Village of Stamford v. Fisher

Merwin, J. On the 8th September, 1890, the board of trustees of the village of Stamford, the plaintiff above named, passed a resolution reading as follows: “Resolved, that from and after the passage of this resolution all persons are prohibited from hawking or peddling in the public streets within the corporate limits of the village of Stamford, or selling at auction in the streets of said village, any goods, wares, or merchandise of any kind or description, excepting meats, fish, fruits, and farm products, until such person or persons shall have first obtained a license therefor, as provided in the next section.” The section that followed, after stating the manner in which licenses should be obtained, and the price to be paid therefor, proceeded as follows: “Any such person failing or refusing to comply with"this resolution, or to procure such licenses, or pay such fee shall forfeit the sum of ten dollars and costs of prosecution for each offense, as a penalty therefor. ” These resolutions were passed under the authority given by chapter 465 of the Laws of 1883, which provided as follows: “ The trustees of any village in this state, incorporated under special act of the legislature, and who have not the powers hereinafter conferred, shall, from and after the passage of this act, have power and authority to restrain, regulate, or prevent hawking and peddling in the streets, except the peddling and sale of meats, fish, fruits, and farm produce; to regulate, restrain, or prohibit sales by auction, and grant licenses to peddlers and auctioneers, and fix the amount to be paid therefor. ” The claim of the plaintiff is that, on or about the 29th October, 1890, the defendant was a peddler, and, as such, was engaged in peddling goods, other than the excepted articles, in the public streets of the village of Stamford, without a license, and that thereby he incurred the penalty of $10. The plaintiff recovered before the justice. The county court reversed the judgment, upon the ground, as indicated by the opinion of the county judge, that the evidence before the justice did not show that the defendant was a hawker or peddler, or engaged in peddling in the public streets of the village. There is no particular dispute about the facts. The defendant resides in the village of Oneonta, which, we may assume, is a few miles distant from Stamford, and in a county adjoining Delaware county. On the 29th October, 1890, the defendant was in the village of Stamford with a horse and wagon. Upon that occasion he stopped at several residences, and in each case took from his wagon one or more small packages of tea and coffee, and in one case a cup and saucer and plate, and in another case a bottle of lemon extract, and delivered them in the house, receiving then the pay therefor. In every instance these deliveries were made in pursuance of orders taken by him about a month before. In some of the cases, when he made these deliveries, he solicited and took orders for like articles to be delivered about a month thereafter. It does not appear where the goods came from that were delivered, nor whether the defendant was owner. There is evidence that he had a place [610] of business in Oneonta, and did not have any in Stamford. In substance, the defendant went from house to house, and obtained orders for. standard goods to be delivered in the future, and thereafter, with a horse and wagon and prepared packages, made deliveries in pursuance of the orders, and received then the pay, and at the same time took or solicited like orders for subsequent delivery. The claim of the defendant is that this manner of doing business did not make the defendant a peddler. Belianee is placed on the circumstance that the defendant had no goods except what had been previously bargained for. It is therefore argued that there was no carrying to sell, or exposing for sale, which are claimed to be essential characteristics of the occupation of a peddler. Our statute does not define the term “peddler.” We may, however, to some extent infer the legislative idea from the provisions of title 4, c. 17, pt. 1, of the Revised Statutes, entitled “Of Hawkers and Peddlers.” By section 1 of that title, as amended by chapter 72 of the Laws of 1880, it is provided that “no person shall be authorized to travel from place to place within this state for the purpose of carrying to sell, or exposing for sale, any goods, wares, or merchandise of the growth, produce, or manufacture of any foreign country, other than family groceries and provisions, unless he shall have obtained a license as a hawker and peddler in the manner hereinafter directed.” Inferentially, it may be said that a person who travels from place to place for the purpose of carrying to sell, or exposing for sale, any goods, wares, or merchandise would be deemed a peddler. The ordinary meaning of the term is, one who travels about the country with merchandise for the purpose of selling it. 2 Bouv. Law Dict. In Rex v. McKnight, 10 Barn. & C. 734, the defendant, -as agent for a party living in a neighboring village, went about the country once a fortnight getting orders for tea, and on a subsequent occasion made deliveries. This was held not to be an exposing for sale, or carrying to sell, within the meaning of an act requiring any peddler or other trading person going from town to town, or toother men’s houses, carrying to sell, or exposing to sale, any goods, wares, or merchandise, to take out a license. Emphasis was placed on the circumstance that the bargain for the goods and the delivery were on different occasions. A similar view is taken in Com. v. Ober, 12 Cush. 498; Com. v. Gardner, 133 Pa. St. 289, 19 Atl. Rep. 550; Ballou v. State, 87 Ala. 145, 6 South. Rep. 393. In the latter case it is said that the distinctive feature of a peddler is that he goes from house to house carrying his articles of merchandise with him, and concurrently sells and delivers. In Com. v. Eichenberg, 140 Pa. St. 160, 21 Atl. Rep. 258, it seems to have been held that a merchant going about the country and getting orders, which he subsequently fills, is not a peddler. In Graffty v. City of Rushville, 107 Ind. 502, 8 N. E. Rep. 609, it was held that it made no difference whether the goods were taken along for present delivery, or orders taken for future delivery. It will be noticed that the statute of 1883 gives authority to regulate or prevent hawking and peddling “in the streets,” while it gives authority to regulate or prohibit sales by auction without that limitation. This is a circumstance that may be properly considered in determining whether the defendant was within the prohibition. He did not, in fact, in the street, sell or offer to sell any goods. The case of Bradley v. City of Rochester, (Sup.) 7 N. Y. Supp. 237, cited by the counsel for plaintiff, involved a different question. A penal statute is to be strictly construed. Cameron v. Seaman, 69 N. Y. 401; City of Buffalo v. Mulchady, 1 Sheld. 431. Many of the evils that are supposed, in some of the cases, to attach to the business of the peddler, would not occur in business done after the manner of defendant. If a merchant, living at Stamford, by himself or his agent had been accustomed to do just what the defendant did, it would hardly be claimed that he was a peddler. Still, the statute makes no distinction in the matter of residence. The foregoing considerations lead to the conclusion that the [611] defendant was not shown to be engaged in peddling in the streets of the village, within the meaning of the statute. It follows that the judgment should be affirmed. Judgment of the county court of Delaware county affirmed, with costs. Hardin, P. J., concurs. STATEMENT BY MARTIN, J., DISSENTING. The plaintiff was a duly-incorporated village, incorporated by chapter 798 of the Laws of 1870. Chapter 465 of the Laws of 1883 provides as follows: “The trustees of any village in this state, incorporated under special act of the legislature, and who have not the powers hereinafter conferred, shall, from and after the passage of this act, have power and authority to restrain, regulate, or prevent hawking and peddling in the streets, except the peddling and sale of meats, fish, fruits, and farm produce; to regulate, restrain, or prohibit sales by auction, and grant licenses to peddlers and auctioneers, and fix the amount to be paid therefor.” Pursuant to the provisions of that statute, the board of trustees of the village of Stamford, on the 8th of September, 1890, passed a resolution as follows: “Besolved, that from and after the passage of this resolution all persons are prohibited from hawking or peddling in the public streets within the corporate limits of the village of Stamford, or selling at auction in the streets of said village, any goods, wares, or merchandise of any kind or description, excepting meats, fish, fruits, and farm products, until such person or persons shall have first obtained a license therefor, as provided in the next section.” The section that followed, after stating the manner in which licenses should be obtained, and the price to be paid therefor, proceeded as follows: “Any such person failing or refusing to comply with this resolution, or to procure such license, or pay such fee shall forfeit the sum of ten dollars and costs of prosecution for each offense, as a penalty therefor.” The judgment of the justice was reversed upon the ground that the defendant was not a hawker or peddler, or engaged in peddling in the public streets of the plaintiff.