Commonwealth v. Myer

• Decision Date: 16 January 1896
• Citation: 92 Va. 809,23 S.E. 915
• Parties: COMMONWEALTH v. MYER.
• Court: Virginia Supreme Court

23 S.E. 915

92 Va. 809

COMMONWEALTH

v.MYER.

Supreme Court of Appeals of Virginia.

Jan. 16, 1896.

Constitutional Law — Interstate Commerce — License to Sell Goods.

Act 1889-90, p. 217, § 32, requiring the payment of a license by peddlers, but providing that a manufacturer within this state who has been assessed and paid up on the capital employed by him may peddle articles manufactured by him. is unconstitutional, as a discrimination against the products and citizens of other states.

Appeal from hustings court of Richmond; S. B. Witt, Judge.

Prosecution against John Myer for peddling without a license. There was a judgment for defendant, and the commonwealth appeals. Affirmed.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Edmund Waddill, Jr., for appellee.

KEITH, P. At the April term, 1895, of the hustings court for the city of Richmond, the attorney for the commonwealth proceeded against John Myer by information, setting forth that he was not a manufacturer, nor a manufacturer assessed with the tax imposed upon his capital employed under Schedule C of an act (Acts 1889-90, p. 200) to provide for the assessment of taxes on persons, and on licenses to transact business, and for the support of the government, but is one who has no regular place of business in this city, open at all times in regular business hours; and that on the 4th day of April, 1895, within the jurisdiction of the hustings court of the said city, he was engaged in going from house to house and street to street, with a wagon and horse, offering for sale an article known as "soapine, " and did sell and offer for sale the said merchandise in the said city to one Mrs. James Woolridge, without first having obtained the license required by law. To this information John Myer appeared, and filed a general demurrer, which was overruled, and thereupon he pleaded "Not guilty"; and a jury was impaneled for his trial, which resulted in his acquittal. Upon the petition of the commonwealth, through its attorney general, a writ of error was awarded by this court.

The record contains several bills of exceptions, in the first of which the evidence is set out, from which it appears that every fact set out in the information was sufficiently proven. It also appears from the evidence of the accused, who was examined as a witness on his own behalf, that he is an employe of the Kendall Manufacturing Company, whose domicile is in the state of Rhode Island; that he did not own or have any interest in the merchandise which he offered for sale, nor in the proceeds of such sale; that soapine was manufactured by the Kendall Company in the state of Rhode Island, and that he was paid regular wages for his services as the agent and salesman of the said company, and that the soapine so offered by him for sale was the property of the Kendall Manufacturing Company; that it was shipped by the said company to him as their agent in Richmond, and by him offered for sale, and sold for the company; that he made daily reports of sales, and received weekly wages; that all the officers of the company are nonresidents of the state of Virginia, and that he was also a nonresident of the state of Virginia, being a citizen of the state of Maryland; that the merchandise offered for sale was the product and manufacture of the Kendall Company; that it was not injurious to health, nor damaging to morals, but to be used in cleansing and purifying, and had been for a long time used for these purposes; and that the said company and the said Myer have no place of business in Richmond. Thereupon the commonwealth asked the court to instruct the jury as follows: "If the jury believe from the evidence that John Myer did, as charged m the information, go from street to street in the city of Richmond, with a wagon and horse, and that in the wagon said Myer carried merchandise called 'soapine, ' and further believe that said Meyer, without the license required by law, sold, or offered for sale, said merchandise, viz. soapine, then they must find him guilty, and assess him with a fine, so that the same shall be not less than one hundred ($100) nor more than five ($500) hundred dollars for each offense, " —which was refused. And Myer, the defendant, asked the following instructions, which were given: "The court instructs the jury that if they believe from the evidence that the defendant, at the time he offered to sell, and sold, the commodity in the information mentioned, known as 'soapine, ' was the employte or representative of the Kendall Manufacturing Company; and that the said defendant had no other interest in said goods; and that the said goods were the product and manufacture of said Kendall Manufacturing Company; and that the company, as such manufacturers, at the time of the sale, were engaged, through their representative, the said defendant, in selling and vending their products, —then they should find the defendant not guilty." "The court further instructs the jury that if they believe from the evidence that the defendant, at the time he offered to sell, and sold, the commodity in the information mentioned known as 'soapine, ' was in the employ of the Kendall Manufacturing Company, of the state of Rhode Island; that such goods were the product and manufacture of the Kendall Manufacturing Company; and that the alleged offense, mentioned in the information, consisted of said nonresident corporation, through its employe, the defendant, also a nonresident, offering its said commodity, duly manufactured by it, for sale in the city of Richmond, Va.; and that such article was not injurious in its character, either to public health or morals, but was useful as a cleansing commodity, to be used for general household purposes, and, as such, had been long in general use, —then they must find the defendant not guilty, although they may believe he had taken out no license to sell such commodity." And to the refusal of the court to give the instruction asked by it, and to the giving of the instructions asked by the defendant, the commonwealth excepted.

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