Graffty v. City of Rushville

• Citation: 8 N.E. 609, 107 Ind. 502
• Case Date: October 05, 1886
• Court: Supreme Court of Indiana

107 Ind. 502
8 N.E. 609

Graffty
v.
City of Rushville.

Supreme Court of Indiana.

October 5, 1886.

Appeal from Rush circuit court.

Thomas & Spann and Chas. A. Dryer, for appellant. Puntennay & Irvin, for appellee.

Mitchell, J.

Subdivision 23 of section 3106, Rev. St. 1881, empowers cities incorporated under the general law of the state of Indiana “to regulate the ringing of bells and crying of goods, and to restrain hawking and peddling.” Assuming to act under the authority thus conferred, the common council of the city of Rushville, on the tenth day of September, 1883, passed an ordinance of the tenor following: “That every person who peddles, hawks, sells, or exhibits for sale any goods, wares, or merchandise, not the growth or manufacture of Rush county, Indiana, or shall take orders for any such goods, wares, or merchandise, for immediate or future delivery, about the streets, alleys, hotels, business houses, private dwellings, or at any public or private place in said city, without having paid the marshal from two to six dollars for each day, six to ten dollars for each week, and ten to twenty dollars for each month, at the discretion of the marshal, such person may desire to follow such business within said city, and receiving a permit therefor from the mayor of said city shall, upon conviction thereof, be fined, forfeit, and pay to said city a sum not exceeding ten dollars for each day such person shall continue such business without receiving a permit as in this section set forth: provided, that nothing in this section shall be construed to apply to any citizen of said city, nor any commercial travelers, known as drummers, runners, or agents traveling for any wholesale house selling to dealers.”

James F. Graffty was found guilty of a violation of the foregoing ordinance, upon the complaint of the city of Rushville, which charged him with having, on the fourth day of September, 1885, unlawfully “taken orders from a citizen of said city, whose name is unknown, for shirts, socks, and men's furnishing goods, for future delivery, about the streets, alleys, and business houses within said city; the said shirts, socks, and men's furnishing goods not being the manufacture of Rush county, Indiana, * * * and the said James F. Graffty not being then and there a resident of said city.”

The evidence fairly tends to show that Graffty resided in Indianapolis, and was in the employ of Paul H. Krauss, a manufacturer of and dealer in shirts, underwear, and gentlemen's furnishing goods, residing and having his business house in the city of Indianapolis. The evidence reasonably tends to show that Graffty's manner of business was to carry samples of the different articles manufactured or sold by his employer, and exhibit them from house to house, or from one business place to the other, to individuals not dealers, soliciting orders from each individual for such articles, and in such quantities as the individual might require or purchase. The goods thus ordered were to be delivered at a future day, by express or otherwise. Graffty delivered no goods, nor did he carry with him any goods except the samples.

The consideration of two questions is involved in the discussion upon the errors assigned: First, was the business of the appellant, conducted in the manner described, within the prohibition of an ordinance such as might lawfully

[8 N.E. 610]

have been enacted under the statute giving cities the power to restrain hawking and peddling? Second, was the ordinance in question, which required license only in case the goods, wares, and merchandise hawked or peddled were not the growth or manufacture of Rush county, and only in case the hawker or peddler was not a resident of the city of Rushville, a valid exercise of power?

Pertinent to the first proposition it may be said the effect of the ordinance under consideration cannot be enlarged, nor its operation rendered more comprehensive, by the attempt to bring within its terms persons who sell, or exhibit for sale, or those who take orders for goods, wares, and merchandise for future delivery, unless such sales or exhibitions are made in such manner as to constitute the persons who make them hawkers or peddlers. The extent of the power conferred upon cities by the statute in this connection is to restrain hawking and peddling, and any mode of selling goods which does not legitimately fall within these terms cannot be made unlawful by being specifically described and restrained in the ordinance. Such sales and exhibition of wares, and such orders for the future delivery of goods, and such only as are embraced by the terms “hawking and peddling,” may be restrained by ordinance duly passed under the power conferred by the statute above set out. It becomes important, therefore, to inquire what constitutes a hawker or peddler.

In the case of Com. v. Ober, 12 Cush. 493, Shaw, C. J., said: “The leading primary idea of a hawker and peddler is that of an itinerant or traveling trader who carries goods about, in order to sell them, and who actually sells them, to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place of business.” The term “hawking” also embraces the business of one who sells or offers goods for sale on the streets, by outcry, or by attracting the attention of persons to them, by exposing them in a public place, or by placards, labels, or signals. Webster defines “peddling” thus: “Traveling about and selling small wares.” “Hawking:” “Offering for sale in the streets by outcry.” Another definition runs thus: “A peddler, petty chapman, or other trading person, going from town to town, or to other men's houses, either on foot or with horse or horses, or otherwise carrying to sell, or exposing to sale, any goods, wares, or merchandise.” Rapalje, Law Dict. tit. “Hawker.” In Jacob's Law Dictionary a definition indicative of the disfavor in which the common law held the vocation is as follows: “Hawkers: Those deceitful fellows who went from place to place, buying and selling brass, pewter, and other goods and merchandise, which ought to be uttered in open market, were of old so called; and the appellation seems...