124 Iowa 464 | Iowa | 1904
In the mayor’s court of the city of Waukon the defendant was found guilty upon an information charging that in said city upon a day named he “ did sell, procure, prescribe for, and fit spectacles designed to improve the eyesight of certain persons, contrary ”'to the terms of an ordinance of said municipality. From the judgment assessing a fine against him, the defendant appealed to the district court,, where-a verdict was directed in his. favor. From tbia judgment of the district court-the city appeals. •
The defendant is a traveling optician. He does not carry spectacles or eyeglasses for sale, but examines and tests the eyes of persons applying to him therefor, and writes the description of the glasses required upon a “ prescription
Section 4. Any person who temporarily without the actual intent to establish in this city a permanent lawful business, who engages, prepares for engaging or attempts to engage in selling or offering for sale any goods, wares, confections, drinks, merchandise, medicines, notions or other things of value, in or from any store, shop, building, stand, vehicle, box, booth, stall or place in the city, or who conducts or attempts to conduct any business in whole or part of, by public auction or outcry, within less than one year after engaging in business, or who does not remain in business a sufficient length of time for the city to have his stock and business regularly assessed and taxed, and the taxes paid thereon, or who engages in soliciting or taking retail orders for future delivery of goods, wares and merchandise about the city, exr cept orders for daily delivery from retail stores, shall be considered a transient merchant under this ordinance, excepting only persons taking orders for books, magazines or newspapers, or selling newspapers on the streets' and persons selling or officers of the court or the law, duly appointed and qualified according by law so to do. The fact of residence or nonresidence shall not be considered a test as to whom shall be considered a transient merchant.
Section 5. All traveling or itinerant specialists such as dentists, aurists, oculists, opticians and the like who ex
The trial court, discharged the defendant upon the third ground stated, and we will therefore give it first attention. We regard it very clear that the defendant was not a merchant, in the ordinary, usual, and commonly accepted meaning of that word. As defined by Webster’s International Dictionary a merchant is “ (1) one who traffics on a large scale, especially with foreign countries; a trafficker; a trader. «- * * (3) One who keeps a store or shop for the sale of goods; a shopkeeper.” It has also been defined as “ one whose business is to buy and sell merchandise; one who buys to sell again, and who does both not incidentally or occasionally, but habitually, as. a business.” Jewell v. Board, 113
Assuming, then, that defendant is not a merchant, in the ordinary acceptance of the term, can the city, by ordinance, bring him within that definition? The statute (Code, section 700) gives to cities “power to * * * define by ordinance who shall be considered transient merchants; to regulate license and tax their sales; * * * to regulate, license and tax peddlers, * * * itinerant doctors,” etc. Undér this provision, the appellant insists that, even if the appellee would not have been chargeable as a merchant in the
It is said, however, that this view is not in harmony with our holding in the late case of Cedar Falls v. Gentzler, 123 Iowa, 670. Deference to that opinion will show that the defendant’s liability was not based on the ordinance definition of the word “ merchant.” On the contrary, it was there argued and held that he was a merchant, under the general and proper definition of the word, independent of the ordinance. The defendant in that case was engaged in the business of soliciting orders for groceries, and thereafter making delivery of the goods. He sent the orders to a wholesale house, accompanied by payment for the aggregate cost at wholesale rates, whereupon the goods were shipped to his address, and he distributed them to his customers, collecting the agreed retail price. He was dealing solely upon his own account, buying in quantities at wholesale, and selling in smaller quan tities at retail — precisely what every other grocer in the city was doing; his method of business varying from theirs only in that, instead of keeping a stock on hand, from which to fill the orders of his customers, he first secured his orders, and then purchased the necessary stock to fill them. The case is not parallel in fact or principle with the one we are now considering.
Whether the ordinance, if otherwise valid, is unenforceable against the defendant because of the interstate commerce provision of the federal Constitution is an important question, upon which the decisions of the courts are by no means clear or harmonious; and, as we find the judgment below may be affirmed on other grounds, we do not undertake to -rule upon it.
The conclusion reached by the learned trial court upon the lack of power in the’ city to tax the defendant as a merchant accords with our views, and the order withdrawing the case from the jury and ordering the discharge of the appellee is affirmed.