
    Ex parte HOGG.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. Hawkers and Peddlebs (§ 3) — Who is a “Hawker” ok “Peddler.”
    A “peddler” or “hawker” is a small retail dealer, who carries his merchandise with him, traveling from place to place, or from house to house, exposing his or his principal’s goods for sale; it being immaterial whether the goods are bartered or sold, or whether the sale is conditional or on the installment plan. The business of peddling is distinct from that of a manufacturer selling his own products, and those who raise or produce what they sell, such as farmers and butchers, are not peddlers.
    [Ed. Note. — For other cases, see Hawkers and Peddlers, Cent. Dig. §§ 3-6; Dec. Dig. § 3.
    
    For other definitions, see Words and Phrases, vol. 4, pp. 3220-3223; vol. 6, pp. 5260-5267; vol. 8, p. 7750.]
    2. Hawkers and Peddlers (§ 1) — Municipal Regulations — 'Validity.
    Under Rev. Civ. St. 1911, art. 817, giving city councils the power to pass ordinances and police regulations for good government, trade, etc., articie 854, giving them exclusive control over streets, highways, and public grounds of the city, article 866, authorizing it to regulate and inspect market places, and article 871, authorizing it to regulate hawkers, peddlers, etc., a city was authorized to prohibit peddling of any kind of merchandise on its public square or any street within its limits.
    [Ed. Note. — For other eases, see Hawkers and Peddlers, Cent. Dig. § 1; Dec. Eig. § 1.]
    3. Constitutional Daw (§ 88) — Personal Rights — Liberty to Follow Business.
    A municipal ordinance prohibiting the peddling of any merchandise in a public square or in any city street, but not prohibiting any one from following the business of peddling, was not invalid as an invasion of the personal right to follow a business or avocation.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 164, 165; Dee. Dig. § 88.]
    4.Constitutional Law (§ 208) — Hawkers and Peddlers (§ 2) — Class Legislation— Regulation oe Peddlers.
    A municipal ordinance prohibiting the peddling of any merchandise in a city’s public square or in any of its public streets, treating all pursuing the same business alike, was not invalid as class legislation.
    [Ed. Note. — For other cases,, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. § 208 ; Hawkers and Peddlers, Cent. Dig. § 2; Dec. Dig. § 2.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Parker County; F. O. McKinsey, Judge.
    Habeas corpus by J. W. Hogg. From an order of the district court remanding him to custody, relator appeals.
    Affirmed, and relator again remanded to the custody of the marshal.
    Moseley & Barcus, of Weatherford, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

On November 7, 1912, the city of Weatherford, in Parker county, duly passed and then put into force an ordinance to this effect;

Section 1: That “it shall hereafter be unlawful for any person to peddle any kind of merchandise, patent medicine or nostrum on the public square or any street within the corporate limits of the city of Weatherford, Texas.”

Section 2 prescribes as a penalty for the violation of said ordinance a fine of not less than $1 nor more than $25.

On January 30, 1913, relator, Hogg, did sell and peddle on First avenue, one of the public streets of said city within the corporate limits thereof, bananas and apples, which were not raised by him, but were bought to be resold at a profit. Said First avenue was one of the residence streets of said city and about eight blocks from the business portion thereof. In selling and peddling the same he did not interfere with or obstruct the use of the streets by the traveling public. He was a peddler, and had been engaged in that business in Weather-ford for several years, and lived therein. Weatherford had about 6,000 inhabitants, and it was incorporated under the general laws of this state regulating the incorporation of cities of over 1,000 inhabitants. The public square in Weatherford was 500 feet square. In the center of this square the courthouse of Parker • county was erected, and the courthouse and lawn surrounding it occupied a space of 150 feet square, leaving a space of about 150 feet wide around the courthouse, which had always been used by the citizens of Parker county generally on which farm products, such as hay, oats, melons, vegetables, poultry, etc., have always been peddled and sold to the inhabitants of the city, and said part of said public square and the streets, prior to the passage of said act, had always theretofore been used for peddling and selling said various kinds of merchandise to any one wishing to purchase; that in the sale of such merchandise theretofore the public travel and use of the streets by the inhabitants was never interfered with or molested. Parker county, of which Weath-erford is the county seat, is largely a farming county, and most of the farmers thereof, before the- passage of said - ordinances, brought their farm products to Weatherford, peddled and sold them out in various quantities to any one who would and did purchase them, and used the public square and streets of Weatherford to exhibit and sell their products; that prior to the passage of said ordinance the people, during the winter months, bought wood, and in the spring, and summer bought farm-products and garden truck, and persons so selling it exhibited in their wagons and sold it therefrom on the said public square and streets in any quantity the purchaser might want. The fruits and vegetables so sold were sold partly by people who raised said things and partly by people who made it their business to purchase from parties who raised them, and then peddled them. The city of Weatherford embraced the territory for about three miles square, with the courthouse in the center.

Under a proper complaint charging appellant, as aforesaid, the proper warrant was issued, under which the marshal of Weath-erford arrested and held relator in custody thereunder. He thereupon sued out a writ of habeas corpus before the district judge of said district, who properly heard the same on the state of facts above shown. The district judge held that said ordinance was legal, and he was arrested and detained under the proper proceedings and writ, and thereupon remanded to the custody of the marshal, to which action of the district judge he excepted and appealed to this court.

Under the statute of this state the city of Weatherford and the city council thereof has and had “power to pass, publish, amend or repeal all ordinances, rules, and police regulations, not contrary to the Constitution of this state, for the good government, peace and order of the city and the trade and commerce thereof that may be necessary or proper to carry into effect the powers vested • * * in the city government, or any department or officer thereof.” R. S. art. 817. Said municipality also had and has the “exclusive control and power over the streets, alleys, and public grounds and highways of the city, and to abate and remove encroachments or obstructions thereon.” R. S. art. 854. Also “to control and regulate market places and privileges, inspect and determine the mode' of inspecting meat, fish, vegetables and all produce and every article and thing therein brought for sale.” R. S. art. 866. Also “to license, tax, and regulate, or suppress .and prevent hawkers, peddlers, pawn brok-es, and keepers of theaters or other exhibitions, shows and amusements.” R. S. art. 871.

A peddler or hawker is a small retail dealer, who carries his merchandise with him, traveling from place to place, or from house to house, exposing his or his principal’s goods for sale and selling them. It is immaterial that the goods are bartered instead of sold, that the sale is a conditional one, or that it is on the installment plan. Persons who raise or produce what they sell, such as farmers and butchers, are correctly held not to be peddlers, although there is some authority to the contrary. These definitions and principles are laid down by 21 Oye. pp. 367 to 373, and are sustained by the citation of many cases from many of the states of this Union. So many of the states and cities having such statutes and ordinances prohibiting peddlers from following the business of peddling in the streets of a city except from their operation the manufacturer, mechanic, nurseryman, farmer, butcher, or fish or milk dealer, who sells, either by himself or an employé, his own manufactured articles, wares, or products, and such ordinances and statutes are held to be valid (21 Cyc. 373), and many cases of various courts so hold. In other words, the business of peddling is held to be a separate and distinct thing from where the manufacturer or producer himself sells his own articles and products. Peddling can be prohibited where the others may not be. The distinction is clear and reasonable. See, also, the case of Ex parte Bradshaw, from Hill county, 158 S. W. -, this day decided, and the authorities therein cited.

We think it clear that under the power and authority given the city of Weatherford by the statutes of this state it had the power and authority to prohibit peddlers from using the streets of Weatherford in the conduct of their business. The question of whether or not the city would prohibit peddling in all of its streets, alleys, and public square, or only in certain portions of them, was a question of policy to be decided and determined by the municipality, and by it alone.

Relator, by his able attorneys, in a forceful brief and oral argument, contended that this ordinance was void and contrary to our Constitution for various reasons, among them because it is an arbitrary exercise of power, is discriminatory and in derogation of the common rights given to all men under our Constitution; also because peddling is a business recognized by the state as legitimate, and is conceded by the public as a useful and remunerative occupation and one not per se immoral nor against public policy; also that it violates the constitutional guaranties that every man has the right to follow any avocation for the support of his family which is honorable and not in conflict with the laws of the land; and various other like reasons contended for by him.

We think all these questions and contentions of appellant have been settled against him by the decisions of the courts of this state. We refer particularly to Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668, and Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874. Appellant cites many authorities to sustain his various propositions. We deem it unnecessary to take up and discuss them. We regard them as inapplicable to the question in this case. This ordinance does not prohibit the relator or any other person from following the business of peddling. It simply denies him the right to follow his business or occupation in the public streets and on the public square of the city. It does not discriminate against him, and is not class legislation. It classes him, as the law has always classed him, in a separate class from other merchants, and from farmers, manufacturers, etc., who produce or manufacture, etc., and sell their own products, which is perfectly proper and legitimate. There is no general or other law of this state that authorizes peddlers to make marts of the public streets for the sale of his merchandise. It does not deprive him, as it does not any other person, of the right to sell his products produced, manufactured, or raised by him. It treats ah in his class exactly alike. The ordinance, in our opinion, is in no way void, the relator was properly remanded to the custody of the marshal, and the judgment of the district judge so determining is affirmed, and he is again remanded to the custody of the marshal.

DAVIDSON, P. J.

Believing my Brethren are in error, I enter my dissent. The Henson Case, 49 Tex. Or. R. is not in point, and is not applicable to the question decided in this ease, in my opinion. Neither is the case of Wade v. Nunnelly, cited by the prevailing opinion. -  