Emert v. State of Missouri

• Decision Date: 04 March 1895
• Docket Number: No. 120,120
• Citation: 15 S.Ct. 367,156 U.S. 296,39 L.Ed. 430
• Parties: EMERT v. STATE OF MISSOURI
• Court: U.S. Supreme Court

156 U.S. 296

15 S.Ct. 367

39 L.Ed. 430

EMERT

v STATE OF MISSOURI.

No. 120.

March 4, 1895.

This was an information, filed July 27, 1889, before a justice of the peace in the county of Montgomery and state of Missouri, for a misdemeanor, by peddling goods without a license, in violation of a statute of the state, contained in chapter 137, entitled 'Peddlers and Their Licenses,' of the Revised Statutes of Missouri of 1879, the material provisions of which are copied in the margin,¹ and which is re-enacted as chapter 125 of the Revised Statutes of 1889.

The information alleged that the defendant on June 26, 1889, in that county, 'did then and there unlawfully deal in the selling of goods, wares, and merchandise, not being books, charts, maps, or stationery, by going from place to place, in a cart or spring wagon, with one horse, to sell the same, and did then and there, while going from place to place to sell said goods, wares, and merchandise aforesaid, unlawfully sell one sewing machine to David Portucheck, without then and there having a license as a peddler, or any other legal authority to sell the same; against the peace and dignity of the state.'

The defendant pleaded not guilty, and was adjudged to be guilty, and sentenced to pay a fine of $50 and costs. He appealed to the circuit court of the county; and in that court the parties, for the purpose of dispensing with evidence, agreed in writing, signed by their attorneys, that the case might be decided by the court on the following agreed statement:

'(1) That for more than five years last past the Singer Manufacturing Company has been, and still is, a corporation duly organized under the laws of the state of New Jersey, and a citizen of that state.

'(2) That on and prior to June 26, 1889, E. S. Emert, defendant, was in the employ of said Singer Manufacturing Company, on a salary for his services, and at said time, in pursuance of said employment, was engaged in going from place to place in said Montgomery county, Missouri, with a horse and wagon, soliciting orders for the sale of Singer sewing machines, having with him insaid wagon a certain New Singer sewing machine, which on said day he offered for sale to various persons at different places in said county, and that on said day the defendant did find a purchaser for said machine, and did sell and deliver the same to David Portucheck, in said county.

'(3) That said Singer machine in question was manufactured by said Singer Manufacturing Company at its works in the state of New Jersey, and that said sewing machine belonged to, and was the property of, said company, and that it was forwarded to this state by said company, and by it delivered to the defendant, as its agent, for sale on its account, and said machine was sold on account of the said manufacturing company; that said machine was of the value of fifty dollars; that the defendant had no peddler's license at said time.'

The court adjudged that the defendant was guilty as charged in the information, and that he pay a fine of $50 and costs. The defendant moved for a new trial, because the facts in the agreed statement constituted no offense, and because the statute on which he had been charged and convicted, being chapter 137 of the Revised Statutes of 1879, was in contravention of section 8 of article 1 of the constitution of the United States, and void in so far as it affected him. The motion for a new trial, as well as a motion in arrest of judgment, was overruled; and the defendant, upon the ground that a constitutional question was involved, and assigning as errors the same causes as in his motion for a new trial, appealed to the supreme court of the state, which affirmed the judgment. 103 Mo. 241, 15 S. W. 81.

The defendant sued out this writ of error, which was allowed by the presiding judge of that court upon the ground that there 'was drawn in question the validity of a statute of, or an authority exercised under, said state, on the ground of their being repugnant to the constitution of the United States, and the decision was in favor of such their validity.'

S. N. Taylor and Lawrence Maxwell, Jr., for plaintiff in error.

[Argument of Counsel from pages 299-306 intentionally omitted]

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R. F. Walker, Atty. Gen. Mo.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

From early times in England and America, there have been statutes regulating the occupation of itinerant peddlers, and requiring them to obtain licenses to practice their trade.

In Tomlin's Law Dictionary are these definitions: 'Hawkers. Those deceitful fellows who went from place to place, buying and selling brass, pewter, and other goods and merchandise, which ought to be uttered in open market, were of old so called; and the appellation seems to grow from their uncertain wandering, like persons that, with hawks, seek their game where they can find it. They are mentioned in St. 33 Hen. VIII. c. 4.' 'Hawkers, pedlars, and petty chapmen Persons travelling from town to town with goods and merchandise. These were under the control of commissioners for

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licensing them for that purpose, under St. 8 & 9 Wm. III. c. 25; 9 & 10 Wm. III. c. 25 (9 Wm. III. c. 27); 29 Geo. III. c. 26.'

The act of 50 Geo. III. c. 41, repealed the prior acts, and imposed a penalty on 'any hawker, pedlar, petty chapman, or any other trading person or persons, going from town to town, or to other men's houses, and travelling, either on foot, or with horse or horses,' and exposing to sale, or selling goods, wares, or merchandise by retail. Upon an information in the court of exchequer to recover penalties under that act, Baron Graham said: 'The object of the legislature, in passing the act upon which this information is founded, was to protect, on the one hand, fair traders, particularly established shopkeepers, resident permanently in towns or other places, and paying rent and taxes there for local privileges, from the mischiefs of being undersold by itinerant persons, to their injury, and, on the other, to guard the public from the impositions practiced by such persons in the course of their dealings, who, having no known or fixed residence, carry on a trade by means of vending goods conveyed from place to place by horse or cart.' Attorney General v. Tongue (1823) 12 Price, 51, 60.

In Massachusetts, both before and after the adoption of the constitution of the United States, successive statutes imposed penalties on hawkers, peddlers, and petty chapmen. 7 Dane, Abr. 72; St. 1713-14, c. 7 (1 Prov. Laws, 720); Id. 1716-17, c. 10; Id. 1721-22, c. 61; Id. 1726-27, c. 4 (2 Prov. Laws, 47, 232, 385); Id. 1785, c. 2; Id. 1799, c. 20; Id. 1820, c. 45; Rev. St. 1836, c 35, §§ 7, 8. The statute of 1846 (chapter 244), repealing the earlier statutes, imposed a penalty on 'every hawker, peddler or petty chapman, or other person, going from town to town, or from place to place, or from dwelling-house to dwelling-house in the same town, either on foot, or with one or more horses, or otherwise carrying for sale, or exposing to sale, any goods, wares or merchandise' (with certain exceptions), without first obtaining a license as therein provided.

In a case under that statute, Chief Justice Shaw said: 'The leading, primary idea of a 'hawker and peddler' is that of an

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itinerant or traveling trader, who carries goods about, in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place of business. Superadded to this, though perhaps not essential, by a 'hawker' is generally understood one who not only carries goods for sale, but seeks for purchasers, either by outcry, which some lexicographers conceive as intimated by the derivation of the word, or by attracting notice and attention to them as goods for sale by an actual exhibition or exposure of them, by placards or labels, or by a conventional signal, like the sound of a horn for the sale of fish. But our statute goes further, and not only proscribes actual hawkers and peddlers, whose employment is that of traveling traders, and thus seems to refer to a business or habitual occupation, but it extends to all persons doing the acts proscribed.' Com. v. Ober (1853) 12 Cush. 493, 495.

In that case it was objected that the statute was repugnant to the constitution of the United States, because at variance with the exclusive right of congress to regulate commerce with foreign nations and among the several states, and with the Indian tribes, to which Chief Justice Shaw answered: 'The law in question interferes with none of these.' 'We consider this as wholly an internal commerce, which the states have a right to regulate; and in this respect this law stands on the same footing with the laws regulating sales of wine and spirits, sales at auction, and very many others which are in force and constantly acted upon.' 12 Cush. 497.

In Michigan a city ordinance, passed under authority of the legislature, prohibiting peddling without a license from the mayor, was held constitutional, and Chief Justice Cooley said: 'That the regulation of hawkers and peddlers is important, if not absolutely essential, may be taken as established by the concurring practice of civilized states. They are a class of persons who travel from place to place among strangers, and the business may easily be made a pretense or a convenience to those whose real purpose is theft or fraud. The

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requirement of a license gives opportunity for inquiry into antecedents and character, and the payment of a fee affords some evidence that the business is not a mere pretense.' People v. Russell (1883) 49 Mich. 617, 619, 14 N. W. 568.

In the courts of many other states, statutes imposing a penalty for peddling without a license all goods of particular kinds, and not discriminating against goods brought from other states or from foreign countries, have been held...