City of Wausau v. Heideman

Mabshalx, J. It will be observed that the judgment is based merely on the fact that appellant, doing the business, of an ordinary traveling agent for a mercantile establishment located in the city of Milwaukee, personally solicited orders for goods by sample, to be filled, if accepted, out of the stock of his principal in such city; and that in so doing he traveled from house to house in the respondent city. It was not claimed in the complaint, established by evidence, or found by the court, that appellant brought into such city any other goods than the samples he carried about with him as a mere traveling agent, or that he offered for sale or sold any of such samples or any goods by sample or otherwise. That essential of the ordinance was left wholly uncovered. In that situation it seems that the case of respondent clearly failed to satisfy the calls of the ordinance. Being a penal law, upon familiar principles it must be strictly construed against the respondent if open to construction at all. The learned trial court obviously supposed it was so open, for certainly the mere taking of orders for goods in Wausau, to be filled out of a mercantile stock in Milwaukee, exhibiting samples in so doing, is not within' the literal sense of the words, “bring into the city of Wausau any article or articles of trade,” etc., and “sell or expose for sale, barter or exchange by sample or other [247] wise, . . , sttcb goods,” etc. Such literal sense plainly covers only selling of goods by sample or otherwise out of a stock of goods brought into the city by the seller and presently therein. To read into the words used the idea that they were aimed at mere traveling men, or agents, taking orders for goods as appellant did, would require not only construction, but construction of a violent character, — one hardly warranted in any case; certainly not in one involving the rights of a person charged under a penal statute. It is claimed by appellant that one merely taking orders for goods by sample, as in this case, is not a merchant, dealer or trader; that such terms include only persons who buy and sell goods on their own account. There is much force in that proposition. The ordinary meaning of the term “transient dealer or trader” is one who goes from place to place carrying goods for the purpose of selling, trading or dealing in the same, as distinct from one who does the same kind of business without traveling about. That was the view taken of a provision quite similar to the one under discussion in State v. Wells, 69 N. H. 424, 45 Atl. 143, cited by appellant’s counsel. It seems clear that the conclusion that appellant was a transient dealer or trader could have been reached by the trial court only by departing from the ordinaiy meaning of those words. We cannot discover anything in the ordinance, taken as a whole, or taking the same in connection with ch. 341, Laws of 1901, to which it refers, to warrant such departure. . The words seem to have been used by the law-making power in their plain, ordinary sense. Numerous cases might be referred to where it has been judicially held, either directly or in effect, that a person who, as agent, merely solicits orders for goods for his principal, whether by sample or otherwise, is not a transient merchant, trader or dealer; that such a dealer is one who goes from place to place, taking with him the chattels which he offers for sale or in which he deals or trades, — a person who con [248] ducts bis business substantially tbe same as a peddler. As a rule tbe cases in wbicb tbe subject is discussed class peddlers as transient dealers or vendors. In Comm. v. Farnum, 114 Mass. 267, there was an attempt to charge tbe accused with peddling without a license. He merely solicited orders for goods by samples, as agent for another. He did not carry goods with him and offer tbe same for sale or trade, nor did be deal therein. Tbe court held, in effect, tha.t an itinerant trader is qne who goes about selling and exposing for sale articles of personal property, not one who goes about merely taking orders for such goods. In Hewson v. Englewood, 55 N. J. Law, 522, 27 Atl. 904, tbe facts were that one Bich-ardson was a merchant having a permanent place of business in tbe city of New York. He employed a number of traveling agents to go about soliciting orders to be filled by him out of bis stock kept in a store in such city. Hewson was one of such traveling agents. He operated in Englewood, going from bouse to bouse. He did not sell any goods, or carry about with him goods for sale. Tbe court held that be was not an itinerant vendor within tbe meaning of an ordinance of Englewood imposing a license fee upon such persons for tbe privilege of doing business within its boundaries; that there was nothing in tbe ordinance precluding a merchant in tbe city of New York from sending agents into Englewood to take orders for goods, any more than precluding a merchant located within tbe city of Englewood from conducting bis business in tbe same way. To tbe same effect are Stuart v. Cunningham, 88 Iowa, 191, 55 N. W. 311; Spencer v. Whiting, 68 Iowa, 678, 28 N. W. 13; Davenport v. Rice, 75 Iowa, 74, 39 N. W. 191; Kansas v. Collins, 34 Han. 434, 8 Pac. 865; Emmons v. Lewistown, 132 Ill. 380, 24 N. E. 58; Cerro Gordo v. Rawlings, 135 Ill. 36, 25 N. E. 1006; Comm. v. Eichenberg, 140 Pa. St. 158, 21 Atl. 258. In tbe latter case it was directly held that one who travels from place to place soliciting orders for goods to be filled out of [249] ■a stock of snob goods kept in a store permanently located is not a traveling merchant. From the foregoing we readily deduce the conclusion that •to satisfy the calls of the ordinance in question we must have •a person temporarily in Wausau, having brought into such city goods of some character for sale and who travels about in .such city exposing for sale, dealing, or trading in such goods. The further point is made that ch. 341, Laws of 1901, upon which respondent city depends, is unconstitutional. Since the points already decided dispose of the casé, it seems best to leave the constitutional question for consideration in ■some case depending upon its solution. By the Gourt. — The judgment is reversed, and the cause remanded with directions to render judgment in favor of the -appellant.