V.

Haute v. Kersey, 159 Ind. 300, 64 N. E. 469; City of Leavenworth Booth, 15 Kan. 627; City of New Orleans v. Staiger, 11 La. Ann. 68; Walters v. Duke, 31 La. Ann. 668; McClellan v. Pettigrew, 44 La. Ann. 356; Browne v. Selser, 106 La. 691; Ash v. People, 11 Mich. 347; American Union Exp. Co. v. City of St. Joseph, 66 Mo. 675; Kansas City v. Richardson, 90 Mo. App. 450; City of St. Louis v. Bowler, 94 Mo. 630; State v. French, 17 Mont. 54, 30 L. R. A. 415; Magneau v. City of Fremont, 30 Neb. 843, 9 L. R. A. 786; Ex parte Robinson, 12 Nev. 263; Gatlin v. Town of Tarboro, 78 N. C. 119; State v. Powell, 100 N. C. 525; State v. Carter, 129 N. C. 560; City of Columbia v. Beasly, 20 Tenn. (1 Humph.) 232; Ex parte Williams, 31 Tex. Cr. App. 262, 20 S. W. 580, 21 L. R. A. 783; Hoefling v. City of San Antonio, 85 Tex. 228, 16 L. R. A. 608; Morrill v. State, 38 Wis. 428; State v. Willingham, 9 Wyo. 290, 52 L. R: A. 138.

106

634 Gould v. City of Atlanta, 55 Ga. 678; Lucas v. City of Macomb, 49 Ill. App. 60; City of Indianapolis v. Bieler, 138 Ind. 30; City of Saginaw V. McKnight, Circuit Judge, Mich. 32. "As said by Mr. Justice Cooley, in People v. Russell, 49 Mich. 619, 14 N. W. 568: "That the regulation of hawkers and peddlers is important, if not absolutely essential, may be taken as established by the concurring practice of civilized states. They are a class of persons who travel from place to place

among strangers, and the business may easily be made a pretense or a convenience to those whose real pur pose is theft or fraud. The requirement of a license gives opportunity for inquiry into antecedents and character, and the payment of a fee affords some evidence that the business is not a mere pretense.' This may be measurably true of transient dealers; and it is to protect the community from imposition and fraud, rather than to obtain revenue, that, in our opinion, this power was conferred. If this is so, there is no reason for an ordinance that applies only to nonresidents, as a class, and which exempts inhabitants of the city. We do not discuss the extent to which the city may go in restricting and limiting the number of said dealers, and whether tests relating to character, etc., may be applied (see Kitson v. City of Ann Arbor, 26 Mich. 327; Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845, 21 L. R. A. 580), as this ordinance does not attempt to regulate this business upon these lines. It permits any one to engage in the business of transient dealer. If by this term is meant a dealer who goes about from place to place, there is no apparent reason for thinking that such business only needs regulation when conducted by nonresidents. It seems to us that this ordinance is aimed at nonresidents, and there is room for the suspicion that it was designed for the benefit of residents and therefore open to the criticism that it is in

restraint of trade. Moreover, it borders very closely upon the line of unreasonable license fees. We think the case is within the doctrine of Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, if not of Chaddock v. Day, 75 Mich. 527, 4 L. R. A. 809."

City of St. Louis v. Consolidated Coal Co., 113 Mo. 83; Morgan v. City of Orange, 50 N. J. Law, 389; Thompson v. Camp Meeting Ass'n, 55 N. J. Law, 507; Borough of Sayre v. Phillips, 148 Pa. 482, 16 L. R. A. 49; Borough of Shamokin v. Flannigan, 156 Pa. 43.

Clements v. Town of Casper, 4 Wyo. 494. "The distinction made by the ordinance of the Town of Casper, under consideration, between agents and drummers selling exclusively by sample or otherwise to regular merchants of the town and those selling to the public generally cannot alter the situation. The Constitution of the United States having given to Congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive when ever the subjects of it are national in their character, or admit only of one uniform system or plan of regulation; and when Congress has failed to make express regulations of the commerce among the states this indicates its will that the subject shall be left free from any restrictions or impositions, and any regulation of the subject by the state is repugnant to such freedom, except in matters of local concern only, where the state by virtue of its police power, and its jurisdiction of persons and property within its limits, provides for the

security of the lives, limbs, health and comfort of persons and the protection of property; or when the state does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities; or by the passage of inspection laws seeks to secure the due quality and measure of products and commodities; or by the passage of laws regulates or restricts the sale of articles deemed injurious to the health or morals of the community; or imposes taxes upon persons residing within the state or belonging to its population, and upon avocations and employments pursued therein, not directly connected with foreign or interstate commerce, or with some business or employment exercised under authority of federal, constitutional, or statutory law; or imposes taxes upon all property within the state, mingled with and forming the great mass of property therein. But the state, in making such necessary police and revenue regulations which are permissible, cannot impose taxes upon persons passing through the state, or coming into it merely for a temporary purpose, especially if connected with interstate or foreign commerce; nor can it impose such taxes upon property imported into the state from abroad, or from another state, and not yet become part of the common mass of property therein. No discrimination can be made by any such regulations adversely to the persons or property of other states; and no regulation can be

made directly affecting interstate commerce, as such taxation or regulation would be an unauthorized interference with the power given to Congress. * The ordinance is void, as it is within the ban of the federal constitution as interpreted by the supreme court of the United States, both as an unlawful and unconstitutional interference with interstate commerce, and as an attempted discrimination adverse to nonresidents of the state. It appears to us that the license fee of $25 for each 24 hours-which undoubtedly means a day-is excessive and unreasonable, but it is unnecessary to consider that question as the ordinance is void for the reasons assigned."

But see the following case holding otherwise, on the ground that the word "transient" refers to the nature of the business and not to residence. City of Ottumwa v. Zekind, 95 Iowa, 622, 29 L. R. A. 734, distinguishing Town of Pacific Junction v. Dyer, 64 Iowa, 38.

See, also, the following cases holding that such an ordinance is void as being an interference with interstate commerce: Daniel v. Trustees of Richmond, 78 Ky. 542; Simrall v. City of Covington, 90 Ky. 444, 9 L. R. A. 556; Pullman Palace Car Co. v. State, 64 Tex. 274; Clements v. Town of Casper, 4 Wyo. 494, supra. See, also, cases cited under § 408, post.

635 Clark v. City of Titusville, 184 U. S. 329. An ordinance classifying merchants held valid. Ex parte McKenna, 126 Cal. 429. An ordinance is void which imposes a license only on merchants using trading stamps. Johnston v. City of Macon, 62 Ga. 645. An ordinance imposing a tax on draymen according to the number of horses used is valid. But see to the contrary. State v. Endom, 23 La. Ann. 663, and Cullinan v. City of New Orleans, 28 La. Ann. 102.

Parish of Orleans v. Cochran, 20 La. Ann. 373; Davis v. City of Macon, 64 Ga. 128. Not a discrimination to exempt farmers selling their own produce from the payment of a license fee. State v. Liverpool, L. & G. Ins. Co., 40 La. Ann. 463; Moore v. City of St. Paul, 61 Minn. 427; State v. Elofson, 86 Minn. 103. A classification of dairy herds on the basis of counties is void. City of St. Louis v. Sternberg, 69 Mo. 289 (Lawyers); City of Aurora v. McGannon, 138 Mo. 38; State v. French, 17 Mont. 54, 30 L. R. A. 415; City of Pittsburg v. Coyle, 165 Pa. 61 (Brokers); Texas Banking & Ins. Co. v. State, 42 Tex. 636 (Brokers); Town of Danville v. Shelton, 76 Va. 325; Stull v. De Mattos, 23 Wash. 71, 51 L. R. A. 892 (Auctioneers).

636

636 Jones v. Hilliard, 69 Ala. 300; In re Bickerstaff, 70 Cal. 35; State v. Brown, 19 Fla. 563; Whitten v. City of Covington, 43 Ga. 421; Groesch v. State, 42 Ind. 547; Mason v. Trustees of Lancaster, 67 Ky. (4 Bush) 406; Kansas City v. Flanders, 71 Mo. 281; House v. State, 41 Miss. 737; Rohrbacher v. City of Jackson, 51 Miss. 735. An ordinance requiring that an applicant for a license as saloon keeper shall have a petition signed by a majority of the male citizens over twentyone and a majority of the female citizens over eighteen is valid.

637 City of San Jose v. San Jose & S. C. R. Co., 53 Cal. 476. Whether the power "to license and regulate" occupations would include the power to tax them for revenue purposes is to be determined from the whole charter. McKinney v. City of Alton, 41 Ill. App. 508; Shuman v. City of Ft. Wayne, 127 Ind. 109, 26 N. E. 560, 11 L. R. R. 378. The power to pass ordinances "not unconstitutional with the laws of this state and necessary to carry out the objects of the corporation" implies no authority to license pawnbrok

ers.

Com. V. Turner, 55 Mass. (1 Cush.) 493; City of St. Paul v. Stoltz, 33 Minn. 233; City of St. Louis v. Laughlin, 49 Mo. 559. The rule of construction followed that where general words follow particular ones the former should be construed as applicable only to persons or things of the same general character or class. City of New York v. Second Ave. R. Co., 34 Barb. (N. Y.) 41; Appeal of City of Pittsburgh (Pa.) 16 Atl. 92; Salt Lake City v. Wagner, 2 Utah, 400.

638 In re Wan Yin, 22 Fed. 701. A right to license a laundry is included within a power given "to regulate" them. City of Washington v. Meigs, 1 MacArthur (D. C.) 53; Town of Mena v. Smith, 64 Ark. 363; City of Terre Haute v. Kersey, 159 Ind. 300, 64 N. E. 469; City of Burlington v. Bumgardner, 42 Iowa, 673. The power to regulate does not include the power to license. Town of Plaquemine v. Roth, 29 La. Ann. 261; New Iberia Trustees v. Migues, 32 La. Ann. 923; Ex parte Taylor, 58 Miss. 478; City of St. Louis v. Boatmen's Ins. & Trust Co., 47 Mo. 150; City of Nashville v. Althrop, 45 Tenn. (5

Cold.) 554; International Trading Stamp Co. v. City of Memphis, 101 Tenn. 181, 47 S. W. 136; State v. Stroud (Tenn. Ch. App.) 52 S. W. 697.

639 Roy v. Schuff, 51 La. Ann. 86, 24 So. 788; State v. American Sugar Refining Co., 51 La. Ann. 562; Swords v. Baillio, 105 La. 328; State v. Willingham, 9 Wyo. 290, 62 Pac. 797, 52 L. R. A. 198.

640 Southern Car & Foundry Co. v. State, 133 Ala. 624, 32 So. 235; State v. Tippecanoe County Com'rs, 45 Ind. 501; City of Burlington v. Putnam Ins. Co., 31 Iowa, 102; In re Martin, 62 Kan. 638, 64 Pac. 43; Mason v. City of Cumberland, 92 Md. 451, 48 Atl. 136. A municipali ty is vested with a discretionary power in regard to the amount to be charged as a license fee. Van Baalen v. People, 40 Mich. 258; Potter v. Common Council of Homer, 59 Mich. 8. An abuse of discretion may be remedied by mandamus. State v. Schoenig, 72 Minn. 528, 75 N. W. 711; Margolies v. Atlantic City, 67 N. J. Law, 82, 50 Atl. 367; City of Portland v. Schmidt, 13 Or. 17. The principle includes the exercise of discretion in fixing the amount of the license fee. Borough of New Hope v. Postal Tel. Cable Co., 202 Pa. 532, 52 Atl. 127; Van Hook V. Abb. Corp. Vol. II-2.

642

City of Selma, 70 Ala. 361, 45 Am. Rep. 85; Borough of Taylor v. Postal Tel. Cable Co., 202 Pa. 583, 52 Atl. 128; Toole's Appeal, 90 Pa. 376; Oil City v. Oil City Trust Co., 151 Pa. 454; Davis v. State, 2 Tex. App. 425; Woodall v. City of Lynchburg, 100 Va. 318, 40 S. E. 915.

641 Washington v. State, 13 Ark. 752; Bishoff v. State, 43 Fla. 67, 30 So. 808. This discretion also applies to the amount imposed. Carson v. City of Forsyth, 94 Ga. 617; Darling v. City of St. Paul, 19 Minn. 389 (Gil. 336); In re White, 43 Minn. 250.

642 Southern Exp. Co. v. City of Tuscaloosa, 132 Ala. 326, 31 So. 460; People v. Village of Crotty, 93 I11. 180; People v. Harrison, 185 III. 307; Hart v. Beauregard, 22 La. Ann. 238; Com. v. Gage, 114 Mass. 328; City of Grand Rapids v. Braudy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116. It is not unreasonable to require applicants for licenses to furnish proof of their good character and reputation. City of Mt. Clemens v. Sherbert, 122 Mich. 674, 81 N. W. 926; Sexson v. Kelley, 3 Neb. 104. Driscoll v. City of Salem, 67 N. J. Law, 113, 50 Atl. 475. An ordinance which leaves the fixing of the license to a city official is void.