214 Mo. 216 | Mo. | 1907
On February 21, 1905, the prosecuting attorney of Oregon county filed an information, duly verified by affidavit, charging the defendant with going from place to place in said county and selling goods, wares and merchandise, without having'a peddler’s license, or any other legal authority to sell. At the February term, 1905', of the circuit court of said county, the defendant was tried and convicted and his ' punishment assessed at a fine of ten dollars. Within due time and in proper form, he appealed to the St. Louis Court of Appeals, and that court has certified the cause to this court because a constitutional question is involved.
The State’s evidence tended to prove that in the latter part of the year 1904, a man by the name of B. E. Irby, an agent of the Chicago Portrait Company, of Chicago, Ills., called upon the State’s witnesses with samples and took from them orders' to said Chicago Portrait Company, for unframed crayon portraits, to be delivered about January TO, 1905, and left with each purchaser a memorandum showing the agreement, which is as follows: “Chicago Portrait Company, capital stock, $500,000, 118-182 W. Jackson Boulevard, Chicago. Portraits made in oil, crayon, pastel, sepia, pearl and bromode. We manufacture frames for harmonious effects. On or about January 10', 1905', we agree to deliver to Mr. Will Minix a finely finished unframed crayon portrait, 16x20,- like sample. The purchaser agrees to pay $3.96 for the portrait when delivered. We do not compel you to take frames from us, but owing to the delicate nature of the work, all portraits are delivered in appropriate frames, which this ticket entitles you to select at wholesale prices. Elegant patterns that retail from $4.00 to $8.00, we furnish from $1.50 to $4.90, which is one half to one-third the retail
“(Signed.) B. E. Irby,
“Advertising Solicitor Chicago Portrait Company.
“this order cannot be countermanded.”
Afterwards, in February, 1905-, the defendant, another agent of the (Dhicago Portrait Company, appeared in Oregon county with the said portraits in frames and delivered them to the parties who had ordered the same, and collected the price of the portraits, and, in most cases, the purchasers also took the frames and paid for them. The portraits and frames were made in Chicago, Ills., and were shipped from that city to the defendant in Missouri, and he made the delivery and collected therefor. In some cases the purchasers declined to take the frames and received only the portraits and paid for them. No pictures and no frames were delivered or collected for by the defendant except to or for persons from whom these orders for portraits had previously been taken.
At the close of the State’s case the defendant demurred to the evidence, first, because the facts disclosed were insufficient to convict; and second, because the facts disclose that under the interstate commerce clause of the Federal Constitution, section 8, article 1, the defendant is not required to have a license, and a Federal question is involved. The demurrer to the evidence was overruled and the defendant duly excepted.
Thereupon the defendant testified in his own behalf that he was engaged in the business of delivering pictures and frames for the Chicago Portrait Company; that orders for the goods in question had been previously taken by á solicitor in Oregon county, Mis
“1. The court instructs the jury: If you believe from the evidence beyond a reasonable doubt that this defendant, at any time within one year before February 21, 1905, in Oregon county, Missouri, did deal as a peddler and did engage in the selling of goods, wares and merchandise, to-wit, picture frames, by going from place to place to sell the same without having a license as a peddler, you should find defendant guilty and assess his punishment at a fine not less than ten dollars or more than one hundred dollars.
“2. If you believe from the evidence that the picture frames in question were sold by an agent of a Chicago firm who took the order for such frames and sent such order to the firm in Chicago for its approval, and that such firm accepted such order and shipped such goods to this defendant as its agent, and that he as such agent delivered such goods and collected therefor, then he would not be a peddler within the meaning of the law, and you should acquit the defendant.”
As already said, the jury under the instructions found the defendant guilty.
I. It is plain from the instructions given by the court that the circuit court was of the opinion that the transactions in regard to the portraits themselves constituted interstate commerce, and that our peddlers’
II. But it still, remains to be determined whether, conceding all that was shown by the State, the defendant was a peddler under the laws of this State, and as such required to take out a license. Section 8861, Revised Statutes 1899, defines who are peddlers in this State: “Whoever shall deal in the selling of patents, patent rights, patent or other medicine, lightning rods, goods, wares or merchandise, except pianos, organs, sewing machines, books, charts, maps, and stationery, agricultural and horticultural products, including milk, butter, eggs and cheese, by going about from place to place to sell the same, is declared to be a peddler.” By section 8862 it is provided: “No- person shall deal as a peddler without a license,” and by section 8867 the rates of tax on peddlers’ licenses are fixed. By section 8868, “Every person who shall be found dealing as a peddler contrary to the provisions
Statutes regulating the occupation of itinerant peddlers and requiring them to obtain licenses are very ancient. Our Missouri statute is very similar to the act of 50 Geo. III, chap. 41. The purpose of that act was explained by Baron Graham in Attorney-General v. Tongue, 12 Price 51, as follows: ‘ ‘ The object of the Legislature, in passing the act upon which this information is founded, was to protect, on the one hand, fair traders, particularly established shopkeepers, resident permanently in towns or other places ' and paying rent and taxes there for local privileges, from the mischiefs of being undersold by itinerant persons, to their injury, and on the other hand, to guard the public from the impositions practiced by such persons in the course of their dealings, who, having no known residence, carry on a trade by means of vending goods conveyed from place to place by horse or cart.” In Com. v. Ober, 12 Cush. 493, Chief Justice Shaw said: “The leading primary idea of a hawker and peddler is that of an itinerant or traveling trader who carries goods about in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place of business. . . . Our statute goes further, and not only proscribes actual hawkers and peddlers, whose employment is that of traveling traders, and thus seems to refer to a business or habitual occupation, but it extends to all persons doing the acts proscribed.” And by reference to section 8861, Revised Statutes 1899, it will be observed that our statute denominates “whoever shall deal in the selling of patents, etc., goods, wares and merchandise, except pianos, organs, sewing machines, books, charts, maps and stationery, agricultural and horticultural products,
In that case Jones, J., dissented, and said: “The defendant, under the facts in this ease, so far as concerned the picture frames, was a hawker or peddler within section 294 of the Criminal Statutes of 1893. The sale of the picture frames was not exceptional, or occasional merely, but was within the general scope
It cannot be said that these sales by the defendant were sporadic or accidental; on the contrary, they ap
The judgment of the circuit court must therefore be and it is affirmed.
IN BANC.
This cause having been transferred to the Court in Banc on the motion of the defendant and having been reargued and considered by the whole court, the opinion of Gantt, C. J., in Division, is adopted and in accordance therewith the judgment of the circuit court is affirmed;