State v. Mason , 94 Utah 501 ( 1938 )

I agree that the Produce Dealers Act, being chapter 4, Laws of Utah 1935, is a constitutional exercise of the legislative powers. That agriculture is, in this State, a business affected with a public interest, cannot be doubted. The State is interested in the welfare of its agricultural producers, not only because they make up a large part of the population, but because it is essential to the public welfare that the people be assured of a constant and sufficient food supply, and not dependent on foreign sources of supply. And, unless the farmer is assured such protection in his markets as to enable him to continue production without a constant loss, the whole population will be bereft of the means of sustaining life.

But there is involved in the instant case another question wherein I cannot agree with Mr. Justice WOLFE. A complaint was filed before the justice of the peace. Defendant demurred to that complaint as not stating a public offense. The demurrer being overruled, it was again urged in the district court, and the action of that court in overruling it is assigned as error. I think the assignment is well taken and, though the act itself is constitutional, this cause must be reversed because the complaint does not charge the commission of a public offense by defendant. The act in question, chapter 4, Laws of Utah 1935, is a license act; it requires a license to engage in the business of dealing in agricultural products, and such license shall entitle the holder thereof to conduct the business of dealing in agricultural products until the 1st day of January following its issuance, unless sooner revoked for cause. The penalty provisions declare that any person is guilty of a misdemeanor who assumes or attempts to act as a dealer without a license. Of course, what the Legislature meant was "who, without a license, assumes or attempts to act as a dealer." The pertinent parts of the act read:

"The term ``dealer' means any person other than a commission merchant who for the purpose of resale obtains from the producer thereof possession or control of any farm products, except by payment to the producer at the time of obtaining such possession or control, of the full agreed purchase price of such commodity in lawful money of the United States; provided, however, that the term ``dealer' as herein defined shall not be construed to include those who are regularly licensed under the laws of this state to sell tangible personal property exclusively at retail." Subsection (g), § 2.

"No person shall act as a commission merchant, dealer, * * * without having obtained a license as provided in this act. Every person, acting as a commission merchant, dealer, * * * shall file an application with the state board of agriculture for a license to transactthe business of commission merchant, dealer, * * * and such application shall be accompanied by the license fee herein provided for each specified class of business. Separate applications shall be filed for each class of business." Section 5.

"Such application shall in each case state the class, or classes of farm products applicant proposes to handle," etc. Section 5.

"Such application shall further state the principal business address of the applicant in the state of Utah and elsewhere," etc. Section 5.

"Such applicant shall further satisfy the state board of agriculture of his or its character, responsibility, and good faith in seeking to carry on the business stated in the application." Section 5.

"Licenses issued under the provisions of this act shall entitle the holder thereof to conduct the business described in the application therefor" etc. Section 5.

"For the purpose of enforcing the provisions of this act, the state board of agriculture is authorized to receive verified complaints against any commission merchant, dealer, * * * or any person, assuming or attempting to act as such," etc. Section 9.

"Every dealer must pay for farm products delivered to him or it at the time and in the manner specified in the contract with the producer, but if no time is set by such contract, or at the time of said delivery, then within thirty days from the delivery or taking possession of such farm products." Section 19.

"Any person is guilty of a misdemeanor who assumes or attempts to act as a commission merchant, dealer, broker, or agent without a license," etc. Section 21.

It seems that the rational construction of the act means that one who is licensed to engage in the business of buying and handling agricultural products for resale upon a credit basis is a dealer; that the unlicensed person engaging in such business is not a dealer but a person assuming or attempting to act as adealer which is the offense made penal by the act. The complaint filed before the justice set forth:

"* * * that W.B. Mason on or about September 5th, 1935, at the County of Box Elder, State of Utah, did commit the crime of acting as a dealer without a license, a misdemeanor, as follows:

"That said defendant did then and there wilfully and unlawfully, for the purpose of resale, obtain from R.S. Rice, a producer, possession and control of 1000 bushels of barley without at the time of such delivery paying the full agreed purchase price of such commodity in lawful money of the United States."

The so-called new form of procedure, the short form of indictment or information and complaints, is provided for by chapters 21 and 23 of title 105, R.S. Utah 1933, as newly enacted by chapter 118, Laws of Utah 1935. Violations of the Produce Dealers Act fall into two classes: Those which merely permit a forfeiture of license, and those which are classed as misdemeanors. The statutes above referred to cover only informations and indictments. In 1937 the Legislature amended section 105-11-1 by enacting chapter 143, Laws of Utah 1937, referred to by Mr. Justice WOLFE as a basis for his holding that the complaint is sufficient against demurrer. A reading of that chapter, however, will clearly demonstrate that this complaint is wholly defective and insufficient to state an offense. The amendment of 1937 did not alter or change the language or provisions of law as to offenses such as the one involved here. It is an exact duplicate of section 105-11-1, R.S. 1933, as far as that section went, but has added to that section the further provision that "in cases of public offenses triable upon information, indictment * * * the complaint, the right to a bill of particulars etc., shall be governed by the provisions of chapter 118, Laws of Utah 1935, the Short Form Procedure Act. By its express terms, therefore, it is limited to felonies and indictable misdemeanors. The reason for this is evident — to make the proceeding before the magistrate conform to the authorized proceeding in the district court.

But, except for offenses triable upon information and indictment, the complaint must state:

"(1) The name of the person accused, if known; or if not known and it is so stated, he may be designated by any other name.

"(2) The county in which the offense was committed.

"(3) The general name of the crime or public offense.

"(4) The acts or omissions complained of as constituting the crime or public offense named.

"(5) The person against whom or against whose property the offense was committed, if known.

"(6) If the offense is against the property of any person, a general description of such property." Chapter 143, section 105-11-1, Laws of Utah 1937, p. 254.

And to further emphasize the matter, section 105-57-2, relative to procedure in justices' courts, reads:

"Proceedings and actions before a justices' court for a public offense must be commenced by complaint under oath, setting forth the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint."

It is therefore evident that complaints for simple misdemeanors must still conform to and be governed by the rules and decisions that have always prevailed. It must state the general name of the crime or public offense and also the acts or omissions complained of as constituting the crime or public offense named. And, of course, the words used in setting forth the general name of the crime or public offense is not a setting forth of the acts or omissions complained of as constituting the crime or public offense named. And so the complaint is fatally defective in that it does not allege or set forth that Mason did not have a license; neither does it allege that he did the act or acts for which a license is required, to wit, engaged in,conducted, or transacted the business of a dealer. It merely charges the making of a single, sole, isolated purchase, which Mr. Justice WOLFE concedes would not be within the act when he says it must be given a sensible construction and interpretation in meeting the argument that it would bar one farmer from buying a few feeder cattle from another on credit. I heartily agree with that statement by Mr. Justice WOLFE, because a single, isolated transaction, while it may be evidence of doing business, is not of itself sufficient to constitute "engaging in business," the right that is given by the license.

"Engaging in business" or "conducting the business of" implies of necessity a continuity or attempted continuity of a line of activity. Webster's New International Dictionary defines "business" as follows:

"* * * that which busies, or engages time, attention, or labor, as a principal serious concern or interest; specifically, (a) constant employment; regular occupation; work. (b) Any particular occupation or employment habitually engaged in, esp. for livelihood or gain."

Bouvier's Law Dict., Rawle's Third Rev., defines business as:

"That which occupies the time, attention, and labor of men for the purpose of livelihood or profit, but it is not necessary that it should be the sole occupation or employment. * * * The doing of a single act pertaining to a particular business will not be considered engaging in or carrying on the business, yet a series of such acts would be so considered. Lemons v. State, 50 Ala. 130;People v. Com'rs of Taxes of New York, 23 N.Y. 224."

This definition is also approved in Industrial Fibre Co. v.State, 31 Ohio App. 347, 166 N.E. 418; Bankers' HoldingCorporation v. Maybury, 161 Wn. 681, 297 P. 740, 75 A.L.R. 1237; Morgan v. Salt Lake City, 78 Utah 403, 3 P.2d 510;Nelson v. Stukey, 89 Mont. 277, 300 P. 287, 78 A.L.R. 483.

"Carrying on a business" does not mean performance of a single disconnected business act, but means conducting, prosecuting, and continuing by performing progressively all acts normally incident thereto, and "doing business" is defined as conveying the idea of business being done, not from time to time, but all the time.Hutchings v. Burnet, 61 App. D.C. 109, 58 F.2d 514; Mente v. Eisner, 2 Cir., 266 F. 161, 11 A.L.R. 496.

Bear in mind that we are concerned here with a matter of pleading and not a matter of proof. It is sought to charge defendant with a violation of an act requiring a license to engage in a certain business. It seems too clear to require argument that to charge such an offense it is necessary to allege that defendant was "engaging in the business" for which a license was required and that he had no such license. Those are the facts which would constitute an offense and must therefore be charged in the complaint. This being a license act, defendant is subject to prosecution not for doing a specified act which is totally prohibited, but for failing to obtain that which authorized him to engage in, or carry on, a business, before he engaged in or carried on that business. No such elements are involved in the charge in the complaint. Among cases which show the necessity for such allegations and how to plead violations of such acts, we may cite Leps v. State, 120 Ga. 139,47 S.E. 572; Commonwealth v. Nex, 13 Grat., Va., 789; State v.Willis, 37 Mo. 192, 193; State v. Cox, 32 Mo. 566; State v. Jacobs, 38 Mo. 379; 25 Cyc. 636-7, and cases there cited;Commonwealth v. Smith, 69 Ky. 303, 6 Bush 303; Mork v.Commonwealth, 69 Ky. 397, 6 Bush 397.

But the decisions of our own court have settled the fate of this complaint. In the cases of State v. Hale, 71 Utah 134,263 P. 86; State v. Topham, 41 Utah 39, 123 P. 888; State v. Gesas, 49 Utah 181, 162 P. 366, we have construed the statute as it still exists in respect to complaints in the justices' courts for misdemeanors. Such rules not having been met in this case, it follows that neither the district court nor the justice's court ever acquired jurisdiction to try the defendant, although we hold the act itself to be constitutional.