Commonwealth v. Gardner

Opinion,

Mr. Justice Williams :

The defendants were employed at a salary, by a manufacturing company in Rhode Island, to sell an article of merchandise called “soapine.” They came into the county of Schuylkill in the regular course of their employment, and, as they say in the History of the Case in their paper-book, “ were in the county temporarily, for the purpose of selling this article, as the agents of the manufacturers.” When they had completed their canvass of the county of Schuylkill, they would, if continuing in the employment of the manufacturers, move on to another county, and subject its citizens to the same system of house to house visitation and personal solicitation.

By § 1, act of April 17, 1846, P. L. 364, the sale of foreign or domestic goods, wares, and merchandise in the county of Schuylkill, by any person or persons, as a hawker or peddler, is forbidden. The defendants were arrested under this act while engaged in selling “ soapine” from house to house in Mahanoy City, and indicted. On the trial, the jury rendered a special verdict finding the defendants guilty of selling soapine from door to door, as the agents of the manufacturers, at a salary, with no personal interest in the goods or their proceeds, and submitted these facts to the judgment of the court. The theory of the defendants appears to have been that the manner in which their sales were made was of no consequence, if they did not own the articles sold, but acted as the agents of the owners. But it is the manner of sale that makes a peddler. Webster defines a peddler as “ one that carries about small commodities oil his back, or in a cart or wagon, and sells them.” In the Law Dictionary of Rapalje and Lawrence, the word is defined thus: “ Peddler: A person who carries goods from place to place for sale.” Whether the goods are the property of him by whom they are carried and offered for sale, or of another, who employs the seller, is of no possible consequence. The business of the itinerant vender is the same in either case, and so is the inconvenience and annoyance he inflicts on others. The merchant or store-keeper is a resident, has a fixed place of business, where his goods are shown to those who come in search of what they need, where he can be reached by process, and compelled to make good his guaranty of the quality of his wares. The peddler is a transient, with no fixed place of business, who seeks customers by invading their homes, and makes sales by persuading people to buy what they do not need, and who, by the time he is wanted to answer for his representations and engagements, is out of sight and out of reach of process. It is this matter of tracking a laboring man or woman into the home, and laying siege to him or her by an unscrupulous and self-possessed stranger, who is after money and has no delicate scruples about the manner in which he gets it, that has made the peddler a dread in the country and in the villages, and has led the law makers in this and other states to put the business under strict regulations when it is not wholly forbidden. In this case, the jury found that the defendants were doing that which exactly fills the definition of peddling; that is, carrying about from house to house small-packages of goods and offering them for sale. It only remained for the court to pronounce upon the legal effect of the facts, found, and enter the appropriate judgment against the defendants as peddlers.

The next point taken by the defendants is that, under the-constitution of the state, an owner of goods has an indefeasible-right to carry them when and where he pleases in search of buyers. This conclusion seems to be drawn from a paragraph in the declaration of rights which asserts that all men have certain inherent and indefeasible rights, among which is that of “acquiring, possessing, and protecting property.” But a distinction must be taken between the right and the manner of acquisition. The highwayman engagés in his business with a view to acquire property, but the trouble is that his methods of acquisition are open to objection. The same is true of the gambler and the lottery dealer. Some business men have been known, in their zeal to acquire property, to use false weights and measures, but the law lajcs its'hand on the methods they employ. It does not agree that the end justifies the means, and for that reason it punishes the highwayman, the gambler, the lottery dealer, and the cheat, while it recognizes their constitutional right to “acquire, possess, and protect property.” Our laws relating to peddling are directed, not against the right of acquisition, but the manner in which some people exercise that right; not to the right of an owner to sell his goods, but to the manner in which he may sell them. Our peddling laws are therefore not in violation of the constitutional rights of the owners of goods, but are a wise exercise of the police power over the manner in which goods, wares, and merchandise shall be sold.

I do not regard the sale of the natural products of the soil by the farmer or gardener by whom they are raised, as affected by the laws relating to peddlers. Farmers are- not within the mischief which these laws were intended to remedy, except as they are the victims of that mischief. They are not traders or travelers, in any legal sense. The carriage of the surplus products of the farm or garden to a market town, or from house to house, is not peddling, but is incidental to their business as farmers. Peddlers are forbidden to sell “goods, wares, and merchandise.” These words were never intended to include farm products in the hands of the farmer; nor is the transportation of such products to a market for sale, or to regular customers who are supplied by the grower, the sort of business at which the laws relating to peddling are directed. The business they were intended to reach is very plainly indicated in § 1, act of March 80, 1784, 2 Sm. L. 99, which declares: “ Whereas, many idle and vagrant persons may come into this state, and, under pretence of being hawsers and peddlers, may greatly impose upon many persons,” etc. The act then provides for protecting the public from such fraudulent practices upon them, by forbidding any person to engage in the business of peddling without a license. It is very clear that this prohibition was not directed against the farmer and his truck wagon, but against the itinerating vender who carries his goods on his back, or in a cart or wagon, in search of customers. It was directed against him for the protection of the public against the impositions practiced by the class of dealers to which he belongs, in regard both to “the quality and price of goods” carried by them, and against the commission “of felonies and misdemeanors ” by the vagrant persons who traveled the country “under pretence of being hawkers and peddlers.” But, while we are of opinion that farmers and gardeners are not within the letter or the spirit of our laws relating to peddling, this can in no way serve the defendants, for they are not farmers, and “soapine” is not a natural product of the soil. The special verdict assures us that it is a manufactured article, produced by the Kendall Manufacturing Company, all of whose stockholders are non-residents of Pennsylvania, and whose factory is located in the state of Rhode Island.

On these facts, so found, the third and last question presented in this case is raised, viz., is not the sale of “soapine ” from door to door in Mahanoy City inter-state commerce? This is broadly asserted, and the position is taken that our laws on the subject of peddling are an invasion of the exclusive right of congress, under the federal constitution, to regulate inter-state commerce, and therefore void. We have understood inter-state commerce to refer to the free interchange of commodities between citizens of the different states, without regard to state lines. If we are right about this, then the laws relating to peddling do not interfere with such interchange, and cannot be an invasion of the authority of the United States. They erect no barrier at the state line, provide for no inspection or stoppage, and levy no tax on the introduction into or transportation through the state of any sort of property whatever. The citizen of another state may come into Pennsylvania when he will and where he will, stay as long as he chooses, open as many places for the sale of his goods as he may see fit, and enjoy the same measure of freedom in regard to the conduct of his business as a native citizen. But, when he conies within the state permanently or temporarily, he is under the protection of its laws, and the correlative duty of obedience rests on him. Iiis rights are equal to, but not above, those, of the citizen. He has no more right to sell intoxicating drinks without a license, than a citizen; no better, right to sell cigarettes to children, or oleomargarine to customers, in violation of law, than a citizen. He has no better right to take a pack on his back, or a horse and cart, and engage in the business of peddling, than a citizen. To hold the contrary would be subversive of law and order, and would render the possession of the police power useless to the state. If it is true, as is now asserted, that the itinerant Stranger who threads the country roads and haunts the mining towns, carrying a pack or box, filled with sham jewelry and worthless watches, to sell to those who are credulous enough to believe his representations, for many times their real value, and who, as soon as he has “ gone through ” a neighborhood, moves quickly out of reach,—if it is true that such a person is the ward of the federal constitution, engaged in inter-state commerce, with the power of the government of the United States interposed between him and the police power of the state, it must be admitted that we have stumbled on a startling and unlooked-for result of the investment of the general government with the power to regulate commerce. Fortunately, the federal courts do not so hold. They distinctly recognize the police power of the states, and their right to forbid altogether the sale of such articles as are injurious: Powell v. Pennsylvania, 127 U. S. 678. The same doctrine was held in the Kansas cases arising under the prohibitory feature of the constitution of that state. We think the questions in this case were rightly decided in the court below, and

The judgment is affirmed.

Case Details

Case Name: Commonwealth v. Gardner

Court Name: Schuylkill County Court of Quarter Sessions

Date Published: Mar 17, 1890

Citation: 133 Pa. 284

Docket Number: No. 28

Court Abbreviation: Schuylkill Cty. Ct. Qtr. Sess.