Hall v. State
Hall v. State
Opinion of the Court
I. It is insisted by the plaintiff in error that the in•dictment was bad for duplicity, in that it charged him with two substantive offenses, viz: hawking and peddling; that while a hawker is necessarily a peddler, a peddler is not a hawker, unless and until he begins to attract attention to his wares by outcries or other device, and that the Legislature did not use the words interchangeably in the statute under consideration, but used them in a different sense as is evidenced by the language “hawkers and peddlers shalffmc7¿ pay,” etc. We have failed to find a single case at law where the supposed distinction pointed out by plaintiff in error has ever been enforced, or even recognized, except in the remarks of Chief-Justice Shaw, in the case of Commonwealth vs. Ober, 12 Cush. 493, where he 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. Superadded to this (though, perhaps, not essential) by a ‘hawker’ is generally understood one who not only carries goods for sale, but .seeks for purchasers either by outcry, which some
II. It is also insisted that the indictment was bad because it failed to allege that the defendant sold, or offered for sale, any of the articles mentioned therein.
IIL It is farther insisted that the facts agreed upon ■do not prove the allegations of the indictment: (a) that the defendant, if subject to any license, was a person or dealer traveling from place to place, required to pay a license of $50, and should have been indicted as such; (b) that defendant can not be considered a peddler unless he sold, or offered to sell, to the public generally, and (c) it is suggested that we read the cases of Robbins vs. Shelby County Taxing Dist., 120 U. S. 487, 7 Sup. Ct. Rep. 592, and Asher vs. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1, in connection with the fact that the storehouse from which the provisions sold by defendant were obtained, is located in the State of Alabama, from which we infer that defendant contends that, as applied to his case, our statute is inoperative as an interference with interstate commerce.
A. To give the last clause of the section of'the statute now under consideration its full natural meaning, would bring it into direct and irreconcilable conflict with a previous clause of the same section imposing a license of $300 on hawkers and peddlers. The obvious legislative policy and intent was to tax hawkers
B. The evidence shows that the defendant engaged in the business of traveling about from place to place, carrying with him goods, wares and merchandise which he offered and sold at retail. There can be no question that this constituted his business that of a hawker and peddler, within the ordinary and popular meaning of those terms (Bishop’s Statutory Crimes, sec. 1074; Fisher vs. Patterson, 13 Pa. St. 335; City of South Bend vs. Martin, 142 Ind. 30, 41 N. E. Rep. 315, S. C. 29 L. R. A. 531; Emert vs. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367), unless it is relieved of that character by the fact that the goods were sold only to employes of his principal. We are cited to the case of Vicksburg and Meridian Railroad Company vs. State, 62 Miss. 105, where it was held that under a state of facts very similar to those in the present case a railroad .company was not liable to a tax for the privilege of running “a trading car,” the court disposing of the case by remarking that the company under such circumstances was not a trader within the popular meaning of that word, nor was its car a “trading car” taxable under the provisions of the code of that State; that laws imposing-privilege taxes were to be construed in favor of the-citizen, and no occupation was to be taxed unless clearly within the provisions of such laws. The same-
C. The cases referred to by plaintiff in error under this head have been carefully reviewed by the Supreme Court of the United States in the comparatively recent ■case of Emert vs. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367. A short quotation from that case will dispose of this point. Mr. Justice Gray, speaking for ■the court, said: “The defendant’s occupation was offering for sale and selling sewing machines by going from place to place in the State of Missouri, in a
The judgment is, therefore, affirmed.
Reference
- Full Case Name
- J. N. Hall, in Error v. The State of Florida, in Error
- Cited By
- 11 cases
- Status
- Published
- Syllabus
- 1. The words “hawkers” and “peddlers” are u=ed synonymously and interchangeably in the 11th subdivision of section 9, chapter 4322, acts of 1895. :2. The words “hawkers” and “peddlers,” in that clause of subdivision 11, section 9, chapter 4322, acts of 1895, reading “Hawkers and peddlers shall each pay for license tax $300,’’ include such persons as are ordinarily and popularly understood to be such, and the clause defining a peddler to be an “unlicensed traveling dealer who shall bargain or sell,” etc., was not intended to limit, define or restrain the meaning of the words “hawkers and peddlers,” but was intended to class as peddlers certain dealers not included within the popular and ordinary meaning of those words. •3. An indictment against one for carrying on the business of a hawker and peddler without license, who is not embraced within the popular and ordinary meaning of the words “hawkers and peddlers,” but is embraced within the statutory definition beginning “all unlicensed traveling dealers,” etc., in subdivision 11 of section 9, chapter 4322, acts of 1895, must follow the language of this definition; and an indictment in the ordinary or common law form for hawking and peddling without license, can not be sustained by proof of acts constituting one a peddler only by reason of the statutory definition, and which would not, independent of such statutory definition, constitute him a hawker and peddler within the ordinary and popular meaning of those terms. 4. An indictment alleging that defendant, unlawfully, “on the 1st day of October, A. D. 1895, and thence continually until the finding of this indictment, did engage in, carry on and conduct the business of hawker and peddler, and did, during the times and on the days aforesaid, hawk and peddle at divers and sundry places in said county, sugar, rice, meat, butter, flour and lard, without first having obtained a State license so to do, contrary,” etc., is sufficient under section 10 and that clause of subdivision 11, section 9, chapter 4322, acts of 1895, reading: “Hawkers and peddlers shall each pay for license tax $300.” 5. Where the last clause of a section of a statute is plainly inconsistent with the first portion of the same section, and this first portion conforms to the obvious policy and intent of the Legislature, the last clause, if operative at all, must be so construed as to give it an effect consistent, with the first portion of the section and the policy thereby indicated. 6. The last clause of subdivision 11, section 9, chapter 4322, acts of 1895, beginning: “All persons or dealers traveling from place to place,” etc., does not include any person who is properly a “hawker and peddler,” as ordinarily and popularly understood by those words, used in a previous clause in the same subdivision. 7. One who, as agent for a railroad company, travels about from place to place in a railroad commissary car, carrying with him goods, wares and merchandise belonging to his principal, offering and selling same, for a commission, at retail to employes of his principal only, taking in payment, or as security for the payment, of the purchase price, orders on his principal drawn by the employes against wages earned or to be earned, is a hawker and peddler within the meaning of those words, in the clause of subdivision 11, section 9, chapter 4322, acts of 1895, reading: “Hawkers and peddlers shall each pay for license tax $300.” 8. The clause of subdivision 11, section 9, chapter 4322 acts of 1895, beginning: “Hawkers and peddlers shall each pay for license tax $300,” makes no discrimination between residents and non-residents, nor between products or manufactures of this State and other states. It is not inoperative as an interference with interstate commerce, when applied to a peddler who brings his goods from another State into this State for sale at retail, where the goods are in this State when offered for sale, when orders are taken for them and deliveries made, and where the goods are m this State when all negotiations prior to and attending sales of same are had, and the goods are not-sold in original packages, but at retail in small quantities.