Brown v. State, 46.

• Decision Date: 29 November 1939
• Docket Number: No. 46.,46.
• Citation: 9 A.2d 209
• Parties: BROWN v. STATE.
• Court: Maryland Court of Appeals

9 A.2d 209

BROWN

v. STATE.

No. 46.

Court of Appeals of Maryland.

Nov. 29, 1939.

[Copyrighted material omitted.]

Appeal from Criminal Court of Baltimore City; Eli Frank, Judge.

Homer Brown was convicted of operating as a hawker and peddler of ice cream without a state license, and he appeals.

Affirmed.

Argued before BOND, C. J., and OFFUTT, PARKE, SLOAN, SHEHAN, and DELAPLAINE, JJ.

G. C. A. Anderson, of Baltimore (Keech, Carman, Tucker & Anderson, of Baltimore, on the brief), for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen., and Douglas N. Sharretts, Asst. State's Atty., of Baltimore (William C. Walsh, Atty. Gen., and J. Bernard Wells, State's Atty, of Baltimore, on the brief), for Baltimore City.

BOND, Chief Judge.

The appellant was indicted in Baltimore City as a hawker and peddler of ice cream without the state license required by the Code, art. 56, §§ 26, 27, 29 and 30, convicted, and sentenced to pay a fine; and on appeal he presents for review actions of the trial court in overruling his demurrer to the indictment, and in excluding evidence of the previous customary inactivity of the police of the City with respect to such a trader.

The indictment contained six counts, but a verdict of "Not guilty confessed" entered on all but the second, third and fourth, has left those alone to be considered on review of the ruling on demurrer. Wimpling v. State, 171 Md. 362, 369, 189 A. 248. And they charged that Brown, being a hawker and peddler, offered to trade, barter and sell, did trade, barter and sell, and was found offering to trade, barter and sell the ice cream without the license required by the law. Section 26 of Article 56 of the Code provides that, "No hawker or peddler shall buy for sale out of the State, or buy to trade, barter or sell, or offer to trade, barter or sell within the State any goods, wares or merchandise until he shall have first taken out a license for that purpose, but nothing in this section shall apply to hawkers and peddlers of oysters and fish in their unpre-served and natural condition, or of fruits and vegetables perishable in their nature that are sold in their natural condition in this State." Section 27 fixes the license fees, varying in amount according as the hawkers and peddlers affected are to travel on foot, with horse and wagon, or with a motor truck or motor vehicle of any description. The fee for those traveling in motor vehicles is $300. Section 29 provides for the apprehension of any hawker and peddler "who may be found trading, bartering or selling, or offering to trade, barter or sell" without license; and section 30 provides the fine when "said hawker or peddler has bought, traded, bartered or sold or offered to buy, trade, barter or sell" without license.

It is first complained that these sections requiring licenses for hawkers and peddlers are so vague and indefinite in meaning under modern conditions that it is impossible to ascertain who are within their terms. But there is no extraordinary difficulty in determining who are hawkers and peddlers. The definition is established with clearness, and in this and many other jurisdictions the courts have met with no unusual difficulty in distinguishing them and enforcing the law. See Crout v. State, 157 Md. 387, 388, 146 A. 241; State v. Amick, 171 Md. 536, 545, 189 A. 817; Landham v. LaGrange, 163 Ga. 570, 136 S.E. 514; People v. Riksen, 284 Mich. 284, 279 N.W. 513; Hastings v. Bremerton, 159 Wash. 621, 294 P. 551; Neiman-Marcus Co. v. Houston, Tex.Civ.App.1937 109 S. W.2d 543.

Statements of the meaning have differed somewhat, naturally, but all agree that the words refer to those who go about seeking sales and deliveries of articles to possible customers. Moving or itinerant trading, sales negotiated along the way, with simultaneous deliveries, are essentials. The mode of travel is not important, especially in this case, as the appellant was moving about in a motor vehicle, which is a mode within the express terms of the law. Code, art. 56, § 27. Com. v. Ober, 12 Cush., Mass., 493; Allport v. Murphy, 153 Mich. 486, 116 N.W. 1070; St. Louis v. Meyer, 185 Mo. 583, 84 S.W. 914; Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430; Note: "Who is a peddler or hawker within statutory or municipal regulations," L.R.A.1916B, 1293; and on the same, Ann.Cas.1912D, 1290, 1291. The appellant, carried the ice cream along for possible customers in a truck with conspicuous marking on the sides, announced his coming by ringing bells, and made sales and deliveries where he could; and he answers to all the tests of a hawker and peddler. There is testimony that some customers bought from him regularly as he came along, some were only occasional buyers, but those facts do not affect his position as a hawker and peddler. And again, the facts that the goods belonged to his employer and that he was selling on commission do not remove him from the class. Wrought Iron Range Co. v. Johnson, 84 Ga. 754, 755, 11 S.E. 233, 8 L.R.A. 273; In re Wilson, 8 Mackey 341, 19 D.C. 341, 348, 12 L.R.A. 624; Commonwealth v. Gardner, 133 Pa. 284, 19 A. 550, 7 L.R. A. 666, 19 Am.St.Rep. 645.

It is objected that there is uncertainty and confusion in the law which renders it unenforceable, in that no section requires a license for the trading, bartering and selling, or offering to do so, made punishable under sections 29 and 30. Those sections in themselves make it unlawful to trade, barter or sell, or to offer to trade, barter and sell without a license, but it is contended that the license is not identified because section 26 requires a license only for buying, and sections 29 and 30 cannot be construed to refer to that license. But the court is of opinion that the later sections do require the license previously described for the acts named in them, and there is no omission in the law as contended. Further, section 26 has been considered by the court to require the license for offering to trade, barter and sell. The appellant's construction is as if the section read: No hawker or peddler shall buy to trade, barter or sell, or to offer to trade, barter or sell within the State, thus merely forbidding the buying for the purposes specified, except under license. And the words are susceptible of that construction. In Banks v. McCosker, 82 Md. 518, 34 A. 539, 51 Am.St.Rep. 478, however, on a question whether sale by a hawker and peddler without a license under the section rendered illegal a promissory note given in payment, it appears to have been assumed that offering to trade, barter or sell or doing so, without reference to buying, was forbidden except under license. And the cases of Crout v. State, 157 Md. 387, 388, 146 A. 241, and State v. Amick, 171 Md. 536, 545, 189 A. 817, are authorities for the view that the sections taken together require a license irrespective of the buying. The Court concludes that the objection considered cannot save the appellant from the requirement.

It is contended, further, that section 26 requires that which is not constitutionally possible in its imposition of the license requirement on buying for trading, bartering or selling outside the state. This state, it is objected, cannot tax or regulate buying here according to the nature of disposal of the goods outside the state. But a defect in that respect would not prevent enforcement of the law against the appellant, who does not himself buy, and who sells within the state. He would have no grievance from that requirement and could not object because of it. In State v. Case, 132 Md. 269, 272, 103 A. 569, 570, objection to a license requirement was made by a resident on the ground that the license tax law discriminated against nonresidents and was therefore unconstitutional and unenforceable, but the court said, "being a resident and a party not discriminated against, he cannot take advantage in this court of that point, for his rights are not affected." See cases there cited, and Clark v. City of Kansas City, 176 U.S. 114, 118, 20 S.Ct. 284, 44 L.Ed. 392; Winter v. Barrett, 352 Ill. 441, 186 N.E. 113, 89 A.L.R. 1398.

Further objections are made on constitutional grounds. It is objected that this license law is a police regulation in the guise of a revenue measure, that the license fees are so large as to be destructive of the business, and that the exemption of hawkers and peddlers of fish, oysters and perishable fruits and vegetables improperly discriminates against those left subject to the law.

It was held in Banks v. McCosker, supra, that the statute was a revenue measure, and not an exercise of the power to protect the public, and therefore the selling was not so prohibited as to render the contract of sale illegal. But the appellant thinks that it survives under more modern conditions only as a police regulation. The court does not, however, find foundation for that change in construction. The requirement seems indistinguishable from any other trade or occupational tax; and this is so even if it may be assumed that it is intended to equalize the public burdens as between hawkers and peddlers and traders in fixed situations, or has other collateral purposes. Speaking of a tax on junk dealers, the court, in State v. Shapiro, 131 Md. 168, 173, 101 A. 703, 705, Ann.Cas. 1918E, 196, said, "The license provision under inquiry is plainly a revenue measure. It is enacted and codified under the head of 'Traders' Licenses.' It does not purport to have any relation to the police power, although in determining the amount of the fees to be paid by junk dealers the Legislature may properly have taken into consideration the fact that the business is an appropriate object of police supervision, especially in a large city, because of the opportunities it often affords for the disposition of stolen property." "Collateral purposes or motives of a Legislature in levying a tax of a kind within the reach of its lawful power are matters beyond the scope of...