268 Mo. 501 | Mo. | 1916
-This suit was brought in the mayor’s court of El Dorado Springs, charging defendant with violating an ordinance of said city m engaging in the business of a canvasser or agent by taking orders or selling goods to customers without taking out a license authorizing him so to do. He was convicted as charged and his punishment assessed at a fine of $20. He appealed to the circuit court of Cedar County, where the judgment below was affirmed. He thereupon perfected an appeal to the Springfield Court of Appeals and filed therein an application for a transfer of the cause to the Supreme
The material parts of the ordinance in question are as follows:
“Section 1. There is hereby levied a license tax upon the various business, trades, callings, occupations, objects and persons in the city of El Dorado Springs, Missouri, hereinafter named, and the same shall be licensed and regulated as hereinafter provided.
“Canvassers or agents taking orders or selling goods to customers, by canvassing or going about from house to house. . . . $20.00 per year.
“Peddlers ... $1.00 per day or $15.00 per month.
“Section 2. Any person, or firm or corporation who shall carry on or engage in any trade, business or occupation or calling in this city, herein required to be licensed, without first having obtained and paid for said license, or shall fail, neglect or refuse to comply with any other provision of this ordinance, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than five dollars nor more than one hundred dollars.”
The formal sufficiency of tíre complaint charging defendant" with a violation of this ordinance is not questioned. The defendant at the time of his arrest was going from house to house carrying samples of aluminum wares for kitchen and cooking purposes, exhibiting same to prospective purchasers, many of whom agreed to buy from him wares similar to the samples and to pay for same upon delivery after
A comparison, or if there be differences, a contrast, of the facts in these cases with those in the in
The judicial meaning of the term £ £ commerce ’ ’ as first definitely declared in Gibbons v. Ogden, 9 Wheat. 1, is that it is not traffic alone, but “it is intercourse.” Comprehensively speaking, it describes the intercourse between nations, but here it is confined to the intercourse between persons, firms or corporations of the different States.
“Importation,” says Sanborn, J., in Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. (C. C. A.) 1, “is the indispensable element, the test, of interstate commerce.” Generally speaking, therefore, wherever there. is a negotiation, contract, trade or dealing between persons of different states in which importation is an essential feature or forms a component part of the transaction it may he denominated “interstate commerce.” [Text Book Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678.]
Necessarily there are limitations upon this definition due to differences in the facts in particular cases. In no case has it been held that the act of Congress regulating interstate commerce is to be so construed as to interfere with the power of a State to fully regulate its police and taxing powers and its domestic trade, provided, of course, the State act does not conflict with the plain provisions of the Federal statute. Cases seeming to hold to the contrary will be found upon analysis to contain other controlling facts governing the court’s conclusion and not merely an interference with the powers named.
The term here involved and necessary to a determination of this case having been defined, a review of the rulings of this court thereon is in order.
In Jewel Tea Co. v. Carthage, supra, an agent of a Chicago firm took orders for teas, coffees, etc., from residents of the city of Carthage. These orders were mailed by the agent to his principal in Chicago, where each article ordered was separately wrapped and the packages placed in a box and shipped to the agent, who, upon receipt of same, delivered them, thus separately wrapped, to the purchasers and received the money therefor, which he forwarded to his principal.
In Kansas City v. McDonald, supra, a packing company in Indiana sold its products in Kansas City, Missouri, through a solicitor or agent by having him take orders for same. These orders were forwarded by the agent to the company to be filled and his participation in the matter ended. If the orders were filled the goods were shipped direct to the buyers and the collections were made of them by the company. The agent, finding that the business wait more than he could personally transact, organized a force of men to solicit for the company who reported to him, but forwarded all orders to the company at Indianapolis as having been made by the agent, and the goods were shipped and collections made as before. The force of men thus employed increasing in numbers, he opened an office in Kansas City where they reported to him and received instructions and directions
In the instant case the defendant solicited persons to buy the goods, but no sales were made to the persons solicited until he had paid for the goods or had given a guaranty for their payment and the same had been shipped to him, whereupon he sold them to the persons he had theretofore solicited if the goods were found by such persons to be satisfactory. The difference between these cases is readily distinguishable. In the Fleming and Jewel Tea Company cases the contracts for the purchases became binding when the orders for the goods were received and accepted by the respective corporations in other states, and the transactions became inter-, state in theiry character upon the shipment of the goods. In the Kansas City case the transactions constituted sales by samples and the nature of same became interstate upon the shipment of the goods as in the Fleming and Jewel Tea Company cases. The court held that the occasional solicitation of sales to retailers by the agents, being without compensation, or mere gratuities, did not change the general nature of the transactions. ,
This was the condition in the cases we have reviewed. In the instant case, however, the interstate character of the shipments ceased upon the delivery of the goods by the foreign corporation to the defendant, and the goods thereafter not moving in interstate commerce, the transactions became local in their nature.
There is evidence that the defendant was the agent of the foreign company. The testimony in this regard consists of declarations. This will not suffice to define defendant’s relation. His status is fixed by the facts. In each instance the payment of the purchase price was guaranteed by the defendant when the goods were ordered. They therefore became his property upon their delivery to. him. We find no semblance of agency here, but all the characteristics of an independant transaction in which the defendant was one of the principals. His attempted ascertainment before each order as to who would purchase from him and his limiting his orders to these prospective buyers does not militate against this conclusion. It is not unusual for independent traders to limit their purchases from jobbers or wholesalers to the demands of their patrons, and he is fortunate in trade who is able to determine the extent of these demands beforehand.
Nor does defendant’s contract for rebates from the company in the event of his failure to sell any
If it- be further contended that the general power to tax and regulate granted by the statute following a specific enumeration of the- extent of same is to be limited to the rule usually applicable in such eases, viz., that the general words are to be limited in their meaning to the particular words preceding them, it will be sufficient to say that while canvassers may not, strickly speaking, be ejusdem generis with merchants or peddlers, they are sufficiently so .within the meaning, of the statute here under consideration to form an exception to the general rule. This is especially so when we take into consideration the character of the legislation manifest in the statute and ordinances in this case, viz., the exercise of the city’s police power. As was said by this court in St. Louis v. Herthel, 88 Mo. l. c. 130, the rule of interpretation “is not to be so applied that the city is to be held powerless to tax any calling not expressly named in its charter by its proper name.” This ruling authorized the licensing of “architects,” not then enumerated in the statute as one of the callings to be regulated.
St. Louis v. Woodruff, 71 Mo. 92; Kansas City v. Vindquest, 36 Mo. App. 584; and Wonner v. Carterville, 142 Mo. App. 120, afford illustrations of like exceptions to the general rule in the construction of ordinances similar to the one here in question.
In the cases of Independence v. Cleveland, 167 Mo. 384, and Kansas City v. Grush, 151 Mo. 128, there was no authority in the charters or ordinances of the municipalities to regulate and license the vocations therein named and the facts were different from those
"While it would have restricted the field of technical criticism if the ordinance had employed the terms of the statute, its conformity therewith is sufficient to require the defendant to comply with same.
In view of what has been said the judgment should be .affirmed and it is so ordered.