
    The Great Atlantic & Pacific Tea Company v. The Village of Tippecanoe.
    
      Municipal council cannot impose license — Upon one who only solicits orders, when — Interpretation of Section 3673, General Code— In view of guaranties of Bill of Rights.
    
    In view of the guaranties of the Bill, of Rights, Section 3673 of the General Code, cannot be so interpreted as to authorize a municipal council to impose a license fee upon merchants who do not sell upon the public streets or places, but only solicit orders and negotiate future sales at the residences of their customers.
    (No. 12633 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Miami county.
    Plaintiff brought suit in the court of common pleas to recover from the defendant license fees which it had paid to the village pursuant to a demand of its" officials, the payment being made under protest. It alleged that it had, for many years, conducted in the city of Dayton a large retail store for the sale of groceries and laundry supplies of various kinds, including many articles not made nor grown by it. It had extended its business to the incorporated village of Tippecanoe, where it has been supplying goods from its store to the residents .of the village in the following manner and not otherwise:
    Every two weeks an employe of said company, while delivering goods previously ordered by its customers in said village, solicits and takes for future delivery such orders as he can secure from said customers. At the time of taking such orders he enters the same upon an order book, which he carries for that purpose, and the orders so taken are mailed or delivered by him to the Dayton store, where they are accepted. At the expiration of two weeks from the time the orders are taken the goods so ordered are put up in separate packages at the Dayton store, and each package is marked with the name and address of the customer to whom it is to be delivered. These packages are then delivered by the same or another employe of said company to the persons who ordered the articles they contain. In delivering said packages the said employe is in the habit of using a horse and wagon, but in traversing the streets of said village attracts no attention by means of any outcry or by the blowing of horns, ringing of bells or any other means or device. The said employe does not offer for sale, sell or bargain to sell any of the goods that he has with him in said village, nor does he deliver to any person any goods not previously ordered of said company in the manner aforesaid, but in each case an interval of two weeks elapses between the soliciting or taking of any order and the delivery of the goods so ordered. In this manner the said orders are solicited, the said goods delivered and the price thereof collected by said employe at the time of delivery unless credit is extended, and these acts take place upon the private premises of the customers of said company and not upon any street, alley or public place of said village. The said employe makes no sales or deliveries or takes no orders upon his own account and has during the years aforesaid conducted the business of said company in said village in no other manner than that stated.
    December 2, 1907, the village council passed an ordinance entitled: “An ordinance to license hawkers, peddlers and hucksters.” The first section of the ordinance provides that “it shall be unlawful for any hawker, peddler or huckster to sell or canvass for the sale of any article,” etc., “without first applying for and procuring a license.” Its second section provides that “A hawker, peddler or huckster who desires to sell any article, goods, wares or merchandise within the corporate limits of the village aforesaid, or who desires to canvass for the sale of such article,” etc., “within the corporate limits, shall apply to the mayor for a license,” which shall be issued upon payment of the prescribed fee. The fourth section provides that any person violating the ordinance shall on conviction thereof be fined in a sum not less than 50 cents nor more than $25.00 per day and costs of suit, and each day such person or persons shall be engaged in selling or canvassing, as aforesaid, shall be deemed and held a separate offense.
    The mayor and marshal of the village knowing the manner in which the plaintiff's business was conducted, and acting upon authority assumed to be afforded by said ordinance demanded of the plaintiff and its employes a license fee of two dollars a day so long as such business should be conducted in said village and threatened said employes with arrest unless such fees should be paid.
    The plaintiff denying that such license fee upon its business was authorized by said ordinance nevertheless paid the same under protest to avert the threatened arrest of its employes and the interruption of its business, giving notice at the time that it would bring suit for the recovery thereof, and so paid under like demand and protest until its payments amounted to $104, for which it prayed judgment.
    To this petition the village demurred generally. The demurrer was sustained and the petition dismissed. In the circuit court that judgment was affirmed.
    
      Mr. Stewart L. Tatum, for plaintiff in error.
    The ordinance is one to license peddlers. The soliciting of orders from customers to whom a grocer’s clerk is making his regular deliveries is not peddling.
    We will not here dispute the authority of the village to license peddlers. Section 1536-100 (par. 3), Revised Statutes; Section 1536-327, Revised Statutes.
    The title of the ordinance clearly indicates that the ordinance was an exercise of the foregoing powers and of those only, the title being as follows: “An ordinance to license hawkers, peddlers and hucksters.”
    The village solicitor contends, however, that, notwithstanding the title, the ordinance constitutes a proper exercise of the powers of another statute, namely, that authorizing the licensing of persons who solicit orders; such persons being commonly called, solicitors, canvassers, drummers, or sample sellers. Section 1536-328, Revised Statutes.
    
      The ordinance itself is limited in express terms to hawkers, peddlers and hucksters.
    There is nothing in the ordinance to bring it within the statute authorizing municipalities to license persons who solicit orders. In the first place that statute provides that the municipality may license “all persons” who solicit orders. The ordinance confines itself to hawkers, peddlers and hucksters.
    Moreover, even if the ordinance were an attempt to exercise the powers of this statute, it would be void because not consistent therewith. Thompson v. Mt. Vernon, 11 Ohio St., 688; Canton v. Nist, 9 Ohio St., 439; State v. Wells, 69 N. H., 424.
    For the foregoing reasons we think it clear that the ordinance is merely one to license peddlers.
    The best definition of a peddler which has come to our attention is in St. Paul v. Briggs, 85 Minn., 290.
    None of the marks of a peddler is present in our case.
    The cases are many and flat upon this proposition that such a person is hot a peddler. We cite a few of them and call the court’s attention particularly to the six first mentioned below:
    
      Hewson v. Englewood, 55 N. J. L., 522; Stamford v. Fisher, 140 N. Y., 187; Commonwealth v. Eichenberg, 140 Pa. St., 158; Kennedy v. People, 9 Col. App., 494, 49 Pac. Rep., 373; Olney v. Todd, 47 Ill. App., 440; Elgin v. Picard, 24 Ill. App., 340; Twining v. Elgin, 38 Ill. App., 356; Emmons v. Lewistown, 132 Ill., 380; Cerro Gordon v. Rawlings, 135 Ill., 36; Ballou v. State, 87 Ala., 144, 6 So. Rep., 393; Davenport v. Rice, 75 Ia., 77; Stuart v. Cunningham, 88 Ia., 191; Kansas City v. Collins, 34 Kans., 434, 8 Pac. Rep., 865; Commonwealth v. Farnum, 114 Mass., 267; Ex parte Taylor, 58 Miss., 478; State v. Hoffman, 50 Mo. App., 585; Radebaugh v. Plain City, 10 O. D. Re., 612, 28 W. L. B., 107; Mays v. Cincinnati, 1 Ohio St., 272.
    No brief was submitted for defendant in error.
   Shauck, J.

The title of this ordinance suggests that it was passed in the exercise of authority supposed to be conferred upon the municipality by Section 3670, General Code, which authorizes the municipality to regulate and license peddlers, and Section 3672 which confers authority to license “hawkers, peddlers,” etc., and Section 3673, which assumes to confer authority “To license transient dealers, persons who temporarily open stores or places for the sale of goods, wares or merchandise, and each person who, on the streets, or traveling from place to place about such municipality, sells, bargains to sell, or solicits orders for goods, wares or merchandise by retail.” By its title the ordinance applies only to hawkers, peddlers and hucksters. In essential respects the provisions of the ordinance are limited to the subjects of its title, for the first section provides only that it shall be “unlawful for any hawker, peddler or huckster to sell or canvass,” etc.; and the second section provides that “A hawker, peddler or huckster who desires to sell any article, goods, wares or merchandise within the corporate limits of the aforesaid village of Tippecanoe, or who desires to canvass for the sale of such article, goods, wares or merchandise within the corporate limits of said village, shall apply to the mayor for a license,” etc. Notwithstanding these terms limiting the operation of the ordinance to hawkers, peddlers and hucksters, there is an apparent attempt to apply to them provisions of Section 3673 of the statute, which so far as the statute is concerned do not seem to be limited to persons following those peculiar vocations. The averments of the petition, which the demurrer admits to be true, exhibit the course and conduct of the plaintiff’s business and make it appear to be essentially different from the conduct of business by any of the three classes of persons named in the ordinance. It has a fixed place from which it does business; it does not carry about the merchandise which it offers for sale; it does not sell at the time it offers for sale, but enters into contracts for future sales; it does not carry on negotiations or any part of its business upon the streets, highways or public places, but at the residences of its customers. That these features broadly and substantially distinguish its business from that carried on by hawkers, peddlers and hucksters is made clear by the dictionaries and numerous cases cited in the briefs. The apparent attempt of the village council to exercise the power assumed to be conferred by Section 3673 of the statute to require license from those who at the residences of their customers bargain to sell or solicit orders for goods, wares, or merchandise by retail, and the attempt of its officers to enforce the ordinance with that interpretation seems to require that to the interpretation of the section there be applied a limitation which the constitution imposes. The concession that the business of the plaintiff is within the terms of this section of the statute will not aid the defendant, for if so interpreted the statute very plainly transcends the limits prescribed by the constitution. So much has been said respecting the guaranties of such constitutional provisions as are contained in our Bill of Rights demonstrating that the guaranteed right to the enjoyment and use of property includes the right to make contracts generally, that the cases cited in the briefs show that it has become common knowledge that the general assembly may not by the discriminating imposition of burdens participate in the rivalries of business, except to the extent that may be authorized by consideration of the public weal. It is not necessary to enlarge upon the subject since the first proposition of the syllabus in Marmet v. The State, 45 Ohio St., 63, is an authoritative and exclusive definition of the subjects upon which a license fee may be imposed: “The general assembly has power (except as limited by section 18 of the schedule to the constitution) to regulate occupations by license, and to compel, by imposition of a fine, payment of a reasonable fee, where a special benefit is conferred by the public upon those who follow an occupation, or where the occupation imposes special burdens on the public, or where it is injurious to or dangerous to the public.” It is true that the court was there considering a statute to exact the fee by the direct act of the general assembly, but the point is wholly unimportant since it could not confer upon municipalities a power which it does not itself possess. It may not any more authorize the municipal council to lay an imposition upon the ordinary use of the streets and the private residences of the city than it could provide for such imposition by an act of general operation. We might regret this conclusion if we were informed that in the village of Tippecanoe those who sell merchandise at retail outnumber those who buy from them. Not being so informed, we are serene in the belief that obedience to the requirements of the constitution will in this instance, as it usually does, result in the greatest good to the greatest number; nor need we vex ourselves to inquire why at a time when so much is done by legislation and adjudication to prevent the stifling of competition by private contracts, an attempt should be made to stifle it by legislation.

Judgment reversed and demurrer overruled.

Spear, C. J., Davis, Price, Johnson and Donahue, JJ., concur.  