Kloss v. Commonwealth

Buchanan, J., delivered the opinion of the court. This is a writ of error to a judgment of the Corporation Court of the city of Fredericksburg, affirming a judgment of the mayor of that city, finding John Floss, the plaintiff in error, guilty of carrying on the business of a peddler, without first having obtained a license therefor, as required by section, or paragraph, 50 of the tax bill approved April 16, 1903, as amended by an act approved Hay 13, 1903. Appendix to Va. Code/ 1904, pp. 2223-2224. That section, so far as it is material to a consideration of this case, is as follows: “Any person who shall carry from place to place any goods, wares or merchandise, and offer to sell or barter the same, or actually sell or barter the same, shall be deemed to be a peddler. . . . All persons who do not keep a regular place of business (whether it be in a house, on a vacant lot, or elsewhere), open at all times in regular business hours, and at the same place, who shall offer for sale goods, wares and merchandise, shall be deemed peddlers under this act. And all persons who do keep a regular place of business open at all times in regular business hours, and at the same place, and who shall personally, or through their agents, offer for sale or sell, and at the time of such offering or sale deliver [866] goods, wares and merchandise, shall also be deemed peddlers as above. . . .” The evidence shows that the plaintiff in error was the travelling salesman of one Chalkley, who carried on the business of a broom manufacturer in the city of Manchester. The salesman’s method of doing business was to go from place to place, his employer shipping him ‘from the factory, by rail, to the freight depot at each place on the salesman’s route, brooms in such quantities as would in their opinion be sufficient to supply the trade at such point. The shipments were so timed as to reach the salesman on his arrival at each place. From the shipments so made, the salesman would select one or two brooms as sample's, and with these go around and drum the town for orders, taking orders only from merchants, and never for less than dozen lots. After taking all such orders as he could get in the place, the salesman would go to the freight depot and there “shape up” his brooms, and fill the orders taken by delivering the goods. It further appears that this method of selling brooms was an established feature of the business of broom manufacture, rendered necessary to avoid injury to the brooms by bending and breaking the straw when shipped in small lots from the factory. The only question presented here is whether the plaintiff in error, in doing the acts he did without a license, came within the provisions of the statute quoted. It was conceded by the Attorney-General in oral argument, and properly so, that the business in which the plaintiff in error was engaged was not within the spirit of the act in question. Hor do we think that it is clearly within the letter of that law. If the plaintiff in error had-gone from place to place in the State and taken orders for the brooms manufactured by his principal, and sent such orders to the latter at his place of business in Manchester to be filled by him, the plaintiff [867] in error could not be regarded as a peddler. Neither would he be a peddler, if, instead of sending such orders to his principal to be filled, he had notified him of the amount of brooms necessary to fill the orders taken, and the brooms had been shipped to him from the factory; or he had gone to the factory and gotten the goods and filled the orders theretofore taken by him. In the case of Rex v. McKnight, 10 Barn. & Cres. 734, the accused was in the employ of a tea dealer, and was sent by his master about the neighboring country once every fortnight soliciting orders, and on subsequent occasions was sent to deliver small parcels of tea in pursuance of those orders. This was held not to be an exposing for sale, or a carrying to sell, within the meaning of the Hawkers’ and Peddlers’ Act so as to subject the defendant to a penalty for trading without a license. In Village of Stamford v. Fisher, 140 N. Y. 187, 35 N. E. 500, the defendant had a wagon with which he made trips to the village, filling his previous orders and taking new ones at the various houses. It was held that this failed to establish a violation of the town ordinance prohibiting all persons “from hawking or peddling in the public streets” of the village. In Com’th v. Ober, 12 Cush. 493, it was held that it was nots a violation of the Massachusetts statute concerning hawking and peddling, for an agent to go about delivering to traders in the country goods made by his principals in Boston, which had been previously ordered by such traders. See also Com’th v. Farnum, 114 Mass. 167. In Com’th v. Eichenberg, 140 Pa. St. 158, 21 Atl. 258, it was held that one who travels through the county as the employee of a store kept therein and without a license solicits orders, and afterwards delivers goods to the person ordering, is not a peddler within the meaning of the peddlers’ act involved in that case. [868] In State v. Frank, 130 N. C. 724, 41 S. E. 785, 89 Am. St. Rep. 885, it was held that one who travels from house to house on foot, exhibiting samples of goods and taking orders which he sends to his principals in another State, who ship them to him and he afterwards delivers such g-oods, is not a peddler. . The plaintiff did not carry brooms from place to place for sale. He was merely the salesman of a manufacturer who had a regular place of business, a'nd who shipped from the factory to each point the salesman visited goods to fill such orders- as he secured at such place. The goods with which orders were filled at each place where the salesman took orders were shipped directly • from the factory to such place, and not from one place along the salesman’s route to another. The mere fact that brooms were shipped from the-factory, the principal’s place of business, so as to enable the salesman to fill the orders after they were taken by him, instead of having the goods shipped to him after the orders were taken, does not, it seems to us, work such a change in the character of the business as to make the plaintiff in error a peddler within the meaning of our statute, where such a method of business was adopted, not for the purpose of evading the -revenue laws, but because that mode of delivery was an established feature in the business of manufacturing brooms. The rule is universal, except where otherwise provided by statute, that penal statutes are to be construed strictly, • and are never to be extended by implication. This rule applies with full force to a case like the present, for while the statute on which the prosecution is based is a revenue law, yet in so far as it imposes penalties for a violation of its provisions, it is a penal statute, and must be construed accordingly. “Ho man,” said the court in Harris v. Com’th, 81 Va. 240, 243, 59 Am. Rep. 666, “incurs a penalty unless the act which subjects him to it is clearly within the spirit and the letter of [869] the statute imposing the penalty.” Sutherland on Statutory Oonstr., sec. 348. It follows from what has been said that we are of opinion that the judgment complained of is erroneous, and must be reversed, and the prosecution dismissed. Reversed.