The defendant is a resident of the city of Binghamton, in this state, and is proceeded against for having, in violation of an ordinance of the village of Norwich, peddled and sold goods from house to house, and taken orders therefor, in that village. It is conceded that he had never taken out the required license. The evidence does not sustain the charge of peddling. The statement of Mrs. Lucy Peckham is evidently based upon hearsay, merely, and, as to every fact testified to by her, should be rejected. The case, therefore, depends entirely upon the evidence of the other witness, Ida O’Neil. From that it appears that on July 23, 1896, defendant sold and delivered to her three pounds of tea at her house in such village, and also took an order from her for more tea, to be thereafter delivered. It does not appear that he had ever sold or offered to sell anything at any other time or place in such village. He was not, therefore, a peddler, within the decision of Village of Stamford v. Fisher, 140 N. Y. 187, 35 N. E. 500. Hence the only charge sustained against him is that he had sold goods upon contract, and taken an order, at one house in the village, without a license so to do. And such is the situation assumed by the respondent attorney on •the argument of this case. The ordinance which it is claimed he violated, so far as it applies to this case, reads substantially as follows :
“ No person * * * not a resident of the village of Norwich shall sell goods, wares or merchandise by sample, or upon order, or by contract from house to house, unless he shall have received a license so to sell, take orders or to make contracts. Such license rates shall be as follows: Auctioneers, $15 to $25 per day; peddlers, agents, canvassers and hawkers on the streets, $5 to $10 per day; meat peddlers, $30 per year. Any personPage 335violating this section shall be guilty of a misdemeanor as provided by section 3 of title 3 of chapter 374 of the Laws of 1895. ”
It is manifest that the purpose and effect of this ordinance is to levy a tax upon the business of selling goods by a nonresident within the village of Norwich. It is not merely a license required by the way of regulating such business, in the interest of good order and the general safety of society. Although denominated a “ license rate, ” the charge is made by the day,—not $10 for every license issued, but $10 for every, day the business is carried on. A license fee, properly so called, is such a sum as will compensate for the expense of issuing and recording the license, and, when the license is issued for the purpose of securing police control over the matter licensed, such further sum as will probably be incurred in inspecting and regulating such business. When such a license may lawfully be issued, such a fee may lawfully be charged; but in the case before us (without regard to the amount fixed) the fact that the charge is made, not for the license issued, but by the day, strongly indicates that the intent was to tax the business, and not to obtain compensation merely for licensing the same. But, when we consider the amount fixed, such an intent becomes clearly apparent. Ten dollars per day is far beyond any sum which we can fancy would be needed, either to compensate for issuing the license, or to meet any additional expense that the inspecting and regulating of such a business could possibly create. The article sold is perfectly harmless. The sale of it threatens neither the public health, morals, or safety, nor the good order of the community. No provision for public inspection of the same is made by the ordinance. Evidently none will be needed. No provision for rejecting any applicant is made. It seems that the license is to be issued to any one who will pay the charges. Plainly, the scheme is to raise money for revenue purposes, so far as any licenses are taken out, and to practically prohibit sales being made by nonresidents, to the advantage" of those residing within the village and selling similar articles. Mayor, etc., v. Second Ave. R. Co., 32 N. Y. 261. It is a fundamental principle that the village, as a municipal corporation merely, has no inherent .authority to require a license and impose either a fee or a tax upon any legitimate business. This is conceded, and the right to
“ When a municipal corporation is given the power to license useful trades and occupations, it cannot use the license as a tax to raise revenue, nor is it authorized to entirely prohibit the exercise-of the trade or occupation by any excessive license fee. ”
Such is the rule as stated in 13 Am.'& Eng. Enc. Law, p. 532, and it is fully sustained, not only by the cases there cited, but by most writers on the subject, and many decisions. 1 Dill. Mun. Corp. (4th Ed.) § 357, p. 424, says:
“ Concerning useful trades and employments, a distinction is to-be observed between the power to ‘ license' and the power to ‘ tax. *Page 337In such cases the former right, unless such appears to have been the legislative intent, does not give the authority to prohibit, or to use the lciense as a mode of taxation with a view to revenue, but a reasonable fee for the license and the labor attending its issue may be charged. ”
Also, in Cooley, Tax’n, c. 19, p. 408, the same rule is laid down. And in discussing the terms which the statute should use to confer the power to tax he says :
“ It is perhaps impossible to lay down any rule for the con struction of such grants that shall be general, and at the same" time safe; but, as all delegated powers to tax are to be closely scanned and strictly construed, it would seem that when a power to license is given the intendment must be that regulation is the object, unless there is something in the language of the grant, or in the circumstances under which it is made, indicating with sufficient certainly that the raising of revenue by means thereof was contemplated. ”
See, also, upon this subject, 2 Dill. Mun. Corp. §§ 768, 763; Dunham v. Trustees, 5 Cow. 462; City of Brooklyn v. Nodine, 26 Hun, 512.
In the statute before us the language used is. “ to regulate ” and “ to license. ” As we have seen, these words of themselves do not confer the right to tax or prohibit, and no other words being used, the intendment is that regulation, merely, was the object. As there is nothing in the language, so also there is nothing in the nature of the subject, or in the circumstances, that indicates an intent to confer upon the trustees the power to tax the business in question. The provision is found in a section of the act giving authority to regulate hawking, peddling, auctioneering, gift sales, lotteries, etc.,—subjects which are generally placed under the regulation of the police. In other parts of the act there are plain and specific provisions for levying all taxes within the village, and it would be a strained and unreasonable construction of the statute to conclude that anything more than a power to subject to police regulations was by this section intended to be conferred. “Such taxes are apt to be inequitable, and the principle not free from danger of great abuse. Hence ordinances of this character ought not to be sustained unless the authority by expressly or otherwise
Judgments of county court and of police justice reversed-
All concur.
I concur for reversal. I do not think the legislature had power to authorize the village authorities to impose . either a tax or license fee upon nonresidents to which residents were not' also subject. The fundamental law knows no distinction between residents of different political subdivisions of the state, and, while different laws may be enacted for different localities in the state as their varying needs may require, yet those laws must not discriminate between persons lawfully within their jurisdiction; for every resident of the state is entitled to the equal protection of equal laws, and is entitled to go to and fro, and buy, sell, and labor, in any and every part of the state, upon the same terms and conditions—no more, no less—that are imposed upon residents of that particular portion of the state where he chooses to exercise his rights; and any imposition of an additional burden upon him, as a condition of exercising his rights, is depriving him of the equal protection of equal laws, and is contrary to the law of the land.