(аfter stating the facts). The offence with which the defendant is charged, is a violation of section 28, chapter 175, of the acts of 1885, entitled an act to raise revenue, such parts and so much of which, as are material in passing upon the appeal, are as follows :
“Every person acting as a drummer in his own behalf, or as agent for another person or firm, who shall sell or attempt to sell, goods, wares or merchandise of any description, by whоlesale, with or without samples, shall, before soliciting orders or making any such sales, pay to the State Treasurеr, a tax of one hundred dollars, and obtain a license which shall operate one year from its date, and shall be exempt from any other license tax, either State, county, city or town. * * * Any person violating the provisions of this section shall be guilty of a misdemeanor, and shall be fined not less than two hundred dollars, or imprisoned not less than ninety dаys,” &c.
While the defendant as a general cotton and commission merchant in association with his sons and, under the partnership name of R. M. Miller & Sons, is conducting a regular and recognized business in Charlotte, upon which he pays all the taxes imposed under the revenue law, he is sought to be made responsible, as a “drummer” under another clause of the act, though not so designated in the charge, for the single act of selling a consigned and paid for lot of flоur sent from a distant State.
We think few persons in reading the statute and noticing the different classes of employment оr occupation there assessed, would regard the act of the defendant as a “ drumming,” and the defendant as а drummer within the purview of the section upon *514 which the indictment rests, nor could they well do so, without confounding business distinctions enumerated and separately taxed therein. The word, in our opinion, is neither used in the act, nor in its common aсceptation, in a sense which admits its application to the conduct of the defendant, as ascertained in the special verdict. The writer of this opinion has examined the clauses imposing a tax upon the business of a drummer, cоntained in the series of enactments for raising revenue from 1866 to that of 1885, to discover its meaning from its relations and surroundings, and it is manifestly employed to mark out, asa proper subject for taxation, another and distinct employment from that оf general and stationary merchandising, such as that in which the defendant is engaged.
In the Revenue Act of 1866, the tax is imposed upon “every non-resident merchant, drummer, or who shall come into this State and sell,” &c. Ch. 21, §22.
In the Act of 1866-67 the words are, “every non-resident or drummer, or agent of a non-resident, who shall sell/’ &c. Ch. 72, §22.
The same terms are used in the Act of 1868, ch. 108, §33; of 1869-70, ch. 229, §27; of 2870-71, ch. 227, §26; of 1871-72, eh. 58, §24.
These statutes evidently confine the w;ord “drummer,” to agents and representatives of non-resident principals in whose •employment they are, in soliciting purchases in the State.
In the subsequent Revenue Act, the sphere is enlarged, and “drummers and travelling agents of any person,” resident or non-resident, are included. Act of 1872 — 73, ch. 144, §23; Act of 1873-74, сn. 134, §23; Act of 1874-75, ch. 185, §23. In the Act of 1876-77, the language is varied in form, but in substance the same: “Every person acting as a drummer in his own behalf, or as agent for any other person” — ch. 156, §24; and this phraseology is pursued in subsequent enactments. Act of 1879, ch. 70, §25; Act оf 1881, ch. 116, §19; Act of 1883, ch. 136, §28.
*515
It is very obvious that this legislation is directed to a class of travelling or itinerant tradesmen, first to such as rеpresented non-resident merchants, and whose occupation was in competition with resident merchants, whо paid au assessment upon their business, to which the non-resident was not subject- It was subsequently extended to similar agenсies, engaged in the same calling, of resident merchants, perhaps to avoid a discrimination that might fall under the inhibitions of the Federal Constitution.
Albertson
v.
Wallace,
But the essential and distinguishing difference between these, and salesmen having a fixed plaсe of business, is that the drummer is a travelling and soliciting salesman, and these separate callings are assessed with dissimilаr taxes, in the entire series of financial legislation. That this is the sense'of the legislation, is manifest from an inspection of the enactment itself. The expression “with or without samples,” indicates the absence of the goods proposed to be sold from the place of sale, and can scarcely be supposed to include thе home merchant, whose stock of goods is on hand for direct examination.
Our definition of the term is not without the supрort of judicial authority.
“The term “drummer/” says TurNEY, Judge, delivering the opinion of the Court, “has acquired a common acceptation, and in applied to commercial agents who are travelling for wholesale merchants, and supplying the retail trade with goods, or rather taking orders for goods to be shipped to the retail merchant, upon which merchandise the State collects her revenue.” Singleton v. Fritsch, 4 B. J. Lea (Tenn.), 93.
We are therefore clearly of opinion that the act of the defendant is not within the penal interdict of the statute, nor does it make the defendant a drummer, subject to its provisions.
But it is also to be noticed that the offence charged, is not that shown on the proofs and found by the jury. It is alleged in the indictment that the sale of the flour was made to M. C. Mayer and John Ross, partners, constituting the firm of Mayer & Ross;
*516
that, is, to these two persons, in their capacity as рartners, while the finding in the special verdict, is of a sale made to M. C. Mayer alone. Upon the facts contаined in the special verdict,, the defendant cannot, be adjudged guilty of the charge set out and specified in thе indictment.
State
v.
Faucett,
4 D. & B., 107;
State
v.
Stamey,
There is no error in the ruling, and the judgment must be affirmed.
No error. Affirmed.