52 S.C. 508 | S.C. | 1898
Lead Opinion
The opinion of the Court was delivered by
The defendant was tried and convicted before a magistrate for selling picture frames without a license. The “Case” contains the following agreed statement of facts, to wit: “The Chicago Portrait Company is a corporation of the State of Illinois, its place of business being in the city of Chicago, in the said State, engaged in the business of making portraits in oil, India ink, water color, and pastel, from photographs. That in the prosecution of its business, the said company has agents traveling in this and other States, who solicit orders, and, upon securing an order, the agreement, marked exhibit A in the Brief, is signed by the agent and turned over to the party giving the order, and a duplicate forwarded to the company at Chicago. When the portrait ordered is ready for deliv
The defendant appealed to the Circuit Court. His Honor, Judge Buchanan, dismissed the appeal, whereupon the defendant appealed to this Court upon the following exceptions: “1. Because his Honor erred in overruling the defendant’s exceptions and grounds of appeal from the ruling of and judgment of the magistrate herein. 2. Because his Honor erred in not holding, as he was requested to do, that the defendant was not a hawker and peddler, of whom a license was required under the provisions of the said act. 3. Because his Honor erred in not holding, as he was requested to do, that said hawkers and peddlers act is unconstitutional, in so far as it relates to the defendant for making the sales of pictures and frames in this case or in similar cases, and in conflict with art. I., sec. 8, and art. XIV., sec. 1, of the Constitution of the United States.”
The statute under which the appellant was convicted has been construed by this Court, in the recent decisions of State
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the Circuit Court order a new trial.
Dissenting Opinion
dissenting. The defendant, under the facts in this case, so far as concerns the picture frames, was a hawker or peddler, within sec. 294 of the Criminal Code of 1893. The sale of the picture frames was not exceptional or occasional merely, but was within the general scope and purpose of defendant’s business. It was a part of defendant’s avocation to sell a picture frame to any and every customer who had given an order for a portrait. Therefore, the rule in State v. Moorehead., 42 S. C., 211, and Alexander v. Greenville County, 49 S. C., 527, has no application here. These picture frames were not sold by sample, or pursuant to an order solicited, but were carried about from place to place within this State and sold, or offered for sale, for a price separate and distinct from the price of the portrait ordered. The fact that the frame was convenient for the use, protection, and enjoyment of the portrait can make no sort of difference in determining the question whether “picture frames” comes within the definition of goods, wares, and merchandise, and whether the sale of such goods by an itinerant, carrying them from place to place for such purpose, constitutes hawking and peddling. Nor do I think the act in question unconstitutional, as interfering with interstate commerce. The act does not discriminate against the citizens and products of another State. Without elaborating, I refer to Machine Co. v. Gage, 100