State v. Messolongitis

CANTY, J. Under an ordinance of the city of Minneapolis, said appellant, [169] Messolongitis, was convicted of placing and exposing for sale goods, wares and merchandise on the sidewalk in that city. He was fined therefor the sum of $5, in default of payment thereof to be imprisoned in the workhouse of said city for the period of five days; and, from an order denying a new trial, he appeals to this court. It was admitted on the trial that he was at the time a duly-licensed foot peddler, and he contends that, on the evidence, there was no ordinance under which he could be convicted of the alleged charge. The evidence tended to prove that he placed upon the sidewalk of a main business street of the city two baskets of fruit, and remained there 2f hours, soliciting customers, when he was arrested. The ordinance under which he was arrested reads as follows: “Sec. 7. No person shall place or suffer to be placed upon or over any sidewalk in the city of Minneapolis, or suspend over any street in said city, goods, wares or merchandise for sale, show or otherwise, beyond the front line of the lot where such goods may be placed, suspended or exposed.” It is contended that this ordinance was passed to prohibit the owners of the abutting property from encroaching upon the sidewalk, and exposing thereon for sale goods which they may have in their places of business, and that it does not apply to street peddlers and hawkers who have no interest in the adjoining property, but who may have placed their goods upon the sidewalk, and exposed them for sale. The section certainly does apply to such owners of abutting property, but we see no reason why it does not also apply to a street vendor who has no interest in such abutting property. It would be a peculiar law that would permit such a street vendor to expose for sale his goods on the sidewalk, and at the same time prohibit the abutting owner who owns the fee of the street from doing likewise. The case of State v. Rayantis, 55 Minn. 126, 56 N. W. 586, is cited as authority for the proposition that the placing of goods on the sidewalk for sale in this manner is authorized by a peddler’s license. That case does not so hold. It simply holds that permitting a push [170] cart to remain in the street for a considerable length of time while the peddler exposes' his goods for sale is not in violation of section 1 of the ordinance in question, which section simply prohibits the storing of goods, boxes and carriages on the street. We cannot hold that the license of a foot peddler authorizes him to expose for sale his goods on the sidewalk for an unreasonable length of time. Such a license does not authorize him to preempt a portion of the sidewalk, and use it as a market place or a fruit stand. He may, under such license, go from house to house, and from place to place, in search of customers; and, if there is no ordinance to the contrary, he may solicit customers on the street; but he cannot stop an unreasonable length of time for that purpose, or for the purpose of making a sale. The evidence shows that he was merely evading the provisions of section 7, and was doing what his license as a foot peddler did not authorize him to do. Except as hereinafter stated, the case of State v. Santrizos is similar to the case of State v. Messolongitis, filed herewith. No written complaint was filed in the Santrizos case, but the clerk of the court entered upon his records a statement of the offense with which the defendant was charged. The defendant objected to such statement, and first asked that the court order a written complaint to be filed, which request the court refused to grant, and thereafter he moved that the action be dismissed because no such complaint had been filed, which motion was denied. We are of the opinion that the court did not err in either ruling. The municipal court act2 provides as follows: “In cases where alleged offenders shall be in custody, and brought before the court or the clerk, without process, the clerk shall enter upon the records of the court a brief statement of the offense with which the defendant is charged, which shall stand in place of a complaint, unless the court shall direct a formal complaint to be made.” 4 This leaves it in the discretion of the court to order or refuse to order the making of a formal complaint. The statement entered [171] upon the minutes sufficiently stated the offense charged, and is sufficient under the constitution. Appellant also contends that the evidence is not sufficient in this case to show that he violated said section 7. The evidence tends to prove that he stopped upon the sidewalk for 20 minutes, and refused to move on when ordered to do.so by a special policeman, and made one sale during that time. We are of the opinion that the court was warranted in finding that he was not in fact peddling, but was merely attempting to evade the provisions of said section 7, and was using the sidewalk as a fruit stand or a market place. He was entitled to stop a reasonable length of time to make a sale when he found a customer, or in good faith supposed that he had found one; but he was not authorized to lay his basket down on the sidewalk, and wait for customers to come along. This disposes of all the questions raised having any merit, and the order denying a new trial is affirmed. Footnotes [2] Sp. Laws 1889, e. 34, § 17 (page 609).