whether in motion or stopped temporarily for the convenience of the owner or occupant. If so, there could be no distinction made between the fruit peddler who pushes his cart up to the walk that he may find customers, and the citizen who stops his carriage at the curb that he may gossip with a neighbor. Both would be within the inhibition, and liable to arrest. The ordinance under which defendant obtained his license contains no provisions defining or regulating the manner in which a push-cart peddler shall conduct his business. He is therefore under no specified restrictions, and is authorized to peddle from place to place within the city limits, and to carry with him upon his cart articles of merchandise for sale. He is not required to move continually, but may stop for the purpose of making, or endeavoring to nnake, sales. If there is anything offensive in the business itself, lor if those engaged in it so conduct themselves as to obstruct the ¡streets, or become nuisances, the city council, exercising the same power which it exercised when passing an ordinance compelling 130 these street vendors to first obtain a license, can easily and successfully regulate and control their manner of doing business. It was under such an ordinance that the prosecution considered in Commonwealth v. Fenton, 139 Mass. 195, (29 N. E. Rep. 653,) cited by respondent’s counsel, was had. (Opinion published 56 IT. W. Rep. 580.) Because defendant was not guilty of an offense contemplated and covered by the ordinance under which he was convicted, the judgment is reversed.