24 Ga. App. 16 | Ga. Ct. App. | 1919
Plaintiff in error was arraigned before the mayor of the Town of Cadwell, charged “with the offense of selling and delivering goods; for the said F. W. Alspaugh, on the 10th day of June in the year of our Lord 1918, in the town aforesaid, did then and there unlawfully and with force and arms . . sell and deliver goods without business license, by selling, delivering, and collecting for 10,000 Beyno cigarettes to Cadwell Drag Company, and by selling, delivering, and collecting for other goods to Jenkins & Company and Parkerson & Company of said city, contrary to the laws of said town.” A demurrer was filed to the accusation, and the demurrer was overruled. Upon the hearing before the mayor the following facts were agreed upon: “On the 10th day of June, 1918, the defendant, F. W. Alspaugh, sold to the Cad-well Drug Company in Cadwell, Georgia, said town being a municipal corporation in the said county of Laurens, and the said Cadwell Drug Company being a merchant engaged in a retail business in the town of Cadwell, 10,000 Beyno cigarettes, and on the same date sold and delivered to Parkerson & Company and Jenkins & Company a certain quantity of chewing tobacco. The Cadwell Drug Company was a merchant buying goods from manufacturers, wholesale merchants, jobbers, their agents, representatives, and others, and selling the same to the retail trade, and not for the consumption of the Cadwell Drug Company, and the price at which said cigarettes were sold was $5 per thousand, and when sold the same were delivered to the said Cadwell Drug Company and other purchasers, and upon the consummation of the sale and upon delivery the defendant collected $49 in settlement of the bill; and the other two parties buying the tobacco on the same day were each merchants engaged in the retail merchandise business, and said tobacco was
“It was further admitted as true that the Town of Cadwell had the following ordinances, to wit: ‘Section 23. Any person or persons who shall carry on any trade, occupation, or business in the Town of Cadwell for which a license has been required for such trade, occupation, or business, whichever it may be, shall be guilty of the offense of violating this ordinance.’ And from the ordinance passed January 11, 1918, is the following: ‘Be it ordained by the mayor and town council of the Town of Cadwell, Georgia, and it is hereby ordained by authority of same, that the following licenses and taxes be levied and collected in the town for the year 1918.’ And subdivision C of the item specified is the following: ‘Cigarettes or cigarette paper, selling, furnishing, or storing the same, either wholesale or retail; tobacco, either wholesale or retail, $10.00.’ And it was provided further, to wit: ‘All business or trade not herein provided for will be fixed by mayor and council. Be it further ordained by the mayor and council that any person or persons violating any part of the license ordinance shall be punished as prescribed in section 5 of the Penal Code of the town.’ And section 5 reads as follows: ‘Any person or persons violating the ordinances of the Town of Cadwell made by [ ?] punished by fine, imprisonment, or work on the streets of said town, one or more of such punishments may be imposed, provided said fine shall not exceed fifty dollars ($50.00), and such imprisonment or time of labor shall not exceed thirty days.’ It was further admitted as true that there was no wholesale grocery business or other business dealing by wholesale in cigarettes, cigars, or tobacco, in the Town of Cadwell; it was also admitted as a fact that the ordinances introduced into the record are all the ordinances or by-laws of the Town of Caldwell relating to the charge made against the defendant, and that said Town of Cadwell has no other ordinance relating to the charges made or covering the same, and that the charges made were not in violation of any other ordinance.”
The defendant introduced J. H. Bailey, who swore in part: “I
The trial resulted in the conviction of the accused, and he carried the case by writ of certiorari to the superior court. The certiorari was overruled, and Alspaugh excepted.
The third and fourth grounds of exception will be treated as abandoned, neither of them being argued in the brief of plaintiff in error.
The principle announced in the'following quotation is the same as that under discussion: “Tl}e defendant’s occupation was offering for sale and selling sewing machines, by going from place to place in the State of Missouri, in a wagon, without a license. There is nothing in the case to show that'he offered for sale any machine that he did not have with him at the time. His dealings were neither accompanied nor followed by any transfer of goods, or of any order for their transfer, from, one- state to another; and were neither interstate commerce in themselves, nor were they in any way directly connected with, such commerce. The only business or commence in which he was engaged was internal and- domestic; and,' so-far as appears, the only goods in which he was dealing had
We think the following principle, announced in the first headnlate of the decision in Duncan v. State, 105 Ga. 457 (30 S. E. 755), absolutely settles the instant case: “The interstate commerce clause of the Federal constitution has no application to sales of goods in this State, when it appears that the same had been manufactured in another State, shipped in quantities to an agent of the manufacturer residing in Georgia, by him deposited in a warehouse, and from thence delivered on retail orders obtained by a traveling agent of the manufacturer. Emert v. Missouri [supra], and authorities cited.” See also Price v. City of Atlanta 105 Ga. 358 (31 S. E. 619).
Judgment affirmed.