People v. Smith, 147 Mich. 391

147 Mich. 391 | Mich. | 1907

Ostrander, J.

(after stating the facts). For reasons given in the opinion above referred to, the specific findings of fact and law made by the court below are not considered. The finding that respondent is guilty, as charged, is treated as a general verdict.

That respondent was a peddler seems not to be disputed. His first contention, which is that because the ordinance in terms excepts persons selling vegetables, fish, meat, or farm produce, and bakers who deliver bread and pastry to customers, from its provisions, it is therefore invalid, is ruled against him by People v. Sawyer, 106 Mich. 428. See, also, People v. Baker, 115 Mich. 199.

. His second contention raises a more serious question. If respondent is actually, and we may add, for reasons given later on, in good faith, engaged in interstate commerce, it is not to be doubted that the license fee demanded is in effect a tax upon such business, which the municipality had no right to lay. Robbins v. Taxing District, 120 U. S. 489; Brennan v. City of Titusville, 153 U. S. 289; People v. Bunker, 128 Mich. 160. The single question is, Was he engaged in interstate commerce? Usually, this is a question of law to be answered by the court. But it may occur that it should be answered accordingly as inferences are drawn from undisputed facts warranting more than one inference, or from disputed facts. Good faith is a conclusion drawn from facts, and the bona tides of commercial transactions has, in several instances, entered into the determination of questions of like nature. Austin v. Tennessee, 179 U. S. 343; Cook v. Marshall County, 196 U. S. 261; Kimmell v. State, 104 Tenn. 184. From the facts proven or admitted upon the trial, this court may and does assume the existence of a further fact not proved at the trial, which is that the Grand Union Tea Company has. upon its voluntary application been admitted to do business in this State upon the footing of corporations organized under the laws of the State. Otherwise, it would appear that this corporation was conducting a general, retail, mercantile business at 12 points within the State without having complied with the laws of the State. The statute (3 Comp. Laws, § 8574) imposes a tax upon corporations, domestic and foreign, doing such a business in the State, and avoids all contracts made by them until the tax is paid. The act is construed to be not applicable in cases where foreign corporations do business in the State merely by selling goods through itinerant agents, and delivering commodities manufactured outside of the State. Coit & Co. v. Sutton, 102 Mich. 327 (25 L. R. A. 819); M. I. Wilcox Cordage & Supply Co. v. Mosher, 114 Mich. 64. See, also, Moline Plow Co. v. Wilkinson, 105 Mich. 57. It is evident that respondent is not concerned, in fact, about the payment of the license fee or whether the goods which he sells come to him from a general stock kept within or without the State. He has a continuing, local, retail trade. The business which he carries on is like interstate commerce in this: That the goods for which he takes orders are sent from outside the State, and are the property of a corporation organized in another State. It is unlike interstate commerce, in that the business is essentially a local retail business, the packages are not such, as are usually made up and handled in the ordinary course of actual commerce, nor made up for any particular person, and the owner of the goods has been admitted to the State, upon the footing of domestic corporations, and is actually carrying on the same business at various points in the State, in some places out of its stores, in others by peddlers. The method employed in sending goods to respondent is an attempt to evade a local regulation affecting alike the agents of all corporations admitted to do business in' the State, and not a good-faith engagement in interstate commerce. The respondent is really doing the same business as that considered in City of Muskegon v. Zeeryp, 134 Mich. 181, in which case an agent of this company was the respondent. See, also, City of Alma v. Clow, 146 Mich. 443. It is clear, too, that he sells some goods, and distributes premiums, out of stock on hand. The business so carried on would be in any case within the principle announced in Machine Co. v. Gage, 100 U. S. 676; Emert v. Missouri, 156 U. S. 296.

We might rest our decision, affirming the conviction, upon the facts last stated. We are not required to do so, since we are of opinion that respondent is not engaged at all in interstate commerce, but is engaged in peddling goods for a corporation, which has, for the purposes of this case, the status of a domestic corporation.

The conviction is affirmed.

Grant, Blair, Montgomery, and Moore, JJ., concurred.