City of Fort Scott v. Pelton

• Decision Date: 07 July 1888
• Citation: 18 P. 954,39 Kan. 764
• Parties: THE CITY OF FORT SCOTT v. H. H. PELTON
• Court: Kansas Supreme Court

18 P. 954

39 Kan. 764

THE CITY OF FORT SCOTT v. H. H. PELTON

Supreme Court of Kansas

July 7, 1888

Appeal from Bourbon District Court.

ON February 27, 1888, H. H. Pelton was found guilty and adjudged to pay a fine of $ 25 and the costs of prosecution, for the alleged offense of canvassing for and selling books in the city of Fort Scott without having a license so to do from said city. Pelton appeals. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

J. D McCleverty, for appellant.

W. W Martin, city attorney, contra.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The facts of this case are substantially as follows: On December 24, 1887, a complaint was filed in the police court of the city of Fort Scott, charging that the defendant, H. H. Pelton, did on said day "canvass for and sell books in the said city of Fort Scott, without having taken out a license for the same." Subsequently, but on the same day, he was arrested, tried, found guilty, and sentenced to pay a fine of $ 10 and the costs of suit. From the judgment rendered on this trial he appealed to the district court of Bourbon county, where he was again tried. This trial was before the court without a jury. The arrest and prosecution were under an ordinance of the city of Fort Scott, which is set out in the bill of exceptions, which provides among other things as follows:

"SECTION 1. It shall be unlawful for any person to pursue the callings or avocations hereinafter named, within the corporate limits of said city, without first having obtained a license therefor.

"SEC. 2. . . . For book and map agents, $ 1 per day, or $ 25 per year; for canvassers of all kinds, $ 1 per day, or $ 25 per year."

The remaining portion of the ordinance is unimportant as to the merits of this case. In the district court this ordinance was read in evidence, and also the following agreed statement of facts. This was all the evidence introduced in the case:

"AGREED STATEMENT OF FACTS.

"It is agreed by and between the parties hereto that the following are the facts in this case, to wit: The defendant H. H. Pelton, is a citizen and resident of Sedalia, in the state of Missouri, and on the 24th day of December, 1887, was engaged in the business of canvassing for the sale of books in the said city of Fort Scott, Kansas--that is, soliciting trade, by the use of sample pages and binding of certain books, for the house for which he worked as a canvasser, and as defendant obtained orders or subscriptions he forwarded said orders to said house, and the books were shipped to Fort Scott for delivery to such subscribers, said house being the Riverside Publishing Company, a corporation existing and acting under the laws of the state of Ohio, and doing business in Cincinnati, in the said state of Ohio, where its publishing house and principal place of business was then situated; that while he was so engaged, and in the act of canvassing for said firm, and for the claimed offense of not having taken out a license in the said city of Fort Scott for doing said business, said defendant, H. H. Pelton, was arrested under a warrant duly issued out of the police court in and for the said city of Fort Scott, Kansas, and carried before the Hon. A. H. Sargent, police judge in and for said city of Fort Scott, Kansas, and was adjudged guilty and fined for the offense of canvassing in said city on the said 24th day of December, 1887, without having taken out a license for the same. The said corporation, the Riverside Publishing Company, is engaged in publishing and selling books, among them being Ridpath's Universal History, which is sold only on subscription, for the sale of which said defendant...