75 Iowa 74 | Iowa | 1888
— The cause was tried by the court without a jury, and it is submitted upon appeal to this court upon the findings of fact and conclusions of law by the district court, which are as follows:
“ For several years a business association or firm, known as the ‘ Adams Manufacturing Company,’ has kept a retail store or ware-room in the city of Davenport, and a stock of miscellaneous house-furnishing goods therein for sale, on which stock it has been taxed by the city in the annual tax levy on taxable property, and has also paid a retailer’s license tax under the city ordinance*75 providing therefor. At the time of and before the commencement of this prosecution; the defendant Rice was in the employ of the said Adams Manufacturing Company, which employed him and a number of other persons to call on citizens of Davenport at their houses or places of business, and solicit orders for goods of the various kinds kept for sale by. said company; said solicitors usually carrying with them for exhibition a sample or samples of one or more of such classes of goods, and said Rice was actually engaged in soliciting and taking orders. When an order was obtained it was filled by said company by delivery from their stock of goods above mentioned. Sometimes the identical sample carried by the solicitor for exhibition was, if desired by the customer, sold and delivered to him by the solicitor. But it is not satisfactorily proved that this had ever been done by this defendant, Rice. At the time of said Rice’s arrest by a police officer of said city, preliminary to this prosecution, he was found on a street of said city, having in his possession a clock from the stock of said company, which he was taking to a resident in said city, at her residence, who had informed another employe of said company that she wished to purchase a clock; and said defendant was about to visit her, with said clock as a sample, in order to solicit her order for a clock, to be sold to her by said company. Neither the defendant nor the company, at the time of beginning this prosecution, held any license as a peddler or hawker from said city. The ordinance of said city on which the prosecution is founded, so far as material to the case, is as follows (ch. 28, sec. 9, Rev. Ord. of City of Davenport, of 1884):
“ ‘ Sec. 9. No person shall hawk or peddle within the limits of this city any goods, wares, merchandise, or other articles, save and except newspapers arid farm or garden produce raised by the seller, without first having procured a license therefor.
“ ‘ (a) The charge for said license shall be as follows: For one day, two dollars; for one week, five dollars; for one month, ten dollars.
*76 “ ‘ (5) Said license shall be procurde in the manner provided in section two hereof.
“‘(c) Soliciting orders for future delivery of goods shall be deemed and taken to be peddling within the meaning hereof; and the burden of proof, where the fact of soliciting is shown, shall be upon the defendant, and he will be required to show that the terms or provisions of this section were not by him violated.
“ i(d) Any person found guilty of violating any of the provisions of this section shall be fined in a sum not exceeding twenty-five dollars, and shall be imprisoned until the same is paid.’
“ On the foregoing facts the court is of the opinion, as matter of law : First. That the facts do not show that the defendant was a ‘peddler’ or ‘hawker,’ within the meaning of the clause of the city charter authorizing the city to license, tax and regulate * * * hawkers, peddlers, etc. Town of Spencer v. Whiting, 68 Iowa, 678; Com. v. Farnum, 114 Mass. 267. Second. That said facts do not show any violation by said defendant of any valid provisions of said ordinance. Third. That the city council had no power, under the city charter, to enact by said ordinance that ‘soliciting orders for future delivery of goods shall be deemed and taken to be peddling, within the meaning hereof; ’ such soliciting not being ‘ peddling,’ within the proper meaning of said word as used in the charter. Mays v. Cincinnati, 1 Ohio St. 272. Fourth. Defendant is entitled to judgment of acquittal herein.
[Signed] “J. N. Rogers,
. “Judge Seventh District.”
It appears from the statement of facts that the “Adams Manufacturing Company ” is a resident mercantile establishment occupying a store or warehouse, with its stock therein for sale, the same as other resident merchants. It employed the defendant and others to call on citizens of Davenport and solicit orders for goods of the various kinds kept for sale by said company. These solicitors usually carried with them samples of the goods offered for sale, and, when an order was
Affirmed.