Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-12-11
UNCONSTITUTIONAL.
So Says Full Bench on Hawk
ers-PeddIerS Act.
The Rescript States That the Stat
ute Shows Discrimination.
No One Can Be Punished for REFUSING
to Pay License Fec.


cial court of Maine, Wednesday, de-
olared the hawkers' and peddlers' act
whereby they are obliged to pay a Ii
cense fee before they can do business
in the State as unconstitutional and
that no one can be punished for re-
fusins to pay the fee. Thousands of
persons are involved in this matter and
the decision is one of the most impor-
tant rendered by the highest tribunal
in this State in recent years. The case
is Il Somerset one, that of State of
Maine VS.. Charles. w. Mitchell, appel
liant from the decision of IL municipal
court. The rescript is drawn by Jus
tice Emery, the full text of which is as
follows:
/. The federal constitution in
amendment XIV, the last clause of the
first section, and the constitution of
this State in section one of article one
affirmatively guarantee TO all persons
an equality of right to pursue any law
full occupation under equal regulation
and protection by law, whatever the
difference in their personal powers, at
tributes, conditions or POSSESSIONS
,. While these constitutional pro-
versifying its legislation to meet and
eGuaiize diversities i'm different kinds of
occupations. such diversities must re-
really exist, inherent in the subject
matter lcgislated upon. to justify any
Legislative discrimination. A merely
arbitrary classification not based on
actual differences in kind is forbidden
by the constitution.
). The discrimination sought to be
made in the haWkers' and peddlers'
act, laws of 1901. chapter 277 of sec
ton four. between those who own and
pay taxes Oh a stock in trade to the
amount of $500, and those who pay a
less tax on their stock in trade lex
emptins the former from paying Ii
cense fees. while requiring the latter
TO pay theIn) is a mere arbitrary dis
elimination not based on any inherent
difference in kind, and offends against
that equality of right established by
the fundamental law.
4. BY reason of such attempted UNI
constitutional discrimination no one
can be required to pay the license fees
named in said act or be punished for
refusing to pay them.
Other rescrpts announced, Wednes-
day, We're as follows:
Knox County.
G. f. Meservey, Judge of Probate VS..
Il. X. Ealloch ct ais.
Rescript by Wiswell, Chief Justice.
In this State, it is well settled, in
the absence of a statute to the con-
trary, in accordance with the common
law rule. that only the uEadministered
property OF the inteState vests in the
administrators de bonis non that is, the
goods, effects and credits which were
the property of the intestate at the
lime of his deceaSe. and which remain
in specie, unaItered or unconverted by
any act of the administrator, or the
proceeds received by him from the sale
Of any such property. which have been
kept intact and which have not been
commingied with the administrators
own money.
AS only such unadministered prop
erty of the intestate. and the uncon-
vcrtcd proceeds of property sold vest
in an administrator de bonis non. he
can institute, a suit against his prede-
cessor and his surcties only in respect
10 such property. Except as to the I'M
administered estate he is not a per
son Interested personally or in any
official capacity" within the meaning
of chapter ~. section 10 of the revised
statutes. which authorizes such a per
son to maintain "A suit upon a probate
bond after his interest has been spe-
officially asccrtsined by decree of the
Judge of probate. nor a party inter
csted'' within the meaning Of section
ts Of an. same CHAPTER which provides
that til. judge Of probate may author
iZe such q party TO commence SUIT on
the probate bond.
AS there Is no claim i'm this case that
any Of the property of the interstate
remains in specie in the possession OF
the former administrator. or that the
balance of the proceeds received by
linn from the sale of real estate has
been kent i'm its hands by itself, I'M
commingled with his own or other
money. the action cannot be main
tained.
But the person legally Interested.
within the meaning of the two sections
above referred to. as creditor, widow,
next of kin or otherwise. are not with
out ample remedy. Being so interest
cd such persons can maintain an ac
ton upon the probate bond by proceed
ing i'm the manner provided by statute.
Jud.mept for the defendant.