State v. Ivey

• Decision Date: 21 February 1906
• Citation: 53 S.E. 428,73 S.C. 282
• Parties: STATE v. IVEY.
• Court: South Carolina Supreme Court

53 S.E. 428

73 S.C. 282

STATE v. IVEY.

Supreme Court of South Carolina

February 21, 1906

Appeal from General Sessions Circuit Court of Sumter County; Watts Judge.

W. E Ivey was convicted of hawking and peddling, and from a judgment of the court of general sessions reversing a judgment of the magistrate, the state appeals. Affirmed.

John S Wilson and L. D. Jennings, for the State. John H. Clifton for respondent.

POPE C.J.

A prosecution in the magistrate's court of H. Harby, Esq., of Sumter county, S. C., was instituted about the 14th of October, 1905, against W. E. Ivey, as defendant, on the charge of the purchase and delivery of a package of medicine, in violation of section 1, of an act entitled "An act to prevent traveling vendors from plying their vocation," approved 26th of February, A. D. 1902, pp. 1101, 1102. After the introduction of testimony on both sides, the magistrate found the defendant guilty and sentenced him to pay a fine of $30 or to be imprisoned in the county jail for 30 days. From this judgment the defendant appealed. His appeal came on to be heard before his honor, Judge R. C. Watts, at the regular term of the court of general sessions of Sumter county, on the 26th day of October, 1905.

After the hearing, the following order was passed: "The above stated case was heard by me on an appeal from the court of magistrate, after a full hearing and argument by L. D. Jennings for the state and John H. Clifton for the defendant. I am satisfied that the defendant was not engaged in hawking or peddling medicine, drugs or compounds, contrary to the statute, known as the hawker and peddler act, and upon the contrary it appears that the defendant was merely soliciting orders for the future delivery of a package of medicines, which at the time of the solicitations of orders therefor was not within the state of South Carolina, and consequently not the subject of legislative control upon the part of the said state. The defendant was in no sense a hawker or peddler, the testimony showing that he neither carried around from place to place for the purpose of selling, or offering for sale, the prohibited commodities, nor did he sell or offer to sell the same, and the testimony further shows that the defendant was engaged in an interstate transaction, and is, therefore, protected by the law and regulations of interstate commerce, and consequently cannot be made to pay license for such interstate business. Therefore it is ordered, on motion of John H. Clifton, defendant's attorney: That so far as the exceptions of the defendant to the rulings and judgment of the magistrate raise or point out errors made by the magistrate contrary to and inconsistent with this order and the findings herein made, the same be, and hereby are, sustained. It is further ordered: That the judgment of the magistrate, made and pronounced against the said defendant, be, and the same is, hereby overruled; the prosecution heretofore commenced against the defendant be dismissed, and that the cash bond heretofore deposited by defendant in lieu of recognizance, pending hearing of this appeal, be refunded to him or his attorney."

From this judgment the state has appealed upon the following grounds: "(1) Because his honor erred in holding that at the time the defendant solicited orders for the sale of medicine that the same was not within the limits of the state and subject to legislative control; whereas, his honor should have held that the soliciting of orders and offering for sale medicines without license within the state of South Carolina constituted an offense, and that it made no difference whether the medicine offered to be sold, or for which the defendant was soliciting orders, was within the limits of the state of South Carolina or not. (2) Because his honor erred in holding that the defendant, as a matter of law, was engaged in interstate commerce, and was, therefore, protected by the laws regulating interstate commerce, and was not liable under the hawkers and peddlers act; whereas, his honor should have held that the defendant was not engaged in interstate commerce business, but that he went from place to place within the county of Sumter, and state of South Carolina, exhibiting a sample case of medicine and selling medicine for future delivery, which the testimony showed was actually shipped into the state in large bulk and then taken by representatives of the defendant and distributed from place to place to the persons to whom he had made sale when going around with the samples, which his honor should have held constituted the crime of hawking and peddling, as laid down by this court in the case of State v. Moorehead, 42 S.C. 211, 20 S.E. 544, 26 L. R. A. 585, 46 Am. St. Rep. 719, in which case the court referred to Amer. & Eng. Enc. of Law, pages 307, 308, in which the definition of hawkers and peddlers is given as follows: 'A person is a hawker and peddler where he transfers the merchandise from place to place by means of public conveyance or otherwise, as well as where be himself carries it, and one who goes from house to house soliciting orders for the purchase of goods to be delivered in the future is likewise a hawker and peddler, as well as one who goes about the country bartering merchandise for such articles as he can get in exchange.' Therefore, his honor erred, as is respectfully submitted, in holding that the defendant, in going from place to place taking orders for the future delivery of medicines, was not a hawker and peddler under the statute. (3) Because his honor erred in holding that the defendant, in going from place to place within the state soliciting orders, selling medicine, and taking notes and security for the...