39 Fla. 637 | Fla. | 1897
I. It is insisted by the plaintiff in error that the in•dictment was bad for duplicity, in that it charged him with two substantive offenses, viz: hawking and peddling; that while a hawker is necessarily a peddler, a peddler is not a hawker, unless and until he begins to attract attention to his wares by outcries or other device, and that the Legislature did not use the words interchangeably in the statute under consideration, but used them in a different sense as is evidenced by the language “hawkers and peddlers shalffmc7¿ pay,” etc. We have failed to find a single case at law where the supposed distinction pointed out by plaintiff in error has ever been enforced, or even recognized, except in the remarks of Chief-Justice Shaw, in the case of Commonwealth vs. Ober, 12 Cush. 493, where he said “the leading primary idea of a hawker and peddler is that of an itinerant or traveling trader who carries goods about in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale, and sells them in a fixed place of business. Superadded to this (though, perhaps, not essential) by a ‘hawker’ is generally understood one who not only carries goods for sale, but .seeks for purchasers either by outcry, which some
II. It is also insisted that the indictment was bad because it failed to allege that the defendant sold, or offered for sale, any of the articles mentioned therein.
IIL It is farther insisted that the facts agreed upon ■do not prove the allegations of the indictment: (a) that the defendant, if subject to any license, was a person or dealer traveling from place to place, required to pay a license of $50, and should have been indicted as such; (b) that defendant can not be considered a peddler unless he sold, or offered to sell, to the public generally, and (c) it is suggested that we read the cases of Robbins vs. Shelby County Taxing Dist., 120 U. S. 487, 7 Sup. Ct. Rep. 592, and Asher vs. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1, in connection with the fact that the storehouse from which the provisions sold by defendant were obtained, is located in the State of Alabama, from which we infer that defendant contends that, as applied to his case, our statute is inoperative as an interference with interstate commerce.
A. To give the last clause of the section of'the statute now under consideration its full natural meaning, would bring it into direct and irreconcilable conflict with a previous clause of the same section imposing a license of $300 on hawkers and peddlers. The obvious legislative policy and intent was to tax hawkers
B. The evidence shows that the defendant engaged in the business of traveling about from place to place, carrying with him goods, wares and merchandise which he offered and sold at retail. There can be no question that this constituted his business that of a hawker and peddler, within the ordinary and popular meaning of those terms (Bishop’s Statutory Crimes, sec. 1074; Fisher vs. Patterson, 13 Pa. St. 335; City of South Bend vs. Martin, 142 Ind. 30, 41 N. E. Rep. 315, S. C. 29 L. R. A. 531; Emert vs. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367), unless it is relieved of that character by the fact that the goods were sold only to employes of his principal. We are cited to the case of Vicksburg and Meridian Railroad Company vs. State, 62 Miss. 105, where it was held that under a state of facts very similar to those in the present case a railroad .company was not liable to a tax for the privilege of running “a trading car,” the court disposing of the case by remarking that the company under such circumstances was not a trader within the popular meaning of that word, nor was its car a “trading car” taxable under the provisions of the code of that State; that laws imposing-privilege taxes were to be construed in favor of the-citizen, and no occupation was to be taxed unless clearly within the provisions of such laws. The same-
C. The cases referred to by plaintiff in error under this head have been carefully reviewed by the Supreme Court of the United States in the comparatively recent ■case of Emert vs. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367. A short quotation from that case will dispose of this point. Mr. Justice Gray, speaking for ■the court, said: “The defendant’s occupation was offering for sale and selling sewing machines by going from place to place in the State of Missouri, in a
The judgment is, therefore, affirmed.