City of Gulfport v. Stratakos

Mayes, J., delivered the opinion of the court. This prosecution was begun in March, 1907, under the Code of 1906. Section 40, par. 2, of the Code, gives a municipality the same right of appeal that is given to the state. The state, or a municipality, may appeal in any case from a judgment acquitting a defendant; where a question of law has been decided adversely to either. The record in this case presents a pure question of law, and nothing else. The agreed facts make a clear case of violation of § 1367 of the Code of 1906, if, as a matter of law, the keeper of a fruit stand is “a merchant, shopkeeper, or other person,” within the meaning of § 1367 of the Code of 1906, prohibited from keeping open store, or disposing of any wares or merchandise, goods or chattels, on Sunday, or selling or bartering the same. It is difficult for us to perceive how the terms of a statute could be broader, or more clearly embrace within its provisions the exact case presented than this one does. The agreed facts show that Stratakos was the owner of a fruit stand, that he kept open his place of business on Sunday, and sold fruit. The sale of fruit on Sunday is not a work of necessity or charity, and any person engaged in the business who keeps open store on Sunday, or disposes of, or sells, or barters, fruit on that day, is clearly guilty of a violation of.§ 1367 of the Code. The statute makes it an offense for any merchant, shopkeeper, or other person, whether that other person be a [501] merchant or shopkeeper, to do any one of the following things on Sunday, viz.: Keep open store; dispose of any wares or merchandise, goods or chattels; or sell or barter any wares or merchandise, goods or chattels. In our judgment the keeper of a fruit stand is a shopkeeper, within the meaning of this statute, and the keeping open of his stand on Sunday is the keeping of an “open store” within the statute; but, whether this view be correct or not, the statute prohibits any person, whether merchant or shopkeeper, from disposing of any wares or merchandise, goods or chattels, or selling or bartering the same, on Sunday, and the vendor of fruit is clearly the vendor of wares or merchandise, goods or chattels. Fruit is merchandise, within the meaning of the statute under consideration. In the case of Blackwood v. Cutting Packing Co., 16 Cal., 212, 18 Pac., 248, 9 Am., St. Rep., 199, in that part of the opinion to be found on page 214 of 76 Cal., page 249 of 18 Pac. and page 201 of 9 Am. St. Rep., it is said: “The plaintiff contends, in the first place, that apricots are not merchandise. A walk through the markets would probably convince him that he is mistaken. It is said, however, that such fruit comes under the head of ‘produce.’ Very likely it does. But we think that the word ‘merchandise’ covers all kinds of personal property which is ordinarily bought and sold.” This language is used, it is true, in a civil suit; but the language of the statute under discussion in this case justifies the adoption of this definition as applied to it. The case of State v. Willingham, 86 Miss., 203, 38 South., 334, has no application here. In that case an appeal was attempted to be taken by the state from the decision of the judge on a question of fact. The court properly held that this could not be done. In this case the question of law presented, the facts being agreed to and showing a violation of law, is whether or not a fruit vendor is a shopkeeper, or vendor of merchandise, within the meaning of the statute. We think the learned circuit judge erred in his holding, discharging the defendant.