Hurford v. State

• Decision Date: 20 September 1892
• Citation: 20 S.W. 201
• Parties: HURFORD v. STATE.
• Court: Tennessee Supreme Court

Page 201

20 S.W. 201

HURFORD v. STATE.

Supreme Court of Tennessee.

September 20, 1892.

Appeal from circuit court, Bradley county; ARTHUR TRAYNOR, Judge.

E. B. Hurford was convicted of a misdemeanor, and fined $20 and costs, and appeals. Reversed.

White & Martin, for appellant. G. W. Pickle, Atty. Gen., for the State.

LURTON, J.

Hurford has been indicted and convicted of a misdemeanor in selling goods by sample to consumers without first taking out the license and paying the privilege tax required by the revenue act of 1891. He has appealed, and the facts are set out in an agreed statement, from which we quote: "The defendant, E. B. Hurford, is a citizen and resident of Canton, Ohio, and on 2d May, 1892, was engaged in the business of drumming in the city of Cleveland, Tenn.; that is, he was soliciting trade by the use of samples for the firm for which he worked as a drummer, said firm being the firm known as the Novelty Cutlery Company, doing business in Canton, Ohio, all the members of said firm being citizens and residents of Canton, Ohio. The goods which he was selling by sample were what are known as `Novelty Pocket Knives,' being a knife with a transparent handle, on which can be placed a photograph or name of owner if desired. The article is a patented article, manufactured solely by the Novelty Cutlery Company, which is the owner of the patent right. Defendant, Hurford, was selling the knives or goods directly to the consumers, and all sales were made by sample. All orders were taken in writing. * * * The goods are manufactured by the Novelty Cutlery Company in Ohio. After the company has received the order, and the articles are manufactured to fill the order, they are shipped, either by mail, registered letter, or by express, or delivered by the agent in person. In some instances sales are made on time, but this is only in cases where the purchaser buys a large quantity, and is a good, solvent party. In other cases the order is taken for cash on delivery, and in such cases the goods are sent to him C. O. D., or are carried directly to the purchaser by an agent of the company, who collects the money and delivers the goods simultaneously. All contracts of sales made in Cleveland, Tenn., were made on the latter plan, though no knives had actually been delivered on the orders taken in Cleveland, defendant having up to the time of his arrest been only engaged in soliciting orders. * * * Defendant always stated to purchasers that if the goods were not up to the samples, or were not what was ordered, they would not be required to take them. Defendant had not taken out any license, or paid any privilege tax, as required by law. * * *" By the revenue acts passed at the extra session of 1891, the occupation of "sample sellers and solicitors" was made a privilege, and all persons "selling goods, wares, chattels, or any other character of merchandise to consumers by sample, or taking orders or measures from consumers," were required to take out a license, and pay an annual tax for the privilege of $10 in each county in which business was done. By the same act it was made a misdemeanor to exercise any privilege mentioned in the act without paying the tax and taking out license.

In all its substantial particulars this case is identical with Robbins v. Taxing Dist., 13 Lea, 303. This court then held that the tax on drummers was not a regulation of commerce between the states, although the agent was a nonresident, who sold by sample goods without the state, for nonresident principals, and was not therefore obnoxious to the clause of the constitution of the United States which declares that congress shall have power to regulate commerce between the states. Upon a writ of error to the supreme court of the United States our judgment was reversed, and the act imposing the privilege...