Kloss v. Commonwealth

• Decision Date: 26 January 1905
• Citation: 103 Va. 864,49 S.E. 655
• Court: Virginia Supreme Court
• Parties: KLOSS v. COMMONWEALTH.

49 S.E. 655

103 Va. 864

KLOSS

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 26, 1905.

PEDDLERS—TAKING ORDERS BY SAMPLES—CONSTRUCTION OP STATUTE.

1. A traveling salesman, who carries samples and takes orders for brooms from merchants in lots of a dozen or more, and afterwards delivers the brooms, which are shipped to him from the factory, is not a peddler requiring a license, within Act April 16, 1903, § 50, as amended May 13, 1903 [Va. Code, 1904, pp. 2223-2224], defining as such all persons who carry goods from place to place for sale, and all persons who offer goods for sale without having a regular place of business.¶ 1. See Hawkers and Peddlers, vol. 25, Cent. Dig. §§ 3-5.

2. A revenue law requiring peddlers to obtain a license, being penal in so far as it imposes a penalty for a violation of its provisions, must be strictly construed.

Error to Corporation Court of City of Fredericksburg.

John Kloss was convicted of carrying on the business of peddler without a license, and brings error. Reversed.

Chas. L. Page, for plaintiff in error.

The Attorney General, for the Commonwealth.

BUCHANAN, J. This is a writ of error to a judgment of the corporation court of the city of Fredericksburg affirming a judgment of the mayor of that city finding John Kloss, the plaintiff in error, guilty of carrying on the business of a peddler without first having obtained a license therefor as required by section or paragraph 50 of the tax bill approved April 16, 1903, as amended by an act approved May 13, 1903 (Appendix to Va. Code 1904, pp. 2223, 2224).

That section, so far as it is material to a consideration of this case, is as follows: "Any person who shall carry from place to place any goods, wares or merchandise, and offer to sell or barter the same, or actually sell or barter the same, shall be deemed to be a peddler. * * * All persons who do not keep a regular place of business (whether it be in a house, on a vacant lot, or elsewhere), open at all times in regular business hours, and at the same place, who shall offer for sale goods, wares and merchandise, shall be deemed peddlers under this act. And all persons who do keep a regular place of business open at all times in regular business hours, and at the same place, and who shall personally or through their agents, offer for sale or sell, and at the time of such offering or sale deliver goods, wares and merchandise, shall also be deemed peddlers as above. * * *"

The evidence shows that the plaintiff in error was the traveling salesman of one Chalkley, who carried on the business of a broom manufacturer in the city of Manchester. The salesman's method of doing business was to go from place to place; his employer shipping him from the factory, by rail, to the freight depot at each place on the salesman's route, brooms in such quantities as would, in their opinion, be sufficient to supply the trade at such point. The shipments were so timed as to reach the salesman on his arrival at each place. From the shipments so made, the salesman would select one or two brooms as samples, and with these go around and drum the town for orders; taking orders only from merchants, and never for less than dozen lots. After taking all such orders as he could get in the place, the salesman would go to the freight depot, and there "shape up" his brooms, and fill the orders taken by delivering the goods. It further appears that this method of selling brooms was an established feature of the business of broom manufacture, rendered necessary to avoid injury to the brooms by bending and breaking the straw when shipped in small lots from the factory.

The only question presented here is whether the plaintiff in error, in doing the acts he did without a license, came within the provisions of the statute quoted.

It was conceded by the Attorney General in oral argument, and properly so, that the business in which the plaintiff in error was engaged was not within the spirit of ...