63 Pa. 168 | Pa. | 1869
The opinion of the court was delivered, November 15th 1869, by
The first and second assignments of error raise the single question whether a licensed pedlar who hires a servant to drive his wagon is liable for the penalty in the Act of 28th March 1799, which provides that if a pedlar shall lend or otherwise dispose of his license, he shall be liable to a penalty of fifty dollars. The purpose of the Act was to prevent the licensee from transferring his license to another. The license confers a special privilege to one possessing certain prescribed qualifications to travel as a pedlar on foot or in a wagon; and the object of the Act was obviously to prevent a substitution, by a transfer of the license to any one not possessing the legal qualification to peddle. It is the transfer of the use of the license by loan or sale, or by any arrangement for the benefit of the transferee, which is the prohibited act. But a servant employed to drive the pedlar’s wagon and sell for him, is not a bailee or transferee of the license. He takes no title to it by loan, hiring, or sale, or by any arrangement amounting to a disposition of it; but merely performs the business of the pedlar for the benefit of the latter, and not of himself. It cannot be said that the pedlar has either lent him his license, or has disposed of it to him.
It will not do to reply, that by hiring an unqualified person as a servant, for instance an alien or a person not of good moral character; the same mischief would ensue as by lending the license or disposing of it, and that, therefore, it falls within the spirit of the act, for this is a penal law, and the defendant must be brought within its letter. The action is not against Hill, the hired man, but was brought against Gibson the pedlar. As to Hill the act of 1840 provides a penalty for peddling without a license. He clearly would not be protected, by exhibiting the license of another person; unless we should hold that the license is not a special personal privilege. This we cannot do in the teeth of the several acts requiring that a pedlar shall be a citizen of the United States, of honesty and of good moral character, and who, from loss of limb or other bodily infirmity, is disabled from procuring a livelihood by labor; otherwise dishonest and unqualified persons might be hired.
The judgment is therefore reversed.
