42 S.C. 211 | S.C. | 1894
Lead Opinion
The opinion of the court was delivered by
The defendant has been indicted for, and convicted of, a violation of the act of 1893, entitled, “An act to amend the law as to hawkers and peddlers” (21 Stat., 407); and this appeal presents two questions: 1st. Whether the defendant is a hawker and peddler, and as such amenable to the provisions of said act. 2d. If so, whether the act is constitutional.
We do not understand that the act of 1893 purports either to define the long established offence of hawking and peddling, or to enlarge its definition, as heretofore recognized, but simply declares, in its first section, that “no person shall, as hawker or peddler, expose for sale, or sell, any goods, wares, or merchandise,” without a license; in its second section, the act prescribes who shall issue the required license, and other particulars as to such license; in the third section, certain public officers are required, and any citizen is authorized, to demand and inspect the license of any hawker or peddler, and cause to be arrested, any hawker or peddler found without a license, and have him brought to justice; the provisions of the fourth section, upon which the first question in this case mainly turns, are as follows: “That the provisions of this act shall not extend to vendors of newspapers, magazines, vegetables, tobacco, provisions of any kind, or agricultural products, or to sales by sample by persons traveling for established commercial houses; but shall extend and apply to vendors of every other class and kind of goods, wares, and merchandise, and to sales by sample or otherwise, by such hawkers and peddlers of stoves, ranges, clocks, lightning rods, sewing machines, pianos or organs. The other provisions of the act, not being pertinent to our present inquiry, need not be stated.
Such being our construction of the law, the only remaining inquiry is whether the conceded facts of this case are sufficient to bring the appellant within the provisions of the act.
The facts are stated in the case as follows: “On and prior to the 29th day of March, 1894, defendant, who is a resident of Eichland County, was in the employment of the Singer Manufacturing Co., a corporation organized under the laws of the State of New Jersey, and doing business in the State of South Carolina, as well as in other States. Said corporation has a place of business, storerooms, and warehouses in the city of Columbia, South Carolina, to which place they ship sewing machines, parts, and attachments, needles, and thread, which are kept on sale at said store in the city of Columbia, for any customer who desires to purchase any of said articles there, and are sold at said store in the usual course of business, and said company pays its taxes on its business and property in the city
Now, while these facts do unquestionably show that a sewing machine was sold by the defendant at the time and place charged, yet we are of opinion that they entirely fail to show that such sale was made by him as a hawker or peddler. We do not think that the testimony, brings the defendant within any recognized definition of the terms hawker and peddler, for which see 9 Am. & Eng. Enc. Law, 307-8; State v. Belcher, 1 McMull., 40. See, also, City of Davenport v. Rice, 75 Iowa, 74, reported, also, in 9 Am. St. Rep., 454, and Commonwealth v. Farnum, 114 Mass., 267. This Massachusetts case was very much like the case under consideration. There the court, after stating the facts, used this language: “Upon these facts, we
It seems to us that the defendant was nothing more than the clerk or salesmau of the Singer Manufacturing Company, a foreign corporation, which had an established place of business in the city of Columbia, South Carolina, where it paid its taxes, State, county, and city, on its business and property in the city of Columbia, and its agent or salesman cannot, in any proper sense, be regarded as a hawker or peddler.
Hnder this view of the case, the question as to the constitutionality of the act of 1893 does not necessarily arise, and, therefore, we do not feel called upon to express any opinion as to that question.
The judgment of this court is, that the judgment of the Circuit Court be reversed.
Dissenting Opinion
dissenting. Being unable to concur in the conclusions reached by a majority of the court, I proceed to give the reasons for my dissent.
The exceptions complain of error on the part of the court below on two grounds: 1st. In holding that the defendant is
We will first consider whether the defendant is amenable to the provisions of said act.
The act, it is true, is somewhat inartistically drawn, but when construed as a whole, and in the light of the evils it was intended to remedy, the intention of the legislature is apparent. The first, second, third, and fourth sections of the act are as follows: Section 1. “That on and after the passage of this act, no person shall, as hawker or peddler, expose for sale or sell any goods, wares or merchandise in any county in this State, unless he has received and is ready to produce and exhibit a license from the clerk of the Court of Common Pleas of such county, so to sell or expose for sale goods, wares, and merchandise in said county. Section 2. That said clerk shall issue licenses to hawkers and peddlers, to be good in his county until the last day of December next after the date of its issue, upon receiving from the applicant such fee or fees therefor as the county commissioners shall, at their first meeting in January after the passage of this act, and thereafter at their first meeting in January of every year, establish and fix license fees for hawkers and peddlers in their county; and it shall be the duty of the county commissioners to fix and establish the said license fees in the several counties of this State. And each license shall specify the sum paid therefor and the privileges granted thereby. Section 8. It shall be the duty of every trial justice and every constable and of the sheriff and of his regular deputies to, and every citizen may, demand and inspect the license of any hawker or peddler in his or their county who shall come under the notice of any of said officers, and to arrest or cause to be arrested any hawker or peddler found without a valid license, and to bring such hawker or peddler before the nearest trial justice, to be dealt with according to this act. Section J. That the provisions of this act shall not extend to vendors of newspapers, magazines, vegetables, tobacco, provisions of any kind, or agricultural products, or to sales by sample by persons traveling for established commercial houses, butshall extend and apply to vendors of every other class and kind of goods, wares, and merchandise,
The following facts appear in the case: “On and prior to the 29th day of March, 1894, defendant, who is a resident of Rich-land County, was in the employment of the Singer Manufacturing Co., a corporation organized under the laws of the State of New Jersey, and doing business in the State of South Carolina, as well as in other States. Said corporation has a place of business, storeroom, and warehouse in the city of Columbia, S. C., to which place they ship sewing machines, parts, attachments, needles, and thread, which are kept on sale at said store in the city of Columbia for any customers who desire to purchase any of said articles there, and are sold at said store to customers in the usual course of business, and said company pays its taxes on its business and property in the city of Columbia. The defendant, on and prior to said 29th day of March, 1894, was employed by said company, and by it furnished with a wagon, in order to travel about from place to place in Richland County and elsewhere for the purpose of selling sewing machines, parts, and attachments, and for the purpose of soliciting patronage for the business and store of said company at Columbia, S. C. * * * The defendant has since the 20th of December, 1893, to wit: on the 29th day of March, 1894, sold a sewing machine from his wagon while traveling from place to place, said sale having been made to one John Smith in Richland County. * * * The said sewing machine so sold by defendant from his wagon as aforesaid, was shipped by said company from its store and warehouse at Columbia.”
The words, “and to sales by sample or otherwise by such hawkers and peddlers of stoves, ranges, clocks, lightning rods, sewing machines, pianos or organs,” at the end of section 4, were not in the bill as at first introduced, but were inserted as an amendment upon the recommendation of the Senate Committee. See Senate Journal of 1893, page 154.
We will first consider the act without the aforesaid amend
What was the intention of the legislature by amending section 4 as aforesaid? According to the view which I take of the amendment, it was for the purpose of emphasizing the restrictive provisions of the act as to sales of stoves, ranges, clocks, lightning rods, sewing machines, pianos or organs,” and to prevent their sale by “sample,or otherwise” by the persons mentioned in the act, unless the person selling them had a license authorizing such sale. The connection in which the legislature uses the words, “such hawkers and peddlers,” in section 4, leads me to the conclusion that their intention was to use them in the sense of “persons traveling for established commercial houses.” It will scarcely be contended by those who are familiar with the sales of “stoves, ranges, clocks, lightning rods, sewing machines, pianos or organs,” that it was the intention of the legislature to confer special privileges on those making such sales, or that the amendment was adopted for the purpose of enabling persons traveling for established commercial houses “to sell stoves, ranges, clocks, lightning rods, sewing machines, pianos or organs,”' not only by sample but otherwise, while such persons can sell other articles only by sample; yet this is the effect of the construction placed upon the act by the majority of the court. Such construction almost practically defeats the purposes of the act by exempting from its operation sales of sewing machines, &c. (mentioned in the amend ment), conducted in the manner set forth in this case.
It is argued, however, that in section 2 of said act, the legislature attempted to delegate its powers of taxation to the couuty commissioners, and that, therefore, the act is null aud void. We cannot accept this view of the act. It is full and complete within itself, only leaving it to the county commissioners to assess and fix the amount of the license, which, when this is done, is definite and uniform as to all persons within that county. It comes under the principle laid down in the case of Port Royal Mining Co. v. Hagood, 30 S. C., 524, in which it is said: “It is undoubtedly true that legislative power cannot be delegated,'but it is not always easy to say what is, and what is not, legislative power in the sense of the principle. The legislature is only in session for a short period of each year,
Section 8 of art. IX. of the Constitution, which confers the right to vest such power in municipal corporations, likewise mentions in the same connection the corporate authorities of counties. The county commissioners are the corporate authorities of counties. The duties imposed upon the clerk of the court are purely ministerial. The requirement that he should specify in the license the privileges granted thereby, was not
Objection is also urged against the constitutionality of the act, on the ground that it is an interference with interstate commerce. In considering this objection it will be well to bear in mind the following facts in this case: The defendant is a resident of Eichland County; the company had a place of business in the city of Columbia, where machines were kept on sale for any customers who might desire to purchase them; they were sold in the usual course of business; the company also pays its taxes on its business and property in the city of Columbia, as do other commercial houses, to the State of South Carolina, county of Eichland, and city of Columbia; the machine was sold from the wagon, while the defendant was traveling from place to place in Eichland County, which machine was furnished by the company from its store in Columbia. The goods in Columbia had become part of the general mass of property in this State, and were, therefore, amenable to the laws of the State. It is not contended that the goods were sold in the original package. Under these circumstances the act cannot be declared unconstitutional as interfering with interstate commerce. The case of Robbins v. Shelby County Taxing District, 120 U. S., 489, decides that the Constitution of the United States does not prohibit the “imposition of taxes upon persons residing within the State or belonging to its population, aud upon avocations and employments pursued therein, not directly connected with foreign or interstate commerce.” Also, “as soon as the goods are in the State, and become part of the general mass of property, they will become liable to be taxed as other property of similar character.”
As reported by the codifiers to the legislature in November, 1893. — Reporter.