dissenting:
I dissent in toto both to the reasoning and conclusion reached by a majority of the court in this case.
Appellee was prosecuted under an ordinance prohibiting the business of selling, exposing for sale, or delivery of milk from wagons or other vehicles without a license from the city for that purpose. It is conceded there is no power in the city charter to tax such a business, but the opinion of the court seems to proceed upon the theory that the acts admitted to have been done by appellee amount to peddling, and that inasmuch as the charter does authorize the city to prohibit, by ordinance, peddling without a license therefor, the defendant should be convicted for that offence. I confess I am unable to see the force of such reasoning.
There are two sufficient answers to the position thus assumed: First, it is manifest that the object of the city in adopting the ordinance in question was simply to impose a tax on milk dealers, and not to prohibit peddling. Second, the prosecution instituted against appellee was not founded upon the ordinance prohibiting peddling.
The ordinance under which this prosecution was commenced, does not contain either the term peddling or peddler, nor has it the slightest allusion to that subject. ít is directed solely against .the business of selling milk. It is clear that if the ordinance were valid, one might be convicted under it for a single transaction or sale, where there could be no pretence that the offender had been guilty of peddling. In such a case as that, the court, as all must admit, would be bound to hold the ordinance invalid, and there consequently could be no recovery, although the proofs brought the defendant within its express provisions. And it will hardly be seriously maintained by any one that an ordinance may be valid to-day and invalid to-morrow, dr that its validity or invalidity can in any sense be made to depend upon the proofs in a particular case; and yet such seems to be the effect of the present decision.
For the reasons stated, I am clearly of opinion that the Criminal Court properly held the defendant not liable under the ordinance, and consequently the Appellate Court committed no error in affirming its judgment.