Com. v. Newhall

• Decision Date: 16 October 1895
• Citation: 41 N.E. 647,164 Mass. 338
• Parties: COMMONWEALTH v. NEWHALL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 338

41 N.E. 647

COMMONWEALTH v. NEWHALL et al.

Supreme Judicial Court of Massachusetts, Berkshire.

October 16, 1895

COUNSEL

C.L. Gardner, Dist. Atty., for the Commonwealth.

H.C Joyner, for defendants.

OPINION

BARKER J.

By the statute definition, all persons "who engage in a temporary or transient business in this state, either in one locality or in travelling from place to place selling goods wares and merchandise and who for the purposes of carrying on such business hire, lease or occupy any building or structure for the exhibition and sale of such goods, wares and merchandise," are itinerant vendors. St.1890, c. 448, § 1. The defendants' first contention is that they are not within this definition. They are part of a traveling troupe which is composed of Indians, a comedian, and a physician, and which gives entertainments consisting of songs, dances, farces, Indian ceremonies, and lectures. The purpose of the troupe, and of their entertainments, is to advertise certain proprietary medicines. The troupe hired and occupied for two weeks a public hall in Great Barrrington, and there offered for sale and sold, both during the entertainments, which were in the evenings, and during the daytime, bottles of the medicines, to such parties as called for them. Without considering whether the statute was meant to include all traveling troupes which, in the course of some entertainment to which the public are admitted, sell books explanatory of the entertainment, refreshments, or like wares, we are of opinion that upon the evidence the defendants were clearly engaged in the business of selling merchandise, and were for that purpose temporarily hiring and occupying a building for the exhibition and sale of their goods, and so within the statute. Whether St.1890, c. 448, and St.1894, c. 525, are open to objection as imposing a tax prohibited by the constitution of the commonwealth, is a question not raised, and upon which we express no opinion.

The defendants also contend that because they were employed by a foreign company, and had in their possession its goods imported into this commonwealth for sale, and offered for sale here by the defendants in the same form and shape in which the goods were imported, the defendants were not liable for not having licenses as itinerant vendors. This contention is not put upon the ground that the goods offered for sale were in the original packages, but...