Crenshaw v. State

• Decision Date: 11 July 1910
• Citation: 130 S.W. 569
• Parties: CRENSHAW et al. v. STATE.
• Court: Arkansas Supreme Court

130 S.W. 569

CRENSHAW et al. v. STATE.

Supreme Court of Arkansas.

July 11, 1910.

Appeal from Circuit Court, Union County; Geo. W. Hays, Judge.

A. C. Crenshaw and another were convicted of violating the peddling statute of 1909 (Acts 1909, p. 292), and they appeal. Affirmed.

Marsh & Flenniken and Moore, Smith & Moore, for appellants. Hal L. Norwood, Atty. Gen., and Wm. R. Rector, Asst. Atty. Gen., for the State.

McCULLOCH, C. J.

Appellants were tried before a justice of the peace of Union county and convicted of a charge of violating the peddling statute of 1909 (Laws 1909, p. 292), which provides that "before any person, either as owner, manufacturer, or agent, shall travel over and through any county and peddle or sell any lightning rod, steel stove range, clock, pump, buggy, carriage or other vehicle, or either of said articles, he shall procure a license," etc. On appeal to the circuit court they were again convicted and appealed to this court.

The case was heard on the following agreed statements of facts:

"The Wrought Iron Range Company is a corporation organized under the laws of Missouri, with its general offices located at St. Louis, Mo., in which city and state it also has a factory at which are manufactured the ranges sold by its traveling salesmen throughout Union and other counties of Arkansas, and other states of the United States.

"The manner and form in which said company is conducting its business in Union and other counties of Arkansas is as follows: R. L. Sutton, an employé of the Wrought Iron Range Company, and known as a division superintendent, has general supervision of said company's business in Union and other counties of Arkansas. Under the immediate supervision and direction of said Sutton are other employés of said company known in the business as samplemen or salesmen, and two other employés of said company known in its business as deliverymen. All of said employés are paid for their services stipulated compensations by said company, and none of said employés has any financial or monetary interest in the property of said company located in Union county, or in the sales or proceeds of sales made by them in said county or elsewhere in the state of Arkansas, other than compensation hereinbefore referred to.

"Each of said employés of said company, known as salesmen, is furnished by said company with a sample range, sample wagon and team, and is sent into such territory in Union or other counties as may be designated by said Sutton, to solicit orders for ranges similar to the sample range exhibited to prospective purchasers. Where orders for ranges are taken by said salesmen the purchaser signs a note or order, one half payable in October, 1910, and the other half payable in October, 1911. Said note or order contains an express stipulation that same shall be void as against the purchaser in the event said company fails to deliver the range so ordered within 60 days from date.

"All orders so taken by said salesmen are forwarded by them to the said Sutton, who investigates the credit of said purchasers, and if same is found satisfactory he proceeds to have said orders filled within 60 days' limit. Such deliveries of the ranges so sold or ordered are made through or by the employés of said company hereinbefore referred to as deliverymen, each one of whom is furnished with a delivery wagon and team by said company for such purpose.

"All the sample ranges, all ranges delivered to said purchasers, all the sample wagons and teams, and all the delivery wagons and teams hereinbefore referred to, are the sole and exclusive property of said company. Under no circumstances do the employés hereinbefore referred to as salesmen, sell, or offer to sell or deliver, the sample ranges intrusted to them by said company. Under no circumstances does any one of said salesmen deliver to purchasers the ranges, orders for which have been taken either by himself or any other of said salesmen. Under no circumstances do any of said deliverymen sell, or offer to sell, or take orders for, ranges, or to deliver any ranges other than those for which orders have previously been taken by the employés hereinbefore referred to as salesmen. All ranges so owned and manufactured are shipped in carload lots to Union county; each car containing 60 separate and distinct ranges; each car being consigned by said company to itself, in care of said R. L. Sutton, its employé.

"A carload of ranges was shipped from St. Louis, Mo., to El Dorado, Ark., for the purpose of filling orders previously secured by said soliciting agents or traveling salesmen. Upon the arrival of said car at El Dorado the ranges were taken from said car, loaded on said delivery wagons and delivered by said deliverymen to said purchasers in the precise shape, condition, form, and packages in which they were delivered by said company to the common carrier at St. Louis, Mo. * * *

"It is further agreed by and between the state of Arkansas, through its prosecuting attorney, and the defendants herein, that E. L. Ganaway and W. W. Dennis are salesmen of the Wrought Iron Range Company, and have in Union county, Ark., within the last 12 months exhibited sample ranges and solicited and taken orders for them and have taken notes for the same, doing all of said business in the manner hereinbefore stated.

"That A. C. Crenshaw and P. L. Hadler are acting as deliverymen in the employ of said Wrought Iron Range Company, and have in the manner hereinbefore set forth delivered ranges to parties in Union county, Ark., who had previously given orders to the said above-named salesmen within 12 months before that time.

"That all of said persons above named are hired employés of the said Wrought Iron Range Company and have been arrested, and that neither of said parties nor the Wrought Iron Range Company have paid any license in Union county, Ark."

We decided in State v. Byles, 126 S. W. 94, that the statute in question is valid, but it is now insisted that, as applied to the transactions set forth in the statement, it is a burden on interstate commerce, and to that extent void. Appellant Ganaway solicited orders for ranges, and appellant Crenshaw made deliveries thereof after they were ordered and shipped to El Dorado, Ark., for delivery to the respective purchasers. They were working under the same employer, and pursuant to a plan whereby one was to solicit orders and the other to deliver the articles sold. So if the two acts constituted an offense when performed by one person, its unlawful character would not be changed when performed by two persons, acting in concert, but both would be guilty.

The statute is directed against peddling, and undertakes to define what constitutes peddling within the meaning of the statute. This definition varies from the common-law definition of peddling, in that it is not essential that the vendor deliver his wares at the time he makes sales thereof, in order to come within its terms. In the statutory definition the words "peddle" and "sell" are used synonymously, but in order to come within the terms of the statute it is essential that a sale must be by one traveling over and through the county. The statute does not reach to mere sales. In other words, one who simply brings his wares into a county and sells them does not fall within the statute. There must be added the element of traveling from place to place, over and through the county, for the purpose of selling, in order for the statute to reach to it. It should also be especially noted that the statute does not discriminate against nonresidents of the state or of any county, nor against the wares manufactured without the state. It applies to all alike which fall within the description.

Does the method in which appellants conducted business for their employer exempt them from the operation of the statute? We think not.

The opinion of the Supreme Court of the United States, delivered by Mr. Justice Gray in Emert v. Missouri, 156 U. S. 296, 15 Sup. Ct. 367, 39 L. Ed. 430, announces the law applicable to the case and sustains the views we express. In that case, the agent of a nonresident manufacturer of sewing machines was engaged in peddling machines in Missouri without obtaining a license as required by the statutes of that state. He asserted his right to sell free of license, on the ground that the transaction constituted interstate commerce. All of the prior decisions of that court are reviewed, and the following conclusions announced: "The statute in question is not part of a revenue law. It makes no discrimination between residents or products of Missouri and those of other states; and manifests no intention to interfere, in any way, with interstate commerce. Its object, in requiring peddlers to take out and pay for licenses, and to exhibit their licenses, on demand, to any peace officer, or to any citizen householder of the county, appears to have been to protect the citizens of the state against the cheats and frauds, and even thefts, which, as the experience of ages has shown, are likely to attend itinerant and irresponsible peddling from place to place and from door to door. * * * The necessary conclusion, upon authority, as well as upon principle, is that the statute of Missouri, now in question, is no wise repugnant to the power of Congress to regulate commerce among the several states, but is a valid exercise of the power of the state over persons and business within its borders."

It is true, in that case the vendor carried the machines with him from place to place, and made deliveries as he sold them. But we cannot see that that alters the principle, for the Legislature has the power to define the act of peddling, and that definition should be upheld by the courts, unless it is manifestly evasive.

The other decisions of the Supreme Court of the United States which are relied on by counsel do not conflict with the case above cited. Robbins v. Shelby County...