Case v. Comptroller of State of Md.

• Decision Date: 16 March 1959
• Docket Number: No. 155,155
• Citation: 219 Md. 282,149 A.2d 6
• Parties: Whitfield B. CASE, etc. v. COMPTROLLER OF the STATE OF MARYLAND.
• Court: Maryland Court of Appeals

Page 282

219 Md. 282

149 A.2d 6

Whitfield B. CASE, etc. v. COMPTROLLER OF the STATE OF MARYLAND.

No. 155.

Court of Appeals of Maryland.

March 16, 1959.

A. Adgate Duer and Robert C. Prem, Baltimore (Niles, Barton, Yost & Dankmeyer, Baltimore, on the brief), for appellants.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and THOMAS J. KEATING, Jr., J., Special Judge.

PRESCOTT, Judge.

The appellant filed a bill of complaint in the Circuit Court of Baltimore City for a declaratory judgment to have the court determine that it driver-salesmen are not hawkers and peddlers within the meaning of Code (1957) Article 56, Section 21. The appellee filed a combined demurrer and answer to the bill of complaint. Testimony was heard by the chancellor, who delivered an oral opinion at the conclusion thereof, holding that the appellant's driver-salesmen were hawkers and peddlers within the meaning of the statute. From a decree dismissing the bill of complaint, the appellant has filed the present appeal. The appellee waived any consideration of its demurrer.

Appellant, trading as the W. B. Case Box Lunch Company, is engaged in the preparation and sale of box lunches and other items, such as individual sandwiches, pie, cake, milk, orange drink, canned soup, and hot coffee in plants and factories in the Baltimore area. The food is prepared at the appellant's place of operation in Baltimore City, then it is placed on trucks and sent to various industrial plants for sale. At the present time, the appellant has nine trucks serving eight routes, one truck being held in reserve for emergencies. Each route is served daily by the same driver-salesman; and each route calls for stops at specified factories to be made in regular rotation daily at designated times. No stops are made between the designated points.

When the driver-salesman arrives at his designated points-of-call, the appellant's method of operation varies from factory to factory. Approximately 90% of its business in the Baltimore area is done inside the plants and factories. In some plants, where cafeteria service used to be provided and has been discontinued or where a lunchroom is provided but without cafeteria facilities, fold-away type tables are used to display the appellant's merchandise, and the employees of the plant come forward and select what they wish to purchase. This is a cafeteria-type arrangement. In other plants the driver-salesman will, through the use of mobile units, dollies and baskets, take his box lunches and sandwiches right into the plant and serve the employees at their workbenches or desks.

The other 10% of the appellant's business is conducted outside of plants and factories. At certain designated stops, the driver-salesman will park his truck, in some cases on the property of a factory and in other instances on the public street, and serve the employees as they come to the truck.

The trucks used by the appellant have the Case Box Lunch Company name on the side, but there are no noise-making devices thereon to attract attention nor is any such device or signal used.

Before servicing a new plant, the appellant first seeks the permission of the plant management. If permission be granted, the appellant's products are demonstrated to the employees of the plant or circulars are distributed and orders are taken from the employees for the first day's operation, before one of the appellant's trucks makes a stop. Some plants are served on what is termed on-the-public-street basis, when the plant management refuses permission to have it done in any other manner.

After the first day of servicing a new plant, the driver-salesman makes up his own individual order of merchandise for his route from a menu distributed to him the day before the items will be delivered. The menu follows a rather regular pattern for the same day of different weeks even though it differs considerably from day to day. From past experience in selling to regular customers from day to day, the driver-salesmen claim they can reasonably anticipate what they will sell even though there are no standing orders, or previously written orders, as such. There is a considerable difference between the type of orders submitted by salesmen on different routes. The plant enters into no contractual arrangement for the supplying of these lunches, and neither the appellant nor the plant can compel the continuance of the operation.

The only question involved is whether, under the provisions of Code (1957) Article 56, Section 21, which provides that 'No hawker or peddler shall * * * 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 * * *,' the appellant is required to take out such licenses for its driver-salesmen.

This Court has stated that no precise and inflexible rule regarding the enforcement of the hawkers and peddlers statute can, or should, be laid down as...