source: Caselaw Access Project

author: PRENDERGAST, J. PRENDERGAST, J. DAVIDSON, P. J.

license: Public Domain

text:
    Ex parte BRADSHAW.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    On Motion for Rehearing, May 14, 1913.)
    1. Constitutional Law (§ 205) — Municipal CORPORATIONS (§ 661*) — CLASS LEGISLATION.
    A city ordinance, making it unlawful to use the streets or alleys embraced within the fire limits of the city for the purpose of vending, displaying, or peddling goods, provided the ordinance shall not apply to one who offers for sale any product raised upon'property controlled by himself, is valid, and does not violate Const, art. 1, § 3, providing that all free men have equal rights, and no man is entitled to exclusive privileges.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 591-624; Dec. Dig. | 205; Municipal Corporations, Cent. Dig. §§ 1432, 1434-1436; Dec. Dig. § 661.]
    2. Constitutional Law (§ 101) — Vested Rights — Use oe Streets.
    Persons have no vested rights to make a market of the streets and public places of an incorporated town.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 209-211; Dec.Dig. § 101.]
    3. Constitutional Law (§ 205) — Class Legislation.
    The Legislature, and municipal corporations when authorized by their charters, may classify persons according to their businesses, and apply different rules to different classes of persons.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. |§ 59-624; Dec. Dig. § 205.]
    4. Evidence (§ 23) — Judicial Notice — Fire Limits.
    The Court of Criminal Appeals knows as a matter of common knowledge that the fire limits of a city include thickly settled and business parts of the city.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 29, 30; Dec. Dig. § 23.]
    Davidson, P. J., dissenting.
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Application for habeas corpus by M. L. Bradshaw. From a judgment in the county court remanding relator to custody, he appeals.
    Judgment affirmed, and relator remanded to custody.
    Luther Nickels, of Austin, for appellant. Tarlton Morrow, City Atty., of Hillsboro, and O. 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.

The city of Hills-boro, in Hill county, was duly incorporated by a special act of the Legislature. Among other powers given by its charter, is the power “to control the streets, alleys, highways, sidewalks and public grounds and Xilaces in said city”; also “to regulate and control the use of said streets, alleys, etc., by any person,, animal, or vehicle in whatever way and for whatever purpose”; also to establish and erect markets and market house, and designate “and control, and regulate market places and privileges”; also "to license, tax, regulate, suppress and prevent hawkers, peddlers, pawnbrokers, and dealers in all kinds of junk and secondhand goods, wares and merchandise, itinerant venders of clothing or wearing apparel, or any other business or occupation which in the opinion of the city council shall be the proper subject of police regulation.”

Under this power and authority said city duly passed and put into effect an ordinance regulating traffic upon the streets and alleys of said city within the fire limits, and regulating peddling, vending, and exhibiting thereon, and providing fines for violation thereof. Section 3 of said ordinance is: “It shall hereafter be unlawful for any person to use the streets or alleys embraced within the fire limits of the city of Hillsboro, for the purpose of vending or displaying goods, wares, merchandise or produce or other articles, or for the purpose of peddling goods, wares, merchandise, produce or other articles: Provided, however, that this section shall not apply to any person who himself offers for sale any products raised or grown upon the property owned or rented by him, or under his control.” Section 7 of said ordinance makes the violation thereof a misdemeanor, punishable by fine not exceeding $25.

On December 12, 1912, proper complaint was filed against relator, Bradshaw, a proper warrant issued for his arrest, and he was arrested by the city marshal and properly held thereunder. He thereupon sued out a writ of habeas corpus before the county judge of 1-Iill county, claiming that he was illegally restrained of his liberty, because the >city of Hillsboro had no authority to pass such ordinance, and it is void. The county judge heard the evidence and argument, and remanded the relator to the custody of the marshal, from which this appeal is prosecuted.

The further facts show that on December 12, 1912, relator was a peddler, selling apples, which he had in his two-horse wagon; that he made a sale therefrom while he was on the public square, in what was shown to be a part of the public street or square of said city. The fee to this particular portion of the square or street was in 1-Iill county. Its courthouse, it'seems, was located in the center of this square. This part of the square or street, where relator was, had been paved, and was then and for many years prior thereto had been used by the public generally for road or street purposes. The city swept the whole of this paved street or square, and exercised control over it as one of the public streets or thoroughfares of the city. It appears that the relator offered for sale apples upon the square or streets of said city, embraced within the fire limits thereof, and that such articles offered for sale and sold by him were not products grown or raised upon his property, or property rented by him or under his control.

The main contention by relator is that said ordinance Is void because it is class legislation; that it prohibits peddlers from selling on its streets and authorizes other persons to sell on its streets, within said fire limits, any products raised or grown upon their property, rented by them or under their control, claiming that said ordinance violates that clause of our Constitution (section 3, art. 1) which is: “All free men, when they form a social compact have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” It is undoubtedly the law of this state, as held by the Court of Civil Appeals in Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 672, that persons have no vested right to make marts of the streets, alleys, and other public places in any incorporated town. It is also unquestionably the law of this state that the Legislature may classify persons according to their business, and may apply different rules to those which belong to different classes, and that municipal cor porations, when authorized by their charters, can also do this. Supreme Lodge v. Johnson, 98 Tex. 5, 81 S. W. 18; Campbell, Receiver, v. Cook, 86 Tex. 634, 26 S. W. 486, 40 Am. St. Rep. 878; Insurance Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; Marchant v. Railway Co., 153 U. S. 389, 14 Sup. Ct. 894, 38 L. Ed. 751; Green v. State, 49 Tex. Cr. R. 380, 92 S. W. 847; Smith v. State, 54 Tex. Cr. R. 298, 113 S. W. 289; Beaumont Co. v. State, 57 Tex. Civ. App. 605, 122 S. W. 615; Douthit v. State, 36 Tex. Civ. App. 396, 82 S. W. 352; Id., 98 Tex. 344, 83 S. W. 795; Insurance Co. v. Gooding, 19 Tex. Civ. App. 490, 49 S. W. 123; Insurance Co. v. Mettler, 185 U. S. 325, 22 Sup. Ct. 662, 46 L. Ed. 922; Nash Hardware Co. v. Morris (Sup.) 146 S. W. 874; Railroad v. Taylor, 134 S. W. 819; Railroad v. Grenig, 142 S. W. 135; De Grazier v. Stephens, 101 Tex. 194, 105 S. W. 992, 16 L. R. A. (N. S.) 1033, 16 Ann. Cas. 1059.

This court, in Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874, expressly held that the city of Greenville, in -Hunt county, had the power to prohibit the use of certain streets and the public square of that city for the purpose of peddling. The city of Greenville, as shown by the opinion in that case, was incorporated under the general incorporation laws of this state, and it was given the same power and authority over its streets that the city of- Hillsboro was substantially given over its-streets, square, etc. In that case, as is shown by the report of it, the city of Greenville made it an offense “for any person to peddle or in any other manner sell any kind of merchandise, patent medicine, or nostrum on the public square and certain streets,” naming them. Henson eon-tended that the ordinance was unreasonable, and therefore void. He also contended that the ordinance was inseparable, and that it applied to others as well as peddlers. This court held that the rule of ejusdem generis applied, and that the “ordinance evidently had in view as its primary object to prohibit peddling in the public streets and on the public square of Greenville, and what follows as to other sales relates to this character of sales — -that is, sales by peddling.” The opinion then proceeds to hold that, even if wrong in applying the rule of ejusdem generis, then .in the latter part of the ordinance, indicating that others than peddlers were prohibited from using the said streets and square for peddling purposes, that it was severable, and held the ordinance constitutional, and within the powers of the corporation to prohibit peddling on said streets and public square. The opinion also holds: “We have no doubt that it is within the power of the Legislature to confer on towns and cities the power to regulate peddling within the jurisdiction of such towns and cities, especially on the public streets and squares of such cities; the same being peculiarly within the jurisdiction of towns and cities. Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668. Nor does the fact that the state, as is the ease here, may license peddlers, exclude the idea of municipal supervision, where the power for such supervision is given in the charter,”

It is true that this court has uniformly held that ordinances levying any occupation tax on peddlers, which exempt from their operation other persons as peddlers, were invalid (Ex parte Jones, 38 Tex. Cr. R. 482, 43 S. W. 513; Rainey v. State, 41 Tex. Cr. R. 254, 53 S. W. 882, 96 Am. St. Rep. 786, and other cases), and that ordinances which exempted certain persons within any given class are uniformly held invalid. But those eases do not apply in this question. As shown by these decisions and on like questions, the very reason that they were held invalid and violative of said provision of our Constitution was because they excepted from the operation of the act other persons within that class, not because the Legislature or the municipal corporation did not have the right or power to make classes which were founded upon some just basis, and tax, regulate, or prohibit one class and not the other.

The question raised in this case has many times been decided adversely to relator’s contention by the courts of different states. State v. Montgomery, 92 Me. 433, 43 Atl. 13; People v. Sawyer, 106 Mich. 428, 64 N. W. 333; In re Nightingale, 11 Pick. (Mass.) 168; 2 Dillon on Municipal Corporations (5th. Ed.) § 706; Commonwealth v. Rice, 9 Metc. (Mass.) 253; Wartman v. Phila., 33 Pa. 202; Dutton v. Mayor, 121 Tenn. 25, 113 S. W. 381, 130 Am. St. Rep. 748, 16 Ann. Cas. 1028; People v. De Blaay, 137 Mich. 402, 100 N. W. 598, 4 Ann. Cas. 919. See, also, note in 16 Ann. Cas. 1030, where many cases to this effect are cited.

In the case of People v. Sawyer, 106 Mich. 428, 64 N. W. 333, the Supreme Court of Michigan said: “The discrimination in favor' of mechanics and farmers in the sale of their products is within the power conferred by the charter upon the common council. These immunities have been recognized for many years. By the statute of 50 Geo. Ill, e. 41, § 23, real workers and makers of goods within Great Britain were exempt from the payment of the license which was imposed upon hawkers and peddlers. 1 Barn. & Adol. 279; 10 Barn. & C. 66. In many, if not in most, .of the American states, these immunities are granted to mechanics and farmers selling their own products, and the power is not questioned.”

In the case of State v. Montgomery, 92 Me. 441, 43 Atl. 16, the Supreme Judicial Court of Maine said: “And the argument is that the Legislature may not properly say that acts which,. if committed by one person, are a crime, if committed by another are not a crime. It is undoubtedly true that police regulations of this kind, to be valid, must be uniform, and must not discriminate against one class, and in favor of another. In other words, in an act to regulate peddlers, all peddlers of the same kind, under the same circumstances, must be regulated alike. It is a ‘natural, inherent, and inalienable right’ of every man that he shall be subject only to the same burdens, limited only by the same restraints, regulated only by the same laws, as is his neighbor, situated under the same conditions as he is. Is this right abridged by this statute? It is contended that the exception which permits one to peddle without license ‘the products of his own labor, or the labor of his family, any patent of his own invention, or in which he has become interested by being a member of any firm, or stockholder in any corporation, which has purchased the patent,’ is a discrimination in favor of some and against others. We do not think so. If one may peddle freely the products of his own labor, so may all. The products may be unlike; but the freedom to prosecute one’s own business and to peddle his own products is free alike to all. So of the other exceptions. While it may happen that various producers may peddle each the product of his own labor without license, but not of the labor of another, still we think this fairly answers the requirements of uniformity. The Legislature is the sole judge of the extent to which the business of peddling should be regulated, and its conclusions are final, so long as the burdens imposed do not bear unevenly upon citizens. Ex parte Thornton [C. C.] 12 Fed. 538.”

In the case of Wade v. Nunnelly, 19 Tex. Civ. App. 262, 46 S. W. 672, cited above, our Third Court of Civil Appeals, in discussing the power and right of a municipal corporation of our state to prohibit the use of its public streets for market places, speaking through Judge Key, said: “The ordinance in question does not undertake to prevent or interfere with the right of the appellees to purchase, sell, or otherwise deal in the products referred to upon their own premises; nor does it prohibit other persons from carrying such products and delivering them to appellees upon their premises. It may, and doubtless will, interfere with the privilege formerly enjoyed by the public at large of exhibiting such products upon the streets and in other public places within the territory referred to, and the convenience resulting therefrom to the appellees, as dealers in such products. But appellees have no vested right to make marts of the streets, alleys, and other public places; and to deny them the privilege of so doing is not to destroy or deteriorate any of their property rights. It may result in inconvenience, and even additional expense to them; but there a>re many laws, and especially police regulations, that have this effect, and are, nevertheless, valid.”

Many reasons, all of which are very reasonable, could be given why the municipalities should have and do have the right to make just such classifications as was made by this ordinance. It is noticed that the ordinance prohibits peddling on those streets which are included within the fire limits. This, it occurs to us, in the larger towns and cities of this state, is necessary to be done. We know, as common knowledge, that fire limits in towns and cities include only that part of the thickly settled and business portion. In case a fire breaks out within this territory, it is necessary that the streets be kept open, so that the proper fire department, with its apparatus, will not be obstructed in reaching the fire as quickly as possible. If peddlers were not prohibited from occupying the streets within such localities, they could take possession of the streets and obstruct the fire department in such a nvay as to be a menace to the whole business and thickly settled portions of towns and cities. As aptly suggested by Hon. Tarlton Morrow, city attorney of Hillsboro, and who has filed a brief herein in behalf of the city and respondent, the city is charged with the duty of looking after the health of the citizens, and it is a known fact that products usually peddled are not so fresh nor wholesome as those offered by the farmer who raises them and himself offers them for sale on the streets. The farmer or other producer, who brings his own raised products to town, only comes occasionally, and does not remain long; whereas the peddler takes his stand in the public street, or on the public square, in the early morning, and remains throughout the whole day, and the filth that accumulates from the standing of teams, and throwing of the peel of fruits and other refuse matter into the street, makes more or less a nuisance and a burden, which must he removed, and is, daily by the city authorities. If, therefore, the city did not have authority to make such classification, and prohibit the peddler from occupying the streets for his business, they could practically take charge of the whole street every day, and from day to day throughout the year, and thus maintain their places of business in the public streets, which were never intended for any such purpose; whereas, the other merchants have to buy their own lots, erect their own buildings, or rent them, and stay on their own property for the purpose of conducting their business when their competitor, the peddler, could, if not prohibited, monopolize the whole streets, pay no rent or other revenue to the city, and create a nuisance and an obstruction continuously in various ways. So that we hold the classification made by this ordinance is reasonable and proper, and that the ordinance, for no purpose is invalid; but, on the contrary, it is valid. State v. Barbelais, 101 Me. 512, 64 Atl. S81; Louisville v. Roupe, 6 B. Mon. (Ky.) 593; Com. v. Rice, 9 Metc. (Mass.) 253; Atty. Gen. v. Tongue, 12 Price, 51; Com. v. Roenick, 10 Pa. Dist. R. 51; 21 Cyc. 372, and cases cited in note 49; 3 Dil. Mun. Corp. § 1166, and notes.

Appellant’s contention that he was on that part of the public square, the fee and title to which was in the county, and that the county gave him authority to establish and maintain his peddling business there, cannot be maintained. Where he located and kept his wagon and horses in his peddling business, as shown, was in the public street or square.. Hill county could no more give him power or authority to obstruct the streets or public square than any other corporation or person could do. Clearly this location was within the city limits, and on the public streets or square, paved and used for public uses, and the city, and not the county, had jurisdiction, power, and authority over it, at least, for street purposes and for a public square for the public.

The judgment of the county judge will be affirmed, and the relator remanded to the custody of the marshal.

HARPER, J., concurs in the opinion remanding relator. DAVIDSON, P. J., dissents.

On Motion for Rehearing.

{The following is relator's motion for rehearing, and is included in this report on the suggestion of Davidson, P. J., contained in his dissenting opinion:’]

To the Honorable Justices of Said Court:
Comes now M. L. Bradshaw, relator in the above styled and numbered cause, and moves the court to set aside and hold for naught the judgment rendered therein heretofore on the 16th day of April, 1913, affirming- the judgment and order of the county judge of Hill county, Tex., and remanding relator to the custody of the city marshal of the city of Hillsboro, Tex.,, and to reverse said order and judgment, and order the discharge of relator, for the following reasons, to wit:
The court erred in affirming the order of the county judge of Hill county, Tex., and in remanding relator to the custody of the city marshal of the city of Hillsboro, Tex., for the reason that the ordinance of said city, under which relator is attempted to be prosecuted, and by virtue of which he was arrested and held in custody, is void as being- in contravention of section 3 of article 1 of the Constitution of the state of Texas, because said ordinance involves class' legislation, and does not grant to all persons, and to relator, equal rights under the law.
Statement. — The ordinance in question reads as follows:
“Section 3. It shall hereafter be unlawful, for any person to use the streets or alleys embraced within the fire limits of the city of Hills-boro for the purpose of vending or displaying goods, wares, merchandise, or produce, or other articles, or for the purpose of peddling goods, wares, merchandise, produce, or other articles: Provided, however, that this section shall not apply to any person who himself offers for sale aivy products raised or grown upon the property owned or rented hy him, or under Ms control.”
.“Section 7. Any person violating any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding twenty-five ($25) dollars.” (Transcript, p. 8.)
Relator is being prosecuted under the first division of section 3 of the ordinance; that is to say, he is not being prosecuted for peddling. The charge in the complaint against him reads as follows: “Did then and there unlawfully use the streets embraced within the fire limits of the city of Hillsboro, Tex., to wit, Elm street, on the Public Square, for the purpose of vending and displaying goods, wares and merchandise and produce.” (Transcript, p. 4.)
The produce which relator was offering for sale was apples. (Transcript, p. 7.) And they were good sound ones. (Transcript, p. 11.) “Many farmers sold at that time, and for a long time had been in the habit of selling, their own home-grown apples at the same place, and under the same circumstances. None of them were ever prosecuted for it.” (Transcript, p. 11.) Said county has always been willing, and the county authorities have always permitted, every person who desired to use its land outside of said fence and railing for any purposes whatever, such as hitching teams, allowing wagons and vehicles of every kind to stand thereon, selling fruits and vegetables and all other products thereon. “The wagon,” says relator, “in which I kept the fruit, etc., which I sold, was just an ordinary wagon, of ordinary size, and I had a two-horse team hitched to it. I have frequently seen wagons and teams and other vehicles hitched and left standing for a long time upon the strip of land of the streets of the city of Hillsboro. This has been the indiscriminate practice of the public for many years, and the practiee is still in use. These vehicles, and teams were, and are, of all sizes, kinds, and descriptions. The space occupied by my fruit wagon and team does not take up any more space than is used by almost any other wagon and team for any other purpose. Many wagons and vehicles left standing frequently upon the Public Square and streets of said city, and upon said strip of land, take up more space than is taken up by my wagon and team and outfit.” (Transcript, pp. 10 and 11.)
AUTHORITY. — Ex parte J. F. Jones, 38 Tex. Cr. R. 485, 43 S. W. 513; Ex parte Overstreet, 39 Tex. Cr. R. 474, 46 S. W. 825; Rainey v. State, 41 Tex. Cr. R. 254, 53 S. W. 882, 96 Am. St. Rep. 786; Pullman Palace Car Co. v. State, 64 Tex. 274, 53 Am. Rep. 758; Ex parte Woods, 52 Tex. Cr. R. 575, 108 S. W. 1171, 16 L. R. A. (N. S.) 450, 124 Am. St. Rep. 1107; G. & S. F. Railway Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666.
REMARKS. — In the majority opinion the court says: “The main contention by relator is that said ordinance is void, because it is class legislation; that it prohibits peddlers from selling on its streets, and authorizes other persons to sell on its streets, within said fire limits, any products raised or grown upon their property, rented by them, or under their control.”
It is true that relator asserts that the ordinance involves class legislation in the most objectionable form and of the “purest ray serene” ; but he makes no such contention as is stated in the latter part of the quoted portion of the opinion. He does not claim to be a “peddler,” and there cannot be found a scintilla of evidence in the record to show him to be such: and as the whole fabric of the opinion is shot through with this thread of error, and as the judgment appears, fundamentally, to rest upon an assumption not only de hors the record, hut flatly contradictory thereof, we deem it appropriate, then, to discuss relator’s status in the purview of the ordinance.
A casual glance at the ordinance will show it to be directed against two classes of persons and two lines of business conduct. In tlie first place, it is made a crime for any person “to use the streets or alleys embraced within the fire limits of the city of Hillsboro for the purpose of vending or displaying goods, wares, merchandise, or produce, or other articles.” In the second place, it is made an offense for any person “to use the streets or alleys embraced within the fire limits of the city of Hillsboro * * * for the purpose of peddling goods, wares, merchandise, or produce, or other articles.” Can there be the slightest doubt that the council intended to deal with or create two separate offenses, or to denounce two different acts? If so, for what reason did it use the disjunctive “or”?
The use of the' streets is denounced for either of two different purposes, to wit: “Eor the purpose of vending or displaying * * * or for the purpose of peddling.” A person clearly could be guilty of vending and be innocent of peddling, or vice versa.
Now, into what class did the relator fall? The complaint charges that he “did then and there unlawfully use the streets embraced within the fire limits of the city of Hillsboro for the purpose of vending and displaying goods, wares, and merchandise and products.” It is shown that he made but one sale, and that he made that one on property belonging to Hill county, and at a place where he had been given permission to sell by the county authorities. There is not the slightest suggestion that he moved about from place to place, offering to sell; but the legitimate inference from the evidence is that the only place where he expected to sell was fixed upon the county’s property. Was he a peddler?
In the case of Ex parte Henson, 49 Tex. Cr. R. 179, 90 S. W. 876, it is said a peddler, “as defined by the authorities, is a person who carries goods from place to place for sale, or' one who carries about small commodities on his back, or any cart or wagon, and sells them. A peddler is understood to be one who goes around from house to house or from customer to customer and sells goods. Rapalje, Law Dictionary; Webster’s Dictionary.” In view of this definition, and the wording of the ordinance itself, to argue that relator was not a peddler, is purest supererogation. The foundation of the cause was that he simply vended products. He was not charged with peddling. We take it that citation of authority is entirely unnecessary to support the proposition that a prosecution is limited to the acts charged, and that a judgment must rest upon and conform to the pleadings. This necessarily eliminates from the case the whole idea of peddlers and hawkers. Under the record we are dealing alone with the prosecution of “a person” —just an ordinary man, not a peddler — charged with having violated the law by using the streets “for the purpose of vending or displaying goods, wares, or merchandise and produce.” And this in turn, perforce, eliminates from the consideration that provision of the city charter under which the power is attempted to be given to the city “to license, tax, regulate, suppress and prevent hawkers, peddlers, pawnbrokers, and dealers in all kinds of junk and secondhand goods,” etc. These thing;s are important of remembrance, for the majority opinion in whole and every part rests upon the supposed power to legislate against hawkers and peddlers as a class. We repeat that this question is not in the case, because relator was not charged or prosecuted as a hawker or peddler, and the offense with which he is charged falls within a portion of the ordinance which does not deal with peddling, but denounces another offense altogether. The opinion recites: “The further facts show that on December 12, 1912, relator was a peddler.” We reply that this statement flies in the face of the record. The city did not propose to prosecute him as a peddler, but was dealing with another and different offense, that of vending at a fixed place. It would appear, therefore, that the court has affirmed the order of the county judge upon a question foreign to the case. Again it would appear that under the court’s reasoning, since relator is not a peddler — not a member of that disfavorite class against which it is said the council may discriminate — he should be restored to his liberty. Eor this reason alone, if there were none other, it is submitted that relator should be granted a rehearing, and that his discharge should follow as a matter of course.
But the condition of the record, as described above, has a more fundamental effect. Under the contention that the ordinance is void as class legislation, it dismisses from consideration the idea of hawkers and peddlers, and limits the question to that part of the ordinance which reads as follows: “It shall hereafter be unlawful for any person to use the streets or alleys embraced within the fire limits of the city of Hillsboro for the purpose of vending or displaying goods, wares, merchandise, or produce, or other articles: * * * Provided, however, that this section shall not apply to any person who himself offers for sale any products raised or grown upon the property owned or rented by him, or under his control.”
To state the question specifically: Is it permissible for a Legislature, or city council, to prohibit a person from vending or displaying produce not “raised or grown upon the property owned or rented by him, or under his control,” and at the same time permit that person’s neighbor to vend or display produce “raised or grown upon the property owned or rented by him, or under his control”? If this is to be or become a country of unequal rights and special privileges, “yes;” but if all citizens are to receive equal portions of the state’s bounty and protection, reason interposes an emphatic “No.”
The idea of such discrimination grieves the spirit of our institutions. In the yesteryear, when our people assembled them into an organized civil society, each with the other, and all with each, entered into a solemn contractual relationship with reference to the purview, purposes, and powers of the government. Certain things were reserved unto themselves alone; other things were declared, with inspiring emphasis, to be inherent and excepted from the general powers of government; and among these things, —in11 order “that the general, great, and essential principles of liberty and free government may [might] be established” — it was declared: “All free men when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” Section 3, Bill of Rights.
Mr. Justice Henderson — a man whose intel-leet was magnificent in its grasp and reach of essentials, and whose great heart was saturated with the pure genius of our government — has said that this declaration of rights “would appear to inhibit any class legislation.” Ex parte Jones, 38 Tex. Cr. R. 486, 43 S. W. 513.
An open-minded consideration of the case cited will compel admiration for the interpretation there given the Bill of Rights, as well as lay bare the clear analogy between the facts and principles there and here.
The statute held to be objectionable in that case was an occupation tax statute (Acts 25th Leg. Sp. Sess. p. 49), which provided for the collection of the tax as follows: “Subdivision 21. Prom every foot peddler, $5.00 in each county in which he peddles: * * * Provided, that any blind, deaf and dumb, or wounded, any person who has lost a hand or foot, shall not be required to pay any tax for peddling: Provided, that all ex-Confedei'ate and ex'-Federal soldiers, who, from old age or other cause, may be incapacitated to do and perform manual labor, and who are actual residents of the state of Texas, and are not inmates of any Soldiers’ Home, or drawing any pension from the United States or any state government, be and are hereby exempted from the payment of any such peddlers’ occupation tax: Provided, such person shall not be exempt from such peddlers’ tax if employed in peddling for any other person or persons. Nothing herein contained shall be so construed as to include traveling vendors of tin or earthen ware: Provided, further, that nothing herein contained shall be so construed as to include traveling vendors of literature exclusively religious in character, or traveling vendors of poultry, vegetables, or other country produce exclusively, fruit and fruit trees exclusively, if raised or produced by the vendor or his family.”
With reference to this statute and the exemptions made by it, this court said: “Unquestionably the act exonerates and exempts from taxation and constitutes certain classes therein named privileged classes, who are authorized to pursue the occupation of peddling without the payment of any tax or the procurement of any license. This is obviously taxation which is not equal or uniform.” And with reference to section 3 of the Bill of Rights, the court expressly held that the statute infracted this section as being class legislation.
Upon authority of ex parte Jones, supra, this court in J. B. Rainey v. State, 41 Tex. Cr. R. 254, 53 S. W. 882, 96 Am. St. Rep. 786, declared a statute passed by the Twenty-Eifth Legislature (Acts 25th Leg. Sp. Sess. p. 54, subd. 38) to be void for discrimination. The part of the statute involved read as follows: “Prom every cotton buyer or buyer of wool or hides, $10.00: Provided, that a merchant who pays an occupation tax, as herein prescribed, shall not be considered a cotton buyer or buyer of wool or hides.”
The court, in declaring the statute to be vio-lative of section 3 of the Bill of Rights, said: “By reference to subdivision 1 of the occupation tax act of 1897, it will be seen that the tax for pursuing the occupation of merchant may be as low as $3. It would therefore follow that such a merchant, on payment of $3, could pursue the same occupation that a cotton buyer was authorized to follow, but the cotton buyer would be required to pay a tax of $10.”
With a citation of these two cases the majority of the court, in the instant case, said: “It is true that this court has uniformly held that ordinances levying an occupation tax on peddlers which exempts from its operation other persons as peddlers were invalid.” “But those cases,” says the opinion, “do not apply to this question. As shown by these decisions and on like questions, the very reason that they were held invalid and violative of said provision of our Constitution was because they excepted from the operation of the act other persons within that class, not because the Legislature or the municipal corporation did not have the right or power to make classes which were founded upon some just basis, and tax, regulate, or prohibit one class and not the other.”
The error in this proposition, we believe, becomes at once manifest, if we will but consider the ordinance in question as if it were a tax measure, rather than a penal one. If we drop from section 3 of the ordinance the following words: “It shall hereafter be unlawful for any person to use” and substitute therefor such words as these, “There shall hereafter be collected a tax from any person who uses,” the section will then read: “There shall hereafter be collected a tax from any person who uses the streets or alleys embraced within the fire limits of the city of Hillsboro for the purpose of vending or displaying goods, wares, merchandise, or produce, or other articles: * * * Provided, however, that this section shall not apply to any person who himself oilers for sale any products raised or grown upon the property owned or rented by him, or under his control.”
If the ordinance read this way, under the opinion, it would be void as class legislation. If it be denied that this is the effect of the holding certainly it cannot be denied that the ordinance would be void under Ex parte Jones, Rainey v. State, and Pullman Palace Car Company v. State, supra, and other cases that have been cited. “But,” say the majority of the court, “because the ordinance is penal, and not a tax measure, it is valid, although it would be void as a tax raiser.” Then to what point have we advanced? What a doctrine have we fallen upon! Through the swift-changing scenes of time we have progressed faster than we knew. Time was when American manhood cherished the opportunity to lay wordly goods at the shrine of human liberty; to achieve freedom men have gladly gathered about them the rags of poverty, and counted all this world’s goods but dross; more, Peril, on occasion, has been greeted “hail fellow well met,” and, with him as a welcome companion, •men have walked through the valley “bearing the toil, enduring the pain,” to the last extremity, and Death rather than submit to the tyranny of thralldom. Our institutions arose from the idea that liberty is the pearl of great price; to secure it, in the first place, and to preserve its beauty and strength afterward, our people “sold all they had” — goods, merchandise, prosperity, ease, blood, life, all! But we learn that the ideals of the Fathers were but vainglorious dreams — phantasmagoria arising amidst the turgid fumes of brains on fire with fanatic zeal. Times have changed! Civilization has advanced; we have walked forward into the brighter light of a new day, and, amongst its scintillant rays, we know of a truth that the Old Men but struggled in the grasp of a delusion and a snare. The social order has been awry and reversed. Property, and not Liberty, is the ultima thule towards which the human heart has beat, the goal to which the Nations have walked. Snatch the flame which enlightens the world from the hand of Liberty, and in return press upon her brow a golden crown, and proclaim to the world that henceforth her name is not Liberty, but Wealth, and that her mission is not to enlighten, but to make rich! A right of property is of higher dignity, flows from a higher and purer source, than a human right. Final authority has said that the hand of the Legislature falls impotent as with a palsy at the approach to the hither side of Property, but is strong to penetrate and confiscate and debauch throughout the realm and to the furthermost reaches of human Liberty. Notwithstanding a profound and well-laid respect for those ip authority over us, we are constrained to say that the effect of this proposition smacks much of tyranny and runs counter to the fundamental concept of a free government.
The judgment of the court rests finally and entirely upon the proposition that the council has the right to classify the objects of legislation, and that this is all the ordinance does. The right to classify, within proper limits, is not to be denied; but the right to discriminate we do controvert. The contention that the ordinance involves a valid classification is destroyed beyond remedy by the cases cited, and this becomes apparent from the analogy drawn between a penal and a tax measure above, unless we are seriously in earnest in asserting that the legislative power to discriminate against the citizens’ Liberty is broader than the power to discriminate against his Property.
The majority; of the court holds that under the ordinance in question a person who vends or displays, or even peddles, goods or produce not “raised or grown upon the property owned or rented by him, or under his control,” belongs in a different class from the class to which a person belongs who vends or displays, or peddles, goods or produce “raised or grown upon the property owned or rented by him, or under his control,” and that this so-called classification is justified under the authorities.
Now this exact classification was made in the statute held void in Ex parte Jones, supra. According to that statute a peddler who sold “poultry, vegetables or other country produce exclusively, fruit and fruit trees exclusively, not raised by him or his family,” belonged to one distinct class, and the peddler who sold “poultry, vegetables or other country produce exclusively, fruit and fruit trees exclusively, if raised or produced by the vendor or his family',” belonged to another class. The court held the act to be unwarranted class legislation. This means that there was no just distinction between the classes; that the fact that one man raised the produce sold by him, while the other did not, was no ground for a distinction, and that the so-called classification was not a classification at all. It was a discrimination. The majority of the court say that the statute was held bad in the Jones Case “because they excepted from the operation of the act other persons within that class.” We repeat that the only fact upon which the distinction between the two persons — or the two classes— in the statute there was that one man raised his own produce, while the other did not. Now the court, or anybody connected with the case at bar, has not contended that the classification attempted to be made in the ordinance in question rests upon any other distinguishing fact, and the result is exactly the same, whether the court agrees with us that the ordinance deals with two separate offenses or not. If such agreement is had, then the classification is this:
(1) A person, not a peddler, who vends or displays goods or produce, if not “grown or raised upon the property owned or rented by him, or under his control” ;
(2) A person, not a peddler, who vends or displays goods “if raised or grown upon the property owned or rented by him, or under his control”;
(3) A peddler who sells goods or produce, if not “raised or grown upon the property owned or rented by him, or under his control”; and
(4) A peddler who sells goods or produce, “if raised or grown upon the property owned or rented by him, or under his control.”
If the court does not agree with us in the respect stated, and as indicated in the opinion, then the classification is as follows:
(1) A person who vends and sells goods, etc., if not “raised or grown upon the property owned or rented by him, or under his control,” is a peddler and belongs to one class;
(2) If the same person vends or sells goods, etc., “if raised or grown upon the property owned or rented by him or under his control,” he would not be a peddler, and by reason of the facts stated would belong to a different class.
Under any and all of the classifications suggested, the only fact of difference is that one man raised or produced the goods sold and the other did not. We repeat that the fact upon which the attempted classification in this case rests is identical with that upon which the distinction was founded in the statute involved in the Jones Case. We regard it as pertinent here to call attention to • a misleading idea conveyed by the opinion, wherein it is said, “It is true that this court has uniformly held that ordinances levying an occupation tax on peddlers, which exempts from its operations other persons as peddlers,” etc., an examination of the statute involved in the Jones Case will show that it did not attempt to exempt “other persons as peddlers” in any way different from the manner in which this ordinance attempts to exempt “other persons as peddlers.” In the statute the tax was laid upon peddlers by name. The pertinent exemption was in this language: “Provided, further, that nothing herein contained shall be so construed as to include * * * traveling vendors of poultry, vegetables or other country produce exclusively, fruit and trees exclusively, if raised or produced by the vendor or his family.” The ordinance, we believe, does not denounce the offense alone against peddlers, but the majority of the court seem to construe it as applicable to peddlers alone. If this be true, is it not proper to read it as if it in terms prohibited peddlers from using the streets ? The exemption clause' of the ordinance reads: “Provided, however, that this section shall not apply to any person who himself offers for sale any products raised or grown upon the property owned or rented by him, or under his control.” If the tax statute then exempts “other persons as peddlers,” how or by what rule of logic can it be said that the ordinance does not exempt “other persons as peddlers, and, if the tax statute was void for that reason, upon what authority can it be said that the ordinance is valid, unless it be the intention of the court to say that the strict equality demanded in tax levies is not at all demanded when it comes to the infliction of punishment upon the citizen? We submit that the basis of the classification, so called, in the ordinance, is in no material respect different from that in the statutes construed in the other cases, and that the ordinance is clearly void in view of the authority of Ex parte Jones, Rainey v. State, Pullman Palace Car Company v. State, Ex parte Overstreet, Ex parte Woods, and G., C. & S. F. Railway Company v. Ellis, supra.
The foundation stone of the court’s judgment is the asserted legislative right to classify. As stated before, this right, within proper bounds, we do not deny. But what are the limits? Have they not been transcended here?
Says the Supreme Court of the Linited States in G., C. & S. F. Railway Company v. Ellis, 165 U. S. 159, 17 Sup. Ct. 258, 41 L. Ed. 666: “Arbitrary selection can never be justified by calling it ‘classification.’ * * * In all cases it must appear, not only that a classification has been made, but also that it is one based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification — and is not a mere arbitrary selection.”
Black, J., in State v. Loomis, 115 Mo. 307, 314, 22 S. W. 351, 21 L. R. A. 789, stated the rule to be this: “Classification for legislative purposes must have some reasonable basis upon which to stand. It must be evident that differences which would' serve for a classification for some purposes furnish no reason whatever for a classification for legislative purposes. The differences which will support class legislation must be such as in the nature of things furnish a reasonable basis for- separate laws and regulations.”
These principles are so well established in the various jurisdictions of the American Union, including our own, and their inherent justice, is so patent, that further citation of authority to the point were superfluous. In fact, the majority opinion concedes that the power to make classes can be exercised only when “some just basis” therefor exists. The question, “Does there exist a just basis?” immediately projects itself. Upon what specific facts does the supposed distinction rest?
We may dismiss from consideration “goods, wares, merchandise, * * * or other articles,” and deal only with “produce,” for this is the only class of subjects pertinent to the case. Looking, then, to the subject with which the ordinance deals, that is, “produce,” and the specific article involved in the case, to wit, “apples,” we find that the so-called classification rests alone on the fact of whether or not the seller has raised the apples. Does this one point of difference “bear a just and proper relation to the attempted classification”? Is this difference such as “in the nature of things affords a reasonable basis for separate laws and regulations”? To bring the question in its two respects to concrete form: Is there enough difference in apples offered for sale by the producer and those offered for sale by others than the producer to afford a reasonable basis for separate laws and regulations governing the sale of the two classes of apples? Or is there enough difference in the manner of the making of the sale of apples by others than the producer and the making of the sale by producers to afford reasonable ground for separate laws and regulations covering the two sales?
As to the first question, the opinion recites: “It is a known fact that products usually peddled are not so fresh or wholesome as those offered by the farmer who raises them and himself offers them for sale on the streets.” It might be appropriately remarked here that this carries the field of judicial knowledge to a remarkably extended point. The fact that there may be and are even peddlers who sell fresh produce is completely ignored; the fact that even farmers sometimes offer produce for sale that is not fresh is brushed aside as immaterial. With sublime contempt for those distinctive individual practices and idiosyncracies indulged by various members of every group of men— whether peddlers or just ordinary folks — all of each group are thrown together, and the mere fact that one group may be called peddlers and the other farmers is sufficient, per se, to prove that one group deals in stale produce, while the other’s produce is as fresh as the morning’s dew. The error in this assumption must be apparent at a glance, and, since we are able to point to affirmative evidence in the record to contradict it, there should be no hesitancy or impropriety in saying that it cannot be “a known fact,” because it is not a fact at all. Reason would indicate it to be a matter of proof in each sale as to whether the article was fresh or stale. No contention was made by the city that the apples sold by relator were in the slightest unwholesome. Respondent offered no proof whatever to that effect; on the contrary, the record affirmatively shows on page 11 that the apples which relator was offering for sale “were good sound ones.” If his apples “were good sound ones,” how could they be worse or more deleterious than those sold at the same time and place by the farmer? Could the farmer’s apples be better than “good sound ones”? If the usual practice of peddlers is as stated by the court, as a “known fact,” then evidently relator is an admirable exception, and this fact, coupled with that of his punishment notwithstanding, discloses both the il-logic of this phase of judicial knowledge and inherent injustice and discrimination of the ordinance.
Not only is the “known fact” disputed by the record, hut, since the court has departed from the record itself, we may say with perfect candor and sincerity that there is no difference between the apples offered for sale by relator at Hillsboro and those offered for sale by the farmers there. The apples sold by each, and by both, may, and frequently do, grow in the same orchard, and are gathered and offered for sale on the streets at the same time. To illustrate this, as well as to illustrate the unreasonableness of the discrimination, let us here assume as true a condition which frequently is true in real fact: A. resides about six miles west of Hillsboro in the Cross Timbers. He is a farmer, and upon his land has an apple orchard. B. lives upon the adjoining farm, but has no apple orchard. One day A. and B. decide to go to Hillsboro. A. loads a barrel of apples into his wagon; and B. buys a barrel of the same apples from A., loads them into his wagon, and they both go to town to sell the apples. They both reach the fire limits, and both stop their teams and wagons side by side; but at this point the city takes a hand and says to A. “Thou mayst,” and to B. “Thou shalt not.” Is it a “known fact” that A.’s apples are fresher than B.’s? Is there anything in the nature of the apples to justify this distinction? Surely the classification rests upon no sane basis, and its only adequate description is . that of rank discrimination as between the citizens.
Is there anything in the methods of carrying on the business that will justify the distinction? On this point the majority of the court says as a “known fact”:
(1) “The farmer or other producer who brings his own raised products to town only comes occasionally and does not remain long; whereas, the peddler takes his stand in the public street, or on the public square, in the early morning, and remains throughout the whole day.”
Counter to this assumption stands the record: In the first place there is nowhere the slightest intimation that there were any other “peddlers,” wrongfully so called, than relator, who used the streets. In. the second place, without conflict from any source, relator testified: “Many farmers sold at that time and place, and for a long time had been in the habit of selling, their own home-grown apples at the same place and under the same circumstances.” What, then, is the basis of the court’s conclusion that the peddlers would, if not prohibited, practically take charge of the whole street every day and from day to day throughout the year (and) monopolize the whole streets?
(2) “The filth that accumulates from the standing of teams and throwing the peel of fruits * * * makes more or less of a nuisance and a burden, which must be removed, and is, daily by the city authorities.”
Will the “filth that accumulates from the standing” of B.’s team be more or more objectionable than the “filth that accumulates from the standing” of A.’s team? Will the peels from one of B.’s apples be more of a nuisance or burden to be removed than would a peel from one of A.’s apples? Furthermore, so far as the record in the case is concerned, there is but one “peddler,” so called, at Hills-boro, while many farmers sold there.
(3) “We know as common knowledge that fire limits in towns and cities include only that part of the thickly settled and business portion. In case a fire breaks out within this territory, it is necessary that the streets be kept open, so that the proper fire department, with its apparatus, will not be obstructed in reaching the fire as quickly as possible. If peddlers were not prohibited from occupying the streets within such localities, they could take possession of the streets and obstruct the fire department in such a way as would be a menace to the whole business of the thickly settled portion of towns and cities.”
Well and good as a general proposition; but will the team and wagon of the peddler take up any more room or obstruct the streets more than will the wagon and team of the farmer? The record shows that the “county has always been willing, and the county authorities have always permitted, every person who desired to use its land outside of -said fence and railing for any purposes whatever, such as hitching teams, allowing wagons and vehicles of every hind to stand thereon, selling fruits and vegetables and all other products thereon." (Page 10.) Is it not a “known fact” that a farmer’s wagon and team requires about the same space as a peddler’s? If it is not a “known fact,” it is a fact ineontrovertibly proved 'by the record. Says relator: “The wagon in which I kept the fruit * * * which I sold was just an ordinary wagon of ordinary size, and I had a two-horse team hitched to it. I have frequently seen wagons and teams and other vehicles hitched and left standing for a long time upon the strip of land and the streets of the city of I-Iillsboro. This has been the indiscriminate practice of the public for many yeans, and the practice is still in use. These vehicles and teams were, and are, of all sizes, kinds, and' descriptions. The space occupied by my fruit wagon and team does not take up any more space than is used for almost any other purpose. Many wagons and vehicles left standing frequently upon the public square and streets of said city, and upon said strip of land, take up more space than is taken up by my wagon and team and outfit.” (Pages 10 and 11.) Let it be remembered, too, that there is but one peddler of produce at Hillsboro, according to the evidence, while “many farmers sold at that time and place,” and for years had been in the habit of doing so. Is the reasoning of the court borne out by the facts? If the record in the case is worth anything at all as against a hypothetical assumption, the conclusion cannot be avoided that the streets within the fire limits are obstructed many times as much by the exempted class as by the so-called “peddlers.”
In the numbered paragraphs above, we have set forth the “very reasonable reasons” why— the court says — “the municipalities should have, and do have, the right to make just such classification as was made by this ordinance.” These reasons (probably founded in a proper case), when analyzed in view of the record here, disappear as reasons; if they exist in any case, they do not exist here, for the simple reason that the facts destroy the very grounds upon which they could be applied. Whatever distinction there is in fact between the two groups of men and businesses, these distinctions; are all in favor of the peddlers, under the reasoning of the court; if the “reasons” have any application in this case at all, it would be to show that the terms of the ordinance should be reversed, and the peddlers exempted. The facts are that the classification is no classification at all; it is purest discrimination, brought about by the play of an arbitrary and unreasoning-spirit in the city council.
The real facts upon which the attempted classification rests are those held insufficient for that purpose in Pullman Palace Car Company v. State, 64 Tex. 274, 53 Am. Rep. 758. In that case the state sought to enforce an occupation tax of $2 a mile levied against persons, firms, or corporations owning or running any palace car, sleeping or dining car not owned by any railroad in this state. The Supreme Court in the discussion of the case said: “The inquiry arises whether a law which thus imposes a tax on others than railway companies, for the pursuit of this business, while it exempts railway companies therefrom, does not violate the provisions of the Constitution referred to. * * * Does the business done by persons or corporations owning such cars and running them on the roads of others, or the business done by persons not owning, but running, such cars on the roads of others, and business done by railway companies on their own roads with such cars, embrace the same class of subjects of taxation? * * * The subject of taxation is the thing or business done; the occupation followed, for and on account of which the taxes imposed on persons and corporations that pursue it. The business or occupation of the owners of such cars running them on the roads of others, and of those who are not owners, but run such cars on the roads of others, in so far as the particular occupation for which the tax is imposed is concerned, in no_ essential differs from that pursued by a railway company that runs its own cars of the same kind for the same purpose over its own road. The same acts and facts make the occupation in either case, and it looks to the same end and purposes. * * * There is no act or fact entering into the occupation of running such cax-s as are mentioned in the statute, over the road of another which does not enter into the occupation of the road owner who runs over his own road the same kind of cars for the same uses and purposes, from which the road owner can be withdrawn from the class on which the statute imposes the tax.”
A penal statute must, of necessity, operate against and be directed against acts and conduct, and not against persons. The law does not care whether a man is white or black, yellow or red, nor whether his name is Smith, or Jones, or Zoblowski, nor whether he is a farmer, merchant, banker or peddler, so long as his occupation is legitimate; but what it does care about is the citizen’s conduct. Uniformity, equality, is the first element of that concern. If certain acts or conduct of one man is i made criminal, all other like acts of all other men within the jurisdiction must be made criminal. The concern of the law is limited, also, to the immediate conduct denounced; remote circumstances and acts of the individual performed at another and different time and place and having no direct bearing upon the offensive conduct is beyond the purview. “The same act and facts” make the offense, by whomsoever committed. So long as the produce sold by the citizen is wholesome, we say that it is none of the city’s concern where the same was procured. The fact of whether the produce is raised by the seller is a matter that has been determined outside of the territorial jurisdiction of the city and long before the time of the sale. Manifestly there are no farms within the city. The farmer who has raised his produce and the man who has bought the produce for resale are in exactly the same position when they reach the city limits. Take the case of A. and B., put above; What difference is there between A. and B., so far as the city is concerned, as they drive across the city limits with their apples? None on earth or in reason; they are simply two plain citizens, each in the lawful possession of a barrel of good sound apples, gathered from the same trees at the same time. The city is concerned only with their conduct after they come within its limits, and they must both be governed by the same rules. To paraphrase the Supreme Court’s language quoted above, we say: “There is no act or fact entering into the occupation or business of selling the apples by one which does not enter into the occupation or business of selling the apples by the other, from which A. can be withdrawn from the class upon whom the penalty rests. If the things done constitute in one person the penal act or business, no one doing the same thing can be omitted from the class against whom the penalty runs without a violation of the constitutional provisions, even though the omitted class person may do more or other things than are necessary to constitute the penal conduct or business, and though that done in excess may within itself constitute a distinct occupation or business, however kindred in nature the occupation or conduct may be.”
It is unquestionably true, as stated by the court, that “the legislature may classify persons according to their business, and may apply different rules to those which belong to different classes, and that municipal corporations, when authorized by their charters, can also do this.” It is also beyond question that there must exist a material difference in the two businesses before they can be placed in different classes — a difference of such proportions as to justify a different system of laws applicable to each. We believe that no such difference exists to support the' “classification” of persons by the ordinance, and we are supported by former decisions of this court and of the Supreme Court, which this court now admits would condemn the ordinance if the very same “classification” were made for taxation purposes. These authorities do condemn the ordinance, for a man’s liberty is at least of as much importance as his property. Nor will a correct reading of the authorities cited as being contra in any wise militate against this position.
The question of class legislation or discrimination — the vital point here — was in no sense involved in Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668, or Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874. In the first case the sole and only question before the court was whether or not injunction was an available remedy against the enforcement of a void ordinance, and it was held that such remedy was not propei’, “unless it is made to appear that such enforcement would result in irreparable injury to property rights.” The court did not pass upon the validity of the ordinance; the .statement quoted from the case by this court was purest dictum, except as it bore upon t)he question of the remedy. Besides, the ordinance there was wholly different from the one here, because it was directed against all alike and contained no exceptions. And so of Ex parte Henson. These cases, we believe, simply hold that the city may regulate the use of its streets for vending purposes, and certainly they cannot be construed into authority for the proposition that the city, in making such regulations, may discriminate as between citizens.
Finally, the court says: “The question raised in this case has many times been decided adversely to relator’s contention by the courts of different states.” We reply that it has never been so decided by the court of any state that has a Constitution like or similar to ours. To emphasize this point, and to show further that they may be distinguished in principle from the instant case, we desire to refer to the cases cited by the court in support of the proposition last quoted.
State v. Montgomery, 92 Me. 483, 43 Atl. 13, is a decision by the Supreme Judicial Court of Maine upholding a statute levying a license tax upon peddlers, and provided that certain articles specified might be peddled without a license. A distinction between that statute and the ordinance confronts the reader at the very outset in this: The statute provided that certain ar-tidies might be peddled without license, while the ordinance allows one person to sell, and prohibits another person from selling, the same article. The court in that case speaks of the exceptions in this language: “The exceptions are the articles allowed to be peddled without license. * * * Again, the defendant claims that the statute in question is in violation of our own Constitution, in that it discriminates between citizens in this state. It is no objection that certain * * * articles are excepted from its provisions.” The defendant was charged with selling picture frames without a license, an article in no way related to the excepted articles.
Another conclusive argument against the decision as authority here is that the Constitution of Maine is absolutely devoid of the uniformity or equality clauses with reference to occupation or license taxes. The only constitutional provision as to uniformity of taxation is that “all taxes upon real and per- I sonal estate shall be apportioned and assessed equally.” Section 8, art. 9. Nor is there any other limitation upon the power of the Legislature with reference to taxation. Our Constitution, on the contrary, is specific upon this point. Still another reason, if other reasons are necessary, why that case .is not authority, is that it squarely conflicts with Ex parte Jones, Rainey v. State, Ex parte Overstreet, and Pullman Palace Car Co., v. State, supra. This can best be illustrated by a comparison between the statute involved in that ease with the one involved in the Jones Case.
To be specific: Says the Supreme Judicial Court of Maine: “But it is further contended that the statute is unconstitutional and void by reason of the provisions of section 6, which provides that ‘any soldier or sailor disabled in the War for the Suppression of the Rebellion, or by sickness or disability contracted therein or since his discharge from service, shall be exempt from paying the license fees required by this chapter.’ * * * Neither, we think, can there be any question of the validity of the statute which exempts them from paying fees for peddlers’ licenses.” 92 Me. 442, 43 Atl. 16, 17. This court in the Jones Case expressly declared the very same exemption in favor of ex-Confederates and ex-Federals to be sufficient to render a very similar statute unconstitutional and void. The same result obtains from a comparison of the other exemptions in the two statutes ; but we call especial attention to this one for the purpose of emphasizing the point that our Constitution requires equality and uniformity in the administration of the law, while the Constitution of Maine does not. It would follow as a matter of course that a decision by the Maine court is not authority in Texas on the same point; it should require no argument to show that a case of a foreign jurisdiction, which is fundamentally opposed to the decisions of our own court, and this very court, is not authority in this case.
People v. Sawyer, 106 Mich. 428, 64 N. W. 333, and People v. De Blaay, 137 Mich. 402, 100 N. W. 598, 4 Ann. Cas. 919, cited by the court, involved statutes levying an occupation or license tax on peddlers and exempting farmers, selling their own produce and mechanics selling the products of their own labor. Strange as it may seem to us, who have drunk in with the breath we breathe the spirit of equality in the law, the Constitution of Michigan contains no equality clause at all, except with reference to certain classes of property, and expressly, accordirig to the decisions of the courts of that state, sanations discrimination and inequality in taxation. The only constitutional provision relating to the subject is section 11 of article 14, which reads: “The Legislature shall provide a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law.” The Supreme Court of that state, in another case involving the peddler’s license statute, containing like exemptions, thus construed the constitutional provision: “A majority of the members of the court sitting in that case [Walcott v. People, 17 Mich. 68] held that the provision of the Constitution requiring taxes to be assessed upon property at its cash value did not operate to prevent the levying of specific taxes upon peculiar classes of business, as business, in which case the rule requiring a uniform rule of taxation was held inapplicable.”
It will be noted that the court in People v. Sawyer did not attempt to justify the ordinance' upon the theory of the right to classify; it calls the exemptions discriminations, eo nomine, and the validity of that ordinance is unquestionably referable to the power of discrimination given, in the first place by the Constitution, and in the second place by the city charter. Our Constitution is directly opposed to-that of Michigan upon this point, and we are unable to accept People v. Sawyer as authority. Besides this case, also, is in irreconcilable conflict with the decisions of this and other Texas courts in the cases cited above.
In re Nightingale, 11 Pick. 168 and Commonwealth v. Rice, 9 Metc. 253, were early Massachusetts .cases, and arose under a system of law as distinctive from our own as the night period is different from the day. To attract attention to the wide difference between their ideas of government and our own, let it he remarked here that the Constitution in force in that state when these cases arose contained a provision that the Legislature should require the “towns, parishes, precincts and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public ■ Protestant teachers of piety, religion, and morality, [and] to enjoin upon all the subjects an_ attendance upon the instruetions of the public teachers, aforesaid, at stated times and seasons.” Article S, part 1. The Constitution contained no requirement of uniformity in the matter of taxation, but gave the Legislature,_ and through it the cities, plenary power “to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident and estates lying within, the said ■commonwealth, and also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities whatsoever 'brought into, produced, manufactured, or being within the same.” Article 4, part 2. It follows that the questions of law involved in those cases are entirely foreign to this case; in the nature of things, there cannot •be even an analogy between the cases, and a “Blue Law” decision under a “Blue Law” Constitution is not authority in a case where a citizen has invoked the equal protection of law guaranteed by the Constitution of Texas.
Dutton v. Mayor, 121 Tenn. 25, 113 S. W. 381, 130 Am. St. Rep. 748, 16 Ann. Cas. 1028, involved an ordinance exempting farmers, etc., from the payment of a peddler’s license tax. The Constitution of Tennessee contained no ■equality requirement except as to the taxation of property. Section 28 of article 2 expressly provides: “But the Legislature shall have power to tax merchants, peddlers and privileges, in such manner as they_ may from time to time direct.” And by section 29 this power may be ■delegated to cities and towns. It thus appears that the Legislature, and through it the city council, may deal with peddlers as a class, and discriminate against them by reason of express constitutional warrant. The power of these bodies appears to be plenary. The Tennessee court in this case, and this court as well, cites Louisville v. Roupe, 45 Ky. (6 B. Mon.) 593. An examination of articles 171, 181, and other pertinent provisions of the Kentucky Constitution will show that Constitution to be practically the same on this point as the Tennessee Constitution. Our Constitution contains no such provision as that quoted, but, on the contrary, requires all taxes, occupation as well as others, to be equal and uniform.
This court also cites Dillon on Municipal Corporations (5th Ed.) § 706, and that section in turn cites In re Nightingale and Commonwealth v. Rice, already shown to be inapplicable, and Shelton v. Mayor of Mobile, 30 Ala. 540, 68 Am. Dec. 143, Tomlin v. Cape May, 63 N. J. Law, 429, 44 Atl. 209, Wartman v. Philadelphia, 33 Pa. 202, St. Paul v. Traeger, 25 Minn. 248, 33 Am. Rep. 462, and Trustees of Rochester v. Pettinger, 17 Wend. (N. Y.) 265. In none of these latter cases was the question of class legislation directly raised, and in but very few of them it was more than barely mentioned. The regulations there involved applied to all alike, and the questions were simply the power of the state or the city to regulate the use of streets, etc. Besides, the Constitutions of every one of those states are vitally different from that of Texas as applicable to the point in question. Read with their Constitutions, those cases are not even persuasive authority in Texas.
In addition to showing that the cases cited by the court are not authority in Texas, an examination of them has disclosed another very important matter. The cases all arose out of the attempted enforcement of license tax or occupation tax regulations; and if the ordinance hero in question were one to levy an occupation tax or license fee regulation, its invalidity, according to this court in Ex parte Jones and the other cases cited by us, is apparent at a glance. Can it not be said, then, that every case cited against relator’s contention is directly opposed to the decisions of our own courts? The various cases dealt with the same general subject-matter; that is, dealt with in Ex parte Jones, Rainey v. State, Ex parte Overstreet, and Pullman Palace Car Co. v. State, supra. The Texas courts clearly hold one way; the.courts of the other states hold another way. ■ Which shall be authority in Texas?
We submit that no respectable authority can be presented outside of the court’s opinion in this case to support the class legislation involv-' ed in the ordinance. It is not legislative classification; it is the fruits of an unchristian, immoral, and criminal spirit of unfairness and arbitrariness rampant in a city council drunk with “a little authority.”
We respectfully ask the court to grant relator a rehearing, and that his discharge from custody be by this court ordered.
Luther Nickels,
Attorney for Relator, M. L. Bradshaw.

PRENDERGAST, J.

Relator, by his attorney, has filed herein a very lengthy motion for a rehearing. There is but one assertion therein which we deem it either necessary or proper to mention. We quote that assertion: “In the majority opinion the court says: ‘The main contention by relator is that said ordinance is void, because it is class legislation; that it prohibits pedr dlers from selling on its streets, and authorizes other persons to sell on its streets, within said fire limits, any products raised on or grown upon their property, rented by them, or under their control.’ It is true that relator asserts that the ordinance involves class legislation in the most objectionable form and of the ‘purest ray serene’; but he makes no such contention as is stated in the latter part of the quoted portion of the opinion. He does mot claim to be a ‘peddler,’ and there cannot be found a scintilla of evidence in the record to show him to be such; and as the whole fabric of the opinion is shot through with this thread of error, and as the judgment appears, fundamentally, to rest upon an assumption not only dehors the record, but flatly contradictory thereof, we deem it appropriate, then, to discuss relator’s status in the purview of the ordinance.”

In the record before us the following is specifically agreed to by both parties as facts — not that evidence was introduced showing or tending to show it, but as facts — to wit: “On the 12th day of December, 1912, a warrant was duly issued out of the city corporation court of the city, being based upon a complaint in due form made and filed charging the defendant with vending and displaying goods, wares, and produce upon the streets of the city of Hillsboro embraced within the fire limits, and of peddling goods, wares, and produce upon such streets, when he was not then offering for sale products raised or grown upon property owned or rented by him or upon property under his control. Upon this warrant B. D. Hooks, the city marshal, arrested the defendant, and still holds him by reason of the authority of said complaint and warrant. The defendant on the 12th day of December, 1912, in the city of Hillsboro, Texas, and before the making of said complaint, did offer for sale and vend and peddle goods, wares, and produce upon the streets of the city embraced within the fire limits, to wit, on Elm street on the public square, and that such goods, wares, and produce were not products grown or raised upon property owned or rented by him or under his control, to wit, apples.”

It occurs to us that this shows, not only “a scintilla of evidence,” but it goes a little bit further, and we think is amply sufficient to show that, not only did relator use the streets within' the fire limits of the city of Hillsboro for the purpose of vending or displaying goods, wares, merchandise, and produce, but that he did offer for sale and vend and peddle goods, wares, and produce upon such streets, not grown or raised on property owned by him, or under his control, and that this shows he was a peddler.

Other than the very lengthy motion for a rehearing, in the opinion of the writer hereof, there is no other noticeable feature of it, except an uncalled-for and an unnecessary exhibition of ill temper.

The motion is overruled.

DAVIDSON, P. J.

(dissenting). As the ordinance charged to have been violated is set forth in the majority opinion, I deem it unnecessary to copy it. My Brethren have decided this case, resting it, in my opinion, upon erroneous lines. They base their conclusion, as I understand them, mainly upon the doctrine of the reasonableness of the ordinance. That disposes of the case upon an issue not primarily involved. I do not care to discuss that proposition; but I think it unreasonable, as all acts of legislative bodies are invalid which discriminate in favor of one and against others. The question here is: Does the ordinance discriminate between citizens? If it does, it is void, and the question of reasonableness has but little to do with it. I believe that, fairly construed, no legally safe conclusion can be reached otherwise than that the ordinance is discriminating in its nature in favor of certain citizens as against all others engaging in the same or similar lines of business and selling the same products, etc. The prevailing opinion seeks to avoid this by erroneous classification. The taxing power is not here involved. The question here is discrimination in vending things and selling on the streets, and not the question of selling without license.

Under the organic law every citizen in Texas is entitled to all the rights and privileges of every other citizen, and this applies as well to privileges as to rights. Bill of Rights, § 3; Harris’ Annotated Const, p. 50. The Legislature has no power to enact legislation contravening this provision of the Constitution ; much less has that body authority to empower municipal corporations to do so. That cities and towns may control streets does not authorize the creation of ordinances which discriminate in the control of such streets between the citizens of the municipality or those of the state. When an ordinance is passed, it must not discriminate against any one who may come under its operation. I do not care here to discuss the authority of cities and towns to control streets by means of reasonable ordinances, but would say no ordinance can legally stand,, or ought legally to stand, and cannot be reasonable, where it discriminates in favor of or against our citizenship. I understand that in these latter days there is a growing tendency towards the proposition that government is superior to the people and the' Constitution. This would hardly be asserted directly and explicitly; but there is a tendency in that direction. Of course, this is not correct, and, if carried to its legitimate conclusion, would be subversive of our constitutional form of government. Our people created this govermnent; the government did not create them. The government is our subject; ■we are not its subjects. The citizenship of Texas are the sovereigns, and “all power is inherent in the people,” and they, and they alone can make and unmake their government and Constitution. If they do not like their Constitution, they can make another; but legislative bodies — state or municipal— cannot make or change that instrument. This is plainly set forth in the Bill of Rights. Among other things set forth in the Bill of Rights clearly and emphatically is the reserved right and guaranty that every citizen has equal rights, and no man or set of men is entitled to separate public emoluments or privileges. Bill of Rights, § 3; Harris’ Annotated Constitution, page 50, for collation of cases. It is again emphatically emphasized in that document that no citizen shall be deprived of Ufe, liberty, property, privileges, or immunities, etc., except by due course of the law of the land. Bill of Rights, § 19; Harris’ Annotated Constitution, page 184, for cited cases.

To prohibit one citizen or class of citizens from engaging in a business under like or similar circumstances with all others similarly situated is plainly violative of the provisions of the Constitution. Ex parte Jones, 38 Tex. Cr. R. 482, 43 S. W. 513; Rainey v. State, 41 Tex. Cr. R. 254, 53 S. W. 882, 96 Am. St. Rep. 786; Ex parte Woods, 52 Tex. Cr. R. 578, 108 S. W. 1171, 16 L. R. A. (N. S.) 450, 124 Am. St. Rep. 1107; Gustafson v. State, 40 Tex. Cr. R. 71, 45 S. W. 717, 43 S. W. 518, 43 L. R. A. 615; Poteet v. State, 41 Tex. Cr. R. 268, 53 S. W. 869; Bolen v. State, 48 S. W. 1118; Carraci v. State, 48 S. W. 1118; Wilson v. State, 48 S. W. 1119; Owens v. State, 53 Tex. Cr. R. 108, 112 S. W. 1075, 126 Am. St. Rep. 772. It is useless to multiply the eases. These are sufficient.

This ordinance authorizes certain citizens to sell, etc., certain products, etc., and prohibits all others from engaging in the same business or to sell the same character of product or goods under similar circumstances. If this is not discrimination, I am rather at a loss to know what it takes to constitute discrimination. It is a small-sized monopoly, confined to certain citizens exclusive of all others; a miniature trust, created by municipal ordinance, confined to the favored few.

I do not care to elaborate this question. The above cited cases are clearly in point, and ought to settle the question. The Constitution prohibits this character of legislation, and this would be more than ample authority without eases. The Constitution is superior to city ordinances, and controls all legislative bodies of whatever magnitude, and as well the judicial and executive departments of government. I do not believe it would be seriously asserted that the legislative, executive, and judicial department combined have the power to set aside, override, or minimize constitutional authority or limitation. The eases cited by my Brethren on the questions decided in the cited cases may be correct as decided, but they are inapplicable to this case and the question here involved. Cases properly decided, if properly applied, are all right; but because properly decided on the question therein involved does not and cannot constitute them authority to sustain propositions not involved in those decisions. The question being different, the cases do not apply. Having lost sight of the doctrine of discrimination in legislation and in this ordinance, it is but natural the opinion should also lose sight of the inapplicability of the cases cited in the opinion. Having ignored the discrimination in the ordinance, my Brethren have cited inapplicable decisions involving other questions, and called them into service to do guard duty in this ease.

The ordinance here involved is that under which relator was arrested, with its discriminating qualities, and not the ordinance referred to in the Henson Case, 49 Tex. Cr. R. 177, 90 S. W. 874. The two ordinances are entirely different. The premises being wrong, the cases do not fit, and the conclusion reached is necessarily erroneous. The Henson Case, supra, does not support my Brethren in their' opinion, nor can it be held as authority in this case, as will be plainly seen from reading it. The ordinance discussed in the Henson Case made no exception; hence there was no discrimination. It applied to all citizens alike, and the punishment provided was for any and every citizen of Texas who happened to come within its denunciation. The question of class legislation, therefore, was not in that case. The question here is class legislation, and pointedly so on the face of the ordinance. The same may be said of the case of Wade v. Nunnelly, 19 Tex. Civ. App. 256, 45 S. W. 668, as of the Henson Case. The question in that case was: Could the writ of injunction be made available to prevent the enforcement of a penal ordinance? It was claimed in that case that the ordinance was in law void; therefore it was sought to enjoin its enforcement by writ of injunction. The court decided that the writ of injunction was not available, it being a criminal case, “unless it is made to appear •that such enforcement would result in irreparable injury to property rights.” The validity of the ordinance was not necessarily involved as a question to be decided, and as I understand that decision the court did not decide the case on that question. There were some expressions as to the power of the city council to ordain reasonable ordinances; but that is obiter dicta, and this whether that statement in the opinion was right or wrong from a legal standpoint. The question was not necessary to a decision of that case, as it is not, I think, in this case, as to the power of a city to control its streets. The question is that in the control of those streets there should be no discrimination as against one class of citizens or in favor of another class of citizens; that the control must be exercised with equal rights to all and without class legislation. The ordinance in the Wade v. Nunnelly Case was unlike the ordinance here involved. That ordinance was intended to apply to all alike, without discrimination in favor of or against any citizen or class of citizens. That decision, therefore, does not sustain the majority opinion, nor has it any applicability to the question here involved; that is, discrimination. I do not believe my Brethren would cite approvingly the decision in the Wade v. Nunnelly Case on their decision of the injunction question, for it is directly contrary on that question to their opinion in Ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W. 334, and Ex parte Looper, 61 Tex. Cr. R. 129, 134 S. W. 345, Ann. Cas. 1913B, 32. The Wade v. Nunnelly decision is in conformity with the writer’s dissent in Ex parte Allison, 48 Tex. Cr. R. at page 641, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684. See dissenting opinions in the Ex parte Allison Case, supra, and Ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W. 334. I do not care to discuss the two cases, Wade v. Nunnelly and Ex parte Henson, further. They do not. apply here, nor support the prevailing opinion, in this case.

It perhaps was not necessary here to dissent, as my views on these questions are so well known to the legal profession and the bench; but I do so because I feel persuaded that my Brethren are in error in their application of cited cases in support of their conclusion. So far as I have been able to ascertain, this seems to be an opinion on pioneer lines, and may be made to become the progenitor of another line of decisions, which, in my judgment, are erroneous and out of harmony with our theory of government; wherefore I have deemed it advisable to say as much as I have said.

Hon. Luther Nickels, counsel for relator, has filed an able and exhaustive review of the cases cited by my Brethren, and has so fully, in my judgment, answered the opinion, I believe it right and proper that his argument should be perpetuated, and it, therefore, will be in substance printed with the report of the case. There is much in it of value to the bench and bar of the state.

For the reasons indicated, I enter most respectfully this dissent from the decision of the case. The relator ought to be discharged, and the ordinance held invalid.