167 Mich. 417 | Mich. | 1911
This case is before this court upon exceptions after conviction and before sentence. The case originated in justice’s court. The charge against the respondent, dated the 8th day of November, 1909, was that theretofore, to wit, on the 1st day of August, 1909, at the county of Berrien, and for ten days preceding that date, one David J. Stewart did travel from place to place within the county of Berrien, State of Michigan, for the purpose of taking orders for the purchase of goods, wares, and merchandise, by sample lists and catalogues, without having then and there obtained a license as a hawker and peddler, as required and provided by chapter 136 of the Compiled Laws of Michigan of 1897, as amended. The respondent stood mute when arraigned in justice’s court, and upon conviction there he appealed to the circuit court, where the conviction here complained of occurred.
“Noperson shall be authorized to travel from place to place within this State, for the purpose of carrying to sell or exposing to sale any goods, wares, or merchandise, or to take orders for the purchase of goods, wares, or merchandise, by sample lists or catalogues, unless he shall have obtained a license as a hawker and peddler in the manner hereinafter directed.”
By the terms of section 5329, 2 Comp. Laws, a violation of this statute is made a misdemeanor, and it is provided that upon conviction thereof before any court of competent jurisdiction the offender shall be punished by a fine of not more than $50 and costs of prosecution, or by imprisonment in the county jail for a period not exceeding three months, or by both such fine and imprisonment, in the discretion of the court before which the conviction may be had.
Upon the trial in the circuit court, the evidence tended to show that the respondent had for many years lived in the city of Chicago, 111., and had been engaged in the running of a general store there, carrying a general stock of goods amounting to about $3,000 or $4,000. This store appears to have been in charge of respondent’s wife, brother, and son, while the respondent has spent most of his time for the past several years in Michigan, soliciting orders and selling goods, which were shipped into Michigan from his store. He has never obtained nor procured a license as required by the statutes above referred to. The course of business seems to have been that the respondent would ship these goods to St. Joseph in car load lots, and included therein were flour, sugar, coffee, tea, soaps, etc. The sugar was put up in packages of 25, 50, and 100 pound sizes, and the sugar was packed together. Teas, coffees, flour, and many other articles were put up in packages varying in size, and placed in the car. Each kind of goods was packed separately; that is, all coffee in
We think the main questions in the case to be considered under the assignments of error were embraced in objections to all testimony made by respondent’s counsel upon the trial. These objections were:
(1) That the complaint and warrant set forth no crime known to the laws of the State of Michigan.
(2) That the complaint and warrant do not negative or show that the defendant was not selling his own work or production by sample; nor that he was not peddling meat or fish; nor that he was not a merchant, and was conducting a regularly established mercantile business in the county of Berrien for at least one year previous; nor that
(3) That the law of the State of Michigan mentioned in the complaint and warrant in this case, and upon which such complaint and warrant , are made, is unconstitutional for the following reasons: That such law is in violation of section 8, art. 1, of the Constitution of the United States, which vests in the Congress of the United States the power to regulate commerce between the States; and also in violation of section 2, art. 4, of such Constitution, which provides that citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States; and also that such law is in violation of article 1 of the fourteenth amendment to the Constitution of the United States, which provides that no State shall make or enforce any law which abridges the privileges or immunities of the citizens of the United States, nor deny to any person the equal protection of the laws. Because such law discriminates against the citizens of different States, and is in restraint of interstate commerce in this: That such law expressly exempts from its operation any merchant who has been conducting a regularly established mercantile business in any county of the State for a period of at least one year previous; and also provides that any wholesale merchant shall not be prevented by anything therein contained from selling to dealers by sample without any license.
(4) Because no proceedings were had, as appears by the complaint and warrant in this case, and such complaint and warrant were not issued until after 60 days from the time in which the offense mentioned in such complaint and warrant were alleged to have been committed.
It is also urged in the assignments of error that the court erred in not confining the testimony to transactions occurring within the ten days limited in the complaint and warrant; and that the court erred in its charge to the jury.
The further case cited by counsel, that of Brennan v. Titusville, 153 U. S. 289 (14 Sup. Ct. 829), cited in the Bunker Case, is a case where picture frames were sold only by sample, were manufactured in Illinois, and the goods were sent by express, either to the purchaser or to the agent, and the moneys collected and sent to the manufacturer. Here the respondent solicited orders, and shipments were made in car load lots in bulk, unidentified, and consigned to the respondent. Refused goods were returned to the car, or a warehouse or storehouse kept and maintained by respondent, and new orders were filled and goods sold from this place. None of the orders was kept separate, nor was any identification mark placed upon any of the goods to distinguish them, or to indicate that they .belonged to any particular order or person; and the sales were really made in this State. Many authorities could
The circuit judge held, and so charged the jury, that, where the goods were shipped in bulk, consigned to respondent, and no mark upon any of the goods to indicate that they were for any particular order, or any particular person, the respondent was not within the protection of the interstate commerce law. There was undisputed evidence at the trial that at the car the respondent carried on a part of his business, as well as at the storehouse. We think the holding of the circuit judge finds support in the cases above cited.
In 1897, Act No. 248 of the Public Acts of that year was enacted, which was held unconstitutional by this court in Rodgers v. Kent Circuit Judge, 115 Mich. 441 (73 N. W. 381), for the same reason that is urged against the amendment in Act No. 225, Pub. Acts 1907, to wit, that it discriminated against a nonresident of the State. If it is true, as is urged, that Act No. 225, last above referred to, is unconstitutional for the same reason, then section 5330, 2 Comp. Laws, remains in force.
*424 “Every person who shall be found traveling and trading as aforesaid, and who shall refuse to produce a license as a hawker or peddler to any officer or citizen who shall demand the same, shall, for each offense, forfeit the sum of ten dollars.”
Then follows section 53316, which provides that no prosecution for the recovery of any penalty imposed for any violation of the provisions of this chapter, relating to hawkers and peddlers, shall be maintained, unless it shall be brought within 60 days after the commission of the offense charged. Respondent’s counsel urges that this last section applies to the offense charged in this case. We do not so read the statute. The provision clearly relates to prosecutions for the recovery of the penalty, and has no application here. This offense being a misdemeanor will be governed by the general statute with reference to the limitation of actions.
As the offense charged in the complaint and warrant was alleged with a videlicit, the prosecution was not confined to the exact day alleged. The record does not disclose that respondent asked that the prosecutor should elect as to the date upon which he relied, and we do not think this question is open. We find no error in the ruling of the court in receiving evidence of actual sales. They tended to show that the respondent was engaged in the business of hawking and peddling.
We shall not consider all of the exceptions relating to the charge of the court, for the reason that the circuit judge, under the undisputed evidence in the case, found that the respondent had violated the statute, in his opinion, and so stated to the jury, giving the jury, however, the privilege of retiring to their room, selecting a foreman, and returning a verdict. This privilege was exercised by the jury, and they returned a verdict of guilty. A careful reading of the record satisfies us that the conclusion reached by the circuit judge was the correct one, and it is not important to consider other parts of the charge; the jury having reached the same conclusion.