State v. Byles, No. 742

No. 742 | Wyo. | Nov 10, 1913

Scott, Chi®]? Justic®.

' On October 12, 1912, an information was filed in the District Court of Sheridan county, which, omitting the caption, signature and verification, is as follows:

“Comes now D. L. Gogerty, county and prosecuting attorney of the County of Sheridan and State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the Court and gives the Court to understand that C. A.- Byles, late of the county aforesaid, on or about the 5th day of October, A. D. 1912, at the County of Sheridan in the State of Wyoming, did expose and offer for sale unlawfully manufactured goods, to-wit: buggies and vehicles as an itinerant vendor without having first procured a license from Sheridan county, Wyoming, where said goods were exposed and offered for sale, contrary to the form of the satute in such case made and provided, and against the peace and dignity of the State of Wyoming.”

The case was submitted to the trial court upon an agreed statement of facts and motion by the defendant for judgment and dismissal of the case upon such agreed statement upon the ground of the alleged unconstitutionality of the statute under which the prosecution was instituted, and the trial court finding that important and difficult constitutional questions were involved, reserved those questions to this Court. The agreed statement of facts is as follows, viz:

“It is hereby mutually stipulated and agreed that the following is and may be considered by the Court as the facts in this case, which facts may be taken to have been proven by competent evidence.

The defendant, C. A. Byles, is a citizen and resident of the State of Texas and is employed on a salary and not on commission, by the Spaulding Manufacturing Company, whose factory and principal place of business is situated at Grinnell, Poweshiek county, Iowa, where they are engaged in the manufacture and sale of buggies, carriages and automobiles, the said Spaulding Manufacturing Company being a co-partnership, all the members of which are citizens and residents of the State of Iowa.

The defendant, Byles, was, at the time of his arrest, employed as a foreman or superintendent of a force consisting of four salesmen or canvassers employed by said Spauld-ing Manufacturing Company, said salesmen or canvassers being engaged in traveling about throughout Sheridan county, Wyoming, and' adjoining counties, canvassing and taking orders for the future delivery of vehicles. Each salesman or canvasser carried with him one or more sample vehicles, as well as a catalogue, illustrating many other styles, which samples and catalogues were exhibited to prospective customers. Upon finding a purchaser, the salesman or canvasser took the written order of the customér for a vehicle like the sample exhibited, or the style shown in the catalogue; said order providing that the vehicle purchased would be delivered at the residence of the purchaser within thirty days or as soon as transportation would permit, the salesman at the same time taking either money or notes in payment of the purchase price.

No vehicle was delivered by any salesman or canvasser at the time that the order was taken therefor. The orders thus taken by the various salesmen or canvassers were turned over to their superintendent or foreman, C. A. Byles, the defendant in this case, who looked up the reputation and financial responsibility of the purchaser, and if found to be satisfactory, directed that the order be filled and the vehicle delivered in pursuance thereof.

The Spaulding Manufacturing Company had a few vehicles manufactured by them in Grinnell, Iowa, which were under the charge of the defendant, Byles, in a storage warehouse in Sheridan, Wyoming, temporarily occupied for that purpose, the number of said vehicles so stored being not to exceed fifteen or twenty, outside of those used exclusively as samples. If the defendant Byles had no vehicle on hand in staid storage warehouse, corresponding to the styles named in said orders, as was frequently the case, the order was sent directly to the factory of the Spaulding Manufacturing Company at Grinnell, Iowa, and the order was filled by sending a vehicle from said factory in Grinnell, Iowa, consigned to themselves, at Sheridan, Wyoming, to be delivered by the defendant, Byles, or under his direction to the respective purchasers, in pursuance of such orders. If the defendant Byles had on hand in the storage warehouse in Sheridan, Wyoming, a vehicle corresponding to the one ordered, he directed that the order be filled and the vehicle be subsequently delivered to the purchaser from the said storage warehouse. All sales were made subject to the approval of the Spaulding Manufacturing Company at Grin-nell, Iowa, and, even after delivery, if disapproved by them, the vehicle was ‘pulled’ or taken 'back and the order and notes or cash were returned to the customer. No orders were taken or sales made by any of the salesmen or canvassers, under defendant Byles’ supervision, to merchants or dealers in vehicles, but all sales were made to individual users or consumers. The defendant, Byles, personally did not sell or offer to sell any vehicles, but merely had -charge of the force of salesmen or canvassers, as above described. Neither the Spaulding Manufacturing Company nor the defendant, C. A. Byles, had a store or permanent place of business in Sheridan county, Wyoming, or at any other place within the State of Wyoming. The defendant, C. A. Byles, was arrested, charged with a violation of the law of Wyoming known as the Itinerant Vendor Act, being sections 2844 to 2850, inclusive, of the Compiled Statutes of Wyoming of 1910, being Chapter 158 of the Session Laws of Wyoming of 1909.

Said statute was Senate Bill No. 76 of the Laws of 1909 and was introduced and originated in the Senate and not in the House of Representatives. If the defendant, Byles, or his employers, the Spaulding Manufacturing Company, of Grinnell, Iowa, be required to pay an annual license for transacting the above described business within the State of Wyoming, as provided for in said statute, the payment of such license fees would render their business unprofitable and entirely prevent them from engaging in it in this state.

Neither the defendant, C. A. Byles, nor any of the salesmen or canvassers under his direction nor his employers, the said Spaulding Mfg. Co., had a license to transact the above described business in Sheridan county, Wyoming, as required by said Itinerant Vendor Statute.

We hereby agree that the above and foregoing is a correct statement of the facts in the above entitled cause.

(Signed)- A. C. Lyon,

H. W. Nichols,

Attorneys for Defendant.

D. L. Gogerty,

Prosecuting Attorney of Sheridan County.”

The first two reserved questions are as follows:

I.

“Upon the agreed statement of facts filed herein, is the statute known as the Itinerant Vendor’s Law, as found in Sections 2844 to 2850, inclusive, of the Compiled Statutes of 1910, unconstitutional and void as an interference with and an attempt to regulate commerce between the State of Wyoming and the several other states in violation and contravention of the provisions of Section 8 of Article I. of the Constitution of the United States, wherein it is provided that ‘The Congress shall have power * * * * * to regulate commerce with foreign nations and among the several states and with the Indian tribes’?”

II.

“Upon said agreed statement of facts, is said statute unconstitutional and void as in violation and contravention of the provisions of Section xo, Article I. of the Constitution of the United States, wherein it is provided that: ‘No state shall, without the consent of Congress, lay any imposts or duties upon imports or exports, excepting what may be absolutely necessary for executing its inspection laws’ ?”

The law, the constitutionality of which is assailed, is known and commonly called the “Itinerant Vendor’s Act” and was enacted as Chapter 158, S. L. 1909, at page 219, and incorporated in the Compiled Statutes of 1910, Sections 2844 to 2850, inclusive. Section 2844 defines the term “itinerant vendor” for the purposes of the act in the following language, viz: “The term, ‘itinerant vendor’ for the purpose of this act shall mean and include any person, either principal or agent, who engages in either an itinerant or transient business in this state, either in one locality or in traveling about the state from place to place selling manufactured goods, wares or merchandise, and it shall include peddlers and hawkers, and also those who for the purpose of carrying on their temporary or transient business, hire, lease or occupy a building, structure, tent, car, boat, vehicle of any kind for the exhibition or sale of any manufactured goods, wares, or merchandise.” Section 2845 is as follows : “The provisions of this act shall not apply to commercial agents or travelers selling to merchants in this state in the usual course of business or to persons selling books, papers and school supplies; Provided, This act shall not apply to the selling of fruits, vegetables, dressed meats or farm products when sold by the grower or producer. Except that as in this section permitted, it shall not be lawful for any persons to be engaged in the business of itinerant vendor as defined by §2844, unless such person shall be duly licensed so to do in accordance with the provisions of this act.”

Section 2846 provides that every itinerant vendor before making sale of manufactured goods, wares or merchandise shall first pay for and obtain a license from the county,clerk of the county wherein he proposes to sell such manufactured goods, wares or mechandise.

Section 2847 is as follows: “Every person licensed as aforesaid as an ‘itinerant vendor’ shall post his name, residence and the number of his license in a conspicuous manner upon his pack, parcel, or vehicle, or in a prominent place in his place of business, and when his license is demanded of him by any county officer, magistrate, sheriff, deputy sheriff, constable or police officer, 'he shall forthwith exhibit it, and if he neglects or refuses to do so, he shall be subject to the same penalties as if he had no license.”

Section 2848 provides a penalty for every “itinerant vendor” who violates the foregoing sections and is as follows: “Every ‘itinerant vendor’-who sells or exposes for sale either at public or private sale, in any county in this state, any manufactured goods, merchandise, fruits, vegetables, dressed meats or farm products without having first procured a license from the county in which he sells or exposes for sale, such manufactured goods, wares or merchandise, fruits, vegetables, dressed meats or farm products, as provided for in this act, shall be punished by a fine of not less than fifty dollars, and not more than one hundred and fifty dollars, or by imprisonment in the county jail for a period of not less than ten, nor more than ninety days, or by both such fine and imprisonment.”

It is contended that the act is in violation of the interstate commerce clause of the Constitution of the United States. 'The agreed statement of facts shows that the defendant was in fact engaged in interstate commerce. He was a resident and citizen of the State of Texas and all of his business involved the sale by residents of other states to citizens of this state of goods manufactured in other states the delivery of which required the shipment and transportation of vehicles from the State of Iowa to this state in pursuance of the conduct of such business. The defendant and canvassers under his direction solicited orders for future delivery of vehicles like the sample exhibited and which orders were filled in most instances by shipment direct from the factory in Grinnell, Iowa, to be delivered to and at the home of the purchaser in this state. The statute has to do. with interstate commerce business and in requiring a license to be paid not for purposes of inspection which would be in the nature of a police regulation, lays a burden upon such business. It was so held in principle by this court in State v. Willingham, 9 Wyo. 290" court="Wyo." date_filed="1900-11-15" href="https://app.midpage.ai/document/state-v-willingham-6587579?utm_source=webapp" opinion_id="6587579">9 Wyo. 290, 62 Pac. 797, (52 L. R. A. 198, 87 Am. St. Rep. 948), in which Willingham, the defendant, was prosecuted, convicted and fined within the provisions and for the violation of an ordinance of the City of Cheyenne which made it unlawful for any person to keep a store or sell, vend or retail any goods, wares or merchandise without being first duly authorized by a license as provided in the ordinance and excepting from the requirements of the ordinance all persons engaged in the sale of goods, wares and merchandise who pay an annual tax upon such goods, wares, or merchandise, assessed according to the revenue laws of the city and also excepting from such ordinance all traveling agents who sell exclusively by sample or otherwise to regular merchants doing business in that city. The ordinance was held void because in violation of the interstate commerce clause of the Constitution of the United States, following Clements v. The Town of Casper, an earlier decision of this court reported in- 4 Wyo. 495, 35 P. 472" court="Wyo." date_filed="1894-01-16" href="https://app.midpage.ai/document/clements-v-town-of-casper-6587360?utm_source=webapp" opinion_id="6587360">35 Pac. 472. These cases establish the rule of decision in this court that a municipal ordinance which lays a burden upon interstate commerce must be held unconstitutional and void and it follows that a statute which does the same thing must likewise be held unconstitutional. Upon the agreed statement of facts we are of the opinion that the first interrogatory as to whether the statute under which the prosecution is sought to be maintained is unconstitutional and void and must be answered in the affirmative. We, therefore, answer said first question, “Yes.”

Is the statute under consideration within the inhibition of Section 10 of Art. I of the Constitution of the United States, wherein it is provided that: “No state shall, without the consent of Congress, lay any imposts or duties upon imports or exports, excepting what may be absolutely necessary for executing its inspection laws”? There is no provision in the law for inspection. There is no pretense that the manufactured goods here shipped into the state should be inspected. They do not fall within the class covered by any statute or police or health regulation of the state. The right to levy tax to enforce inspection laws is expressly excepted from the inhibition of the Constitution, 'but the act does not measure up to the requirement of that provision. The sole and only effect and operation of the law is to lay a burden or duty upon goods manufactured in and imported from a sister state into this state and for that reason we are of the opinion that the law is also unconstitutional under Section 10, Art. I of the Constitution of the United States. We, therefore, answer the second question, “Yes.”

Having upon the grounds and for the reasons stated found the statute unconstitutional, it would make no difference in so far as this attempted prosecution is concerned, whether the statute is violative of other Constitutional provisions or not and for that reason we deem it unnecessary to set out and discuss or answer any or either of the other reserved questions, and we, therefore, return them unanswered to the District Court of Sheridan county.

Beard, J., concurs. Potter, J., being ill, did not participate in this opinion.