State v. Fleming, 140 N.W. 674

State v. Fleming

140 N.W. 674 | N.D. | 1913

SpaldiNg, Ch. J.

The defendant was informed against, charged with violating the provisions of chapter 201, Laws of 1911. The information sets out the facts fully. It was so drawn to enable the courts to pass upon the validity of the statute referred to. As far as material it state that on the 27th of September, 1911, in the village of Niagara, in the county of Grand Forks, the defendant committed the crime of engaging in the occupation of a transient merchant without first obtaining a license authorizing him to do so; that the crime consisted in selling apples in bulk with no covering, from a box car on the Great Northern tracks in said village, which apples belonged to defendant’s employer, one Vandeventer, a resident of Missouri, and who raised the same in his own orchard in the state of Missouri and shipped them from that state to the village of Niagara, consigned to himself, for the purpose of selling them, as set out, all without any intention to become, and without becoming, a permanent merchant of said village of Niagara, and without obtaining from the secretary of state of North Dakota a license authorizing him to so sell such apples. The statute in question requires transient merchants to secure a license for conducting their business or occupation in this state., The license is required to be procured from the secretary of state, and the price fixed therefor is $75. The statute also requires the payment of a sum not exceeding $25 per day to the treasurer of the city or village where he is conducting his business, and contains other provisions, not necessary here to be noted, further than the definition contained therein, that a transient merchant is one who engages in the vending or selling of merchandise at any place in this state temporarily, and who does not intend to become, and does not become, a permanent merchant of such place.

*598The information was demurred to on tbe following grounds:

11 Tbat tbe court bas no jurisdiction of tbe offense charged therein.

2. Tbat tbe facts stated in said informátion do not constitute a pub-lie offense.

3. Tbat it contains matter which, if true, would constitute a legal bar to tbe prosecution, in this, tbat it shows upon its face tbat tbe apples so sold by tbe defendant were, at tbe time of tbe sale thereof, tbe subject of interstate commerce, and tbat in so selling such apples tbe defendant was engaged in interstate commerce, and was not subject to any license or tax by tbe state of North Dakota contravening tbe right of Congress to regulate interstate commerce.

Tbe demurrer was overruled, defendant pleaded guilty. A motion in arrest of judgment was submitted upon tbe same grounds stated in tbe demurrer. This was overruled and denied. Tbe ease is here on appeal from tbe order overruling tbe motion in arrest of judgment.

Several errors are assigned which are directed toward testing the' constitutionality of tbe statute referred to, and it is also urged tbat the defendant is not a transient merchant within tbe meaning of tbe statute. From our view of tbe law tbe last-mentioned question is tbe only one which may be properly determined at this time. We are satisfied tbat tbe contention of appellant on this point is well taken; and tbat by no construction of the language of tbe statute, and tbe definition it contains of a transient merchant, can defendant be held to come within tbat term. At first glance it would seem as though, under tbe definition given, be is any person who engages in tbe selling of merchandise, and tbat, if apples may be termed merchandise, tbe defendant is included within this definition; but further inspection discloses tbe fact tbat tbe “transient merchant” is, by tbe definition, placed in contrast with tbe permanent merchant; tbat tbe definition is intended to distinguish tbe transient merchant from tbe permanent merchant; tbat is, tbe transient merchant is a merchant who engages in tbe sale of merchandise at a place temporarily, not intending to become, and not becoming a permanent merchant of such place. It follows from this tbat it is not only tbe faet of selling merchandise, but tbe intention or fact of not becoming a permanent merchant, tbat identifies tbe transient merchant, and tbat in either case be must be a merchant. This leads to a consideration of tbe definition of tbe word “merchant.” Formerly *599the word seems to have applied to wholesalers only, hut we take it that this was with reference to the conduct of business in England, and perhaps in the early days of this country when the man who is now designated as a retail merchant was — and in some places still is— called a shopkeeper. It then served to distinguish between the wholesaler and the retailer; but under modern usage in this country, and certainly in this state, such distinction is no longer maintained. The man who runs a retail store is not commonly spoken of here as a shopkeeper, but rather as a merchant. In the light of these considerations, we think we are able to determine which of the several definitions of a merchant found in the dictionaries and other works applies to present conditions in this locality. In Webster’s Hew International Dictionary we find the definition as one who carries on a retail business, a storekeeper or shopkeeper; and in Webster’s International Dictionary, one who keeps a store or shop for the sale of goods, a shopkeeper; and in the Century Dictionary, one who is engaged in the business of buying commercial commodities and selling them again for the sake of profit. The Century Dictionary also distinguishes and says: “One who sells without having bought, as where one sells products of his own labor, is not usually termed a merchant.”

“The term ‘merchant’ includes all who buy and sell any species of movable goods for profit.” Rosenbaum v. Newbern, 118 N. C. 83, 32 L.R.A. 123, 24 S. E. 1. And Kinney’s Law Dictionary says the term “merchant” has been defined to be, strictly, a buyer, but by extension, one who buys to sell or buys and sells, one who deals in the purchase of goods, a dealer in merchandise, a trader.

From these definitions, and those from many other authorities which might be cited, it would seem that two essentials are necessary to constitute one a merchant, in the ordinary meaning of the word; namely, that he must buy and sell, and that he must keep a shop or store for that purpose. For the purposes of this case it is not necessary to decide whether the car Avas a store or shop. The facts applied in the case at bar exclude the defendant from these definitions. He did not buy, he grew and sold. See also 27 Cyc. 478. We conclude that a transient merchant, within the. meaning of the statute referred to, is a merchant who sells merchandise temporarily at a place in this state without intending to become, and without becoming, a permanent merchant of *600such, place. Buying is an essential element, but the buying need not be done at the same place where the sales are made. And we conclude that the defendant was not a transient merchant.

In addition to the definitions and authorities to which reference has been made, our conclusion is verified by a consideration of certain results which would necessarily follow if this defendant were held to be a transient merchant within the meaning of chapter 201, supra. These results are such that it can hardly have been within the intent of the legislative assembly to have enlarged the definition so as to include defendant within its meaning. If he is included, it means that every farmer living outside the limits of any village or city in this state, selling and delivering to an inhabitant of the city or village a load of potatoes or of wood, a basket of eggs, or any other of the products on his farm, would be required to pay not only a license of $15, but such additional fee as might be prescribed by the local village or city authorities, not exceeding $25 for every day when he sold any such commodity. It would practically deny to the 'farmer or producer the right to market either his dressed or live pork in any village or city within the state. It would close local markets to his butter and milk. It would likewise prevent the disposition of farm products to the wholesale buyer. In fact, it would so limit the right to exercise the power to sell that the occupation of farming would, in a large measure, be destroyed, and the residents of villages and cities rendered almost entirely dependent upon shipments of food, fuel, and different forms of merchandise. It is clear that no such results were contemplated or intended. We may add that it is conceded by counsel that if the terms of this statute are applicable to the defendant, they are universally applicable, and apply as well to growers of fruit and other products of the farms of the state as to those produced and shipped in from other states or countries, and we see no reason to question the correctness of this admission.

The order of the District Court is reversed, with directions to discharge the defendant.