Opinion
No. 28547.
March 24, 1930.
1. HAWKERS AND PEDDLERS. Conviction on charge of peddling with automobile without having paid privilege tax was warranted without proof of actual sale; " peddler" ( Hemingway's Code 1927, sections 7722, 7795).
Conviction under Laws 1926, chapter 118, section 221 (Hemingway's Code 1927, section 7795), on a charge of peddling with an automobile without having paid privilege tax required by Laws 1926, chapter 118, section 172 (Hemingway's Code 1927, section 7722), was warranted without proof of actual sale, in that person may be a "peddler" without having made any sale at all if he offers his wares for sale in the manner usual with peddlers.
2. HAWKERS AND PEDDLERS. One using automobile to transport goods to locality is engaged in "peddling with automobile" within law imposing privilege tax ( Hemingway's Code 1927, section 7722).
Where automobile is used to transport goods to locality and sales thereafter made of such goods in the same manner that ordinary foot peddlers make sales, person engaged therein is peddling with an automobile, within meaning of Laws 1926, chapter 118, section 172 (Hemingway's Code 1927, section 7722), although sales are not made direct from the automobile.
APPEAL from circuit court of Yalobusha county, Second district. HON. GREEK L. RICE, Judge.
W.I. Stone, of Coffeeville, and Watkins, Watkins Eager, of Jackson, for appellant.
Statutes are never to be construed as imposing burdens upon doubtful interpretation. And statutes imposing privilege taxes are to be construed most favorably to the citizen and against the sovereign.
Pan-American Petroleum Corporation v. Miller, 122 So. 393, 395; State v. Simmons, 70 Miss. 485, 12 So. 477; Wilby v. State, 93 Miss. 767, 47 So. 465, 23 L.R.A. (N.S.) 677; State v. Grenada Cotton Compress Co., 123 Miss. 191, 85 So. 137; Sperry Hutchinson Co. v. Harbinson, 123 Miss. 674, 86 So. 455; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Cuevas v. Cuevas, 145 Miss. 456, 110 So. 865; Miller v. Illinois C.R. Co., 146 Miss. 422, 111 So. 558; Board Leevee Com'rs. v. Howie Mercantile Co., 149 Miss. 843, 116 So. 92; Gould v. Gould, 245 U.S. 151, 62 L.Ed. 211, 213; United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16, 690; American Net Twine Co. v. Worthington, 141 U.S. 468, 474, 35 L.Ed. 821, 824, 12 Sup. Ct. Rep. 55; Benziger v. United States, 192 U.S. 38, 55, 48 L.Ed. 331, 338; U.S. v. Merriam, 263 U.S. 179, 187-8, 68 L.Ed. 240, 244; Partington v. Attorney-General, L.R. 4 H.L. 100, 122; Eidman v. Martinez, 184 U.S. 578, 583, 46 L.Ed. 697, 701, 22 Sup. Ct. Rep. 515; Ex parte Taylor, 58 Miss. 478; Bluff City Ry. Co. v. Clarke, 95 Miss. 689, 49 So. 177; V. M. Railroad Co. v. State, 62 Miss. 105; Ex parte Ferguson, 59 Miss. 13; Jackson v. Newman, 59 Miss. 385; Greenwood v. Bank, 75 Miss. 162, 21 So. 747; Bell v. Kerr, 80 Miss. 177, 31 So. 708; Y. M.V.R.R. Co. v. The State, 62 Miss. 105; Hartrauft v. Wiegman, 121 U.S. 609, 30 L.Ed. 1012; U.S. v. Isham, 84 U.S. 17, 21 L.Ed. 728; Robertson v. Texas Oil Co., 141 Miss. 356, 365, 106 So. 449; Planters Lumber Co. v. Wells, 147 Miss. 279, 293, 112 So. 9; Mitchell v. City of Meridian, 67 Miss. 644, 7 So. 493; Carney v. Hamilton, 89 Miss. 747, 42 So. 378; Miller v. Ill. Cent. Ry. Co., 146 Miss. 422, 431, 111 So. 558; 25 R.C.L. 1092, section 307; United States v. Kirby, 19 L.Ed. 278, 74 U.S. 484; People v. Ventura Refining Co., 268 P. 347; People v. Earl, 19 Cal.App. 69, 71, 72; Ex parte Lorenzen, 128 Cal. 431, 79 Am. St. Rep. 47, 50 L.R.A. 55, 61 P. 68; United States v. Kirby, 7 Wall, 482, 19 L.Ed. 278; In re Haines, 195 Cal. 605, 612-3; Matter of Zany, 20 Cal.App. 360, 129 P. 295; People v. Earl, 19 Cal.App. 69, 124 P. 887; Odell v. Rihn, 19 Cal.App. 713, 127 P. 802; San Joaquin K.R.C. I. Co. v. Stevinson, 164 Cal. 221, 128 P. 924; Wells, Fargo Co. v. Mayor, etc. of Jersey City, 207 Fed. 871; Cavender v. Hewitt, 145 Tenn. 471, 22 A.L.R. 755, 239 S.W. 767.
A single sale is not sufficient to constitute one a peddler. There must be a system.
Keller v. State (1899), 123 Ala. 94, 26 So. 323; Reg. v. Phillips (1898), 35 N.B. 393, 7 Can. Crim. Cas. 131; Rex v. Little (1758), 1 Burr (Eng.) 609, 2 Ld. Keyon, 317; Bacon v. Wood (1840), 3 Ill. 265; Spencer v. Whiting (1886), 68 Iowa, 678, 28 N.W. 13; Kansas City v. Collins (1885), 34 Kan. 434, 8 P. 865; Com. v. Farnum (1873), 114 Mass. 267; Incorporated Commonwealth v. Edson, 2 Pa. Co. Ct. R. 377; State v. Belcher (S.C.), 1 McMul. 40, 42; In re Houston (U.S.), 47 Fed. 539, 541, 14 L.R.A. 719.
In the absence of statutory definition one who travels from house to house soliciting orders is not a peddler unless he carries the goods and actually sells and delivers the same at the time the order is taken.
State v. Morehead, 20 S.E. 544-545, 43 S.C. 211, 26 L.R.A. 585; 46 Am. St. Rep. 719; Alexander v. Greenville County, 27 S.C. 469, 49 S.E. 527; Re Pringle (1903), 67 Kan. 364, 72 P. 864; State v. Ivey (1905), 73 S.C. 282, 53 S.E. 428; Citizen's Bank v. Crittenden Record Press (1912), 150 Ky. 634, 150 S.W. 814; Kimmel v. Americus (1898), 105 Ga. 694, 31 S.E. 623; State v. Lee (1893), 113 N.C. 681, 37 Am. St. Rep. 849, 18 S.E. 713; State v. Gibbs (1894), 115 N.C. 700, 20 S.E. 172; Waterloo v. Heely (1899), 81 Ill. App. 310; Com v. Eichenberg (1891), 140 Pa. 158, 21 A. 258; Com v. Horn (1892), 12 Pa. Co. Ct. 284; State v. Wells (1899), 69 N.H. 424, 48 L.R.A. 99, 45 A. 143; Cerro Gordo v. Rawlings (1890), 135 Ill. 36, 25 N.E. 1006; Hewson v. Englewood Twp. (1893), 55 N.J.L. 522, 21 L.R.A. 736, 27 A. 904; Brenner v. Com, 9 Ky. L. Rep. 289; Great Atlantic P. Tea Company v. Tippecanoe (1911), 85 Ohio St. 120, 96 N.E. 1092; Reg. v. Coutts (1884), 5 Ont. Rep. 644; Rex v. Van Norman (1909), 19 Ont. L. Rep. 450.
A solicitor employed by a mercantile establishment to call on citizens and solicit orders for goods kept for sale by it, and who usually carries samples, is not a peddler.
City of Davenport v. Rice, 39 N.W. 191, 192, 75 Iowa, 74, 9 Am. St. Rep. 454; Kimmel v. City of Americus, 31 S.E. 623, 625, 105 Ga. 694; Clements v. Town of Casper, 35 P. 472, 474, 4 Wyo. 494; City of Bookfield v. Kitchen, 63 S.W. 825, 163 Mo. 546; Village of Cerra Gordo v. Rawlings, 25 N.E. 1006, 1007, 135 Ill. 36; Hewson v. Inhabitants of Township of Englewood, 27 A. 904, 905, 55 N.J. Law, 522, 21 L.R.A. 736; State v. Lee, 113 N.C. 681, 18 S.E. 713, 37 Am. St. Rep. 649; State v. Ninestein, 43 S.E. 936, 938, 132 N.C. 1039; State v. Frank, 130 N.C. 724, 41 S.E. 785, 89 Am. St. Rep. 885; City of Oliney v. Tood, 47 Ill. App. 439, 440; City of Kansas v. Collins, 8 P. 865, 866, 34 Kan. 434; McClelland v. City of Marietta, 22 S.E. 329, 96 Ga. 749; Commonwealth v. Jones, 70 Ky. (7 Bush.) 502, 503; Burbank v. McDuffee, 65 Me. 135, 136; State v. Wells, 45 A. 143, 144, 69 N.H. 424, 48 L.R.A. 99, citing Commonwealth v. Ober, 66 Mass. (12 Cush.) 493, 495; State v. Fetterer, 32 A. 394, 395, 65 Conn. 287; Ballou v. State, 6 So. 393, 87 Ala. 144; State v. Lee, 18 S.E. 713, 714, 113 N.C. 681, 37 Am. St. Rep. 649; State v. Gibbs, 20 S.E. 172, 175, 115 N.C. 700; Wrought-Iron Range Co. v. Carver, 24 S.E. 352, 353, 118 N.C. 328; 48 C.J., page 778; 29 C.J., page 220; 21 R.C.L., page 184, sec. 5.
Forrest B. Jackson, Assistant Attorney-General, for the State.
Under the authorities cited by appellant in his brief and under the authorities contained within Words and Phrases, Judicially Defined, Volume 6, page 5260, Peddlers, Words Phrases, Second Series, Volume 3, page 937, Peddlers, Words Phrases, Third Series, Volume 5, page 907, the appellant was certainly engaged in peddling.
Keller v. State, 26 So. 323, 123 Ala. 94.
Appellant was peddling with an automobile; Bertig-Smythe Company v. Bonsach Lumber Company, 86 S.W. 870, 112 Mo. App. 259.
A peddler has been comprehensively defined as a small retail dealer who carries his merchandise with him travelling from place to place or from house to house exposing his or his principal's goods for sale and selling them.
29 C.J., page 219; 21 R.C.L., page 183.
The appellant was convicted in the court of a justice of the peace on an affidavit charging him with peddling with an automobile without having paid the privilege tax required therefor by section 7722 of Hemingway's 1927 Code (section 172 of chapter 118, Laws of 1926), and was again convicted on an appeal to the circuit court.
The privilege tax imposed by the statute on peddlers is as follows:
On foot ......................................... $ 15.00 With pack animal ................................ 40.00 With vehicle and draft animal ................... 60.00 With vehicle and two draft animals .............. 100.00 With automobile or other motor car .............. 100.00 The penalty for violating this section is imposed by section 221 of chapter 118, Laws of 1926 (Hemingway's 1927 Code, section 7795).The evidence warranted the jury in believing that the appellant transported his goods in an automobile which he would park on a street in a municipality, take the goods out of the automobile, carry them with him to the houses in the immediate vicinity thereof, and sell, or offer to sell, them to the occupants of the houses. He paid no privilege tax.
The appellant was refused an instruction directing the jury to acquit him. His contentions are that he was entitled to this instruction for two reasons: First, his evidence does not disclose that he was peddling at all; and second, if peddling, he was not doing so with an automobile.
The evidence discloses only one actual sale by the appellant, and his contention is that it takes more than one sale to constitute the business of peddling. It is not necessary for a person to actually make a sale in order for him to be a peddler; he may not succeed in making any sale at all, but, if he offers his wares for sale in the manner usual with peddlers, he is engaged in that business. The evidence discloses not only the making of one sale, but that he offered to make others.
In support of the appellant's second contention, it is said that, to constitute peddling with an automobile, the sales must be made direct from the automobile, and that, when the automobile is simply used to transport goods to a locality, and the sales of the goods so transported are thereafter made, not from the automobile itself, but in the vicinity thereof in the same manner that ordinary foot peddlers make sales, the statute is not violated. There is no merit in this contention. The line of demarcation adopted by the statute between the two classes of peddlers is the method by which the goods they are selling are transported from place to place; the theory probably being that a greater volume of business can be done by a peddler who transports his goods in a vehicle than can be done by him when he carries them himself without the aid of a vehicle.
No reversible error, if error at all, was committed by the court below in granting the instructions requested by the state.
Affirmed.