State v. Moorehead

The opinion of the court was delivered by Mr. Chief Justice McIver. 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. 1 From this brief review of the provisions of the act, it seems to us that there is nothing in the act to indicate any intention on the part of the legislature to give any new definition of the words “hawkers and peddlers,” but the sole purpose was to regulate the granting of licenses to persons falling within the well recognized definition of those words; to declare what classes of goods might, and what might not, be sold by such persons; and to prescribe the penalties for violat [213] ing the provisions of the act. Thus, by the express provisions of section four, any person, even though he may be a hawker and peddler, may, with impunity, sell newspapers, magazines, vegetables, tobacco, provisions of any kind, or agricultural products, or may sell, by sample, if traveling for an established commercial house; but a sale by a hawker or peddler of every other class of goods, wares, and merchandise, or a sale, by sample or otherwise, of stoves, ranges, clocks, lightning rods, sewing machines, pianos or organs, is expressly forbidden. It will be observed that in the permissive clause of this section, any person may sell the classes of articles there specified, viz: newspapers, &c., but in the prohibitory clause of the section, the language used is not so general, but, on the contrary, the prohibition is confined to a particular class of persons, as is plainly shown by the use of the words, “by such hawkers and peddlei’S.” Hence, in order to render one amenable to the penal provisions of the act, it must be shown, not only that he has sold one prohibited article, but, also, that such sale was made by him as a hawker or peddler. Any other view would subject any citizen, who sells to his neighbor a sewing machine, a clock, or a piano, to the penalties of this act, and this, surely, was not the intention of the legislature. 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 [214] of Columbia, as do other commercial houses, to the State, the county of Richland, and the city of Columbia. The defendant, on and ¡mor 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. As a rule, in the conduct, of defenddant’s business as employee and salesman of said company, he carries about, with him but one machine, which he exhibits to people residing in the county through which he travels. Sometimes, as upon the occasion above mentioned, defendant sells the machine from his wagon as he is traveling from place to place, and in that event he is supplied with another by said company from its storerooms and warehouse in the city of Columbia. And sometimes defendant secures orders for other machines, using the machine upon his wagon as a sample; such orders so received are supplied and furnished by the company from its stores and warehouse in said city of Columbia. 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 [215] think the jury should have been instructed that the defendant was not liable. He was an agent soliciting orders, and a carrier delivering machines ordered. He made no direct sale himself. He did not carry and expose goods for sale, within the meaning of the statute, and his acts did not come within the mischief the statute is intended to prevent. The article he carried was a sample of that which he proposes the purchaser should buy of the company. The fact that he occasionally delivered the sample machine to a purchaser, desirous of obtaining one immediately, cannot so change the character of his business as to bring him within the statute. Nor did the fact that he sold one attachment, and one tuckmarker, capable of being attached, render him liable; it distinctly appearing that it was not his practice to make such sales. The question is to be determined upon the general character and scope of his business; if this does not bring him within the statute, he is not liable for single sales of particular articles, such sales being exceptional and not in the course of his ordinary employment.” 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.