Sholars v. Davis
| Decision Date | 24 March 1930 |
| Docket Number | 3590 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | SHOLARS v. DAVIS |
Rehearing Refused June 2, 1930.
Appeal from the Eighth Judicial District Court, Parish of Winn. Hon Wiley R. Jones, Judge.
Action by Bryant Sholars, Sheriff and Tax Collector against A. L Davis on a rule to show cause why license tax should not be paid.
There was judgment for plaintiff and defendant appealed.
Judgment affirmed.
Harry Fuller, of Winnfield, attorney for plaintiff, appellee.
Michel Provosty, of New Orleans, and Wm. R. Mecom, of Columbia attorneys for defendant, appellant.
Defendant was going from place to place and from house to house in the parish of Winn selling goods, using a motor vehicle to transport them. Not having paid a license, the tax collector brought proceedings against him by rule to show cause why he should not pay license as a peddler, under section 18, Act No. 205 of 1924, as amended by Acts No. 299 of 1926 and No. 241 of 1928.
The defense is a general denial, but is elaborated and specifically set out in paragraph 15-A of the answer, which reads as follows:
"Further answering plaintiff's petition, respondent avers and says: That under the mode and method of transacting his business and carrying on his occupation and vocation, he is not required to pay an annual license tax; that he is not a peddler and is therefore not required to pay a peddler's license; that the goods and wares handled and delivered by him to his respective customers or billed or booked by respondent on a certain day and date to be delivered one week later and are actually delivered to his respective customers one week from the date of taking the order therefor; that all goods and wares sold and delivered by respondent are sold under and by virtue of an order previously solicited and not delivered by respondent until he returns to his base of supplies and procures goods, wares and merchandise in accordance with the orders taken and solicited by him; that under this method of doing business he does not come within the scope of a peddler as denounced by the statutes of the State of Louisiana, especially Act 205 of 1924, as amended by Acts 299 of 1926 and 241 of 1928."
Defendant further contends before this court that the acts under which the license is claimed are unconstitutional. The district judge, in a written opinion, after reviewing the facts, held that defendant was a peddler and subject to the license tax demanded. Defendant appealed.
OPINIONOn the facts presented, we concur with the district judge.
Defendant was engaged in selling various articles of merchandise in the parish of Winn, which merchandise he carried in a motor vehicle. He went from place to place and from house to house carrying his goods with him, selling and delivering them to whomsoever would buy and in such quantities as the purchaser wanted. But the defense is that he never sold any articles without an order previously taken. He went into detail as to his system of doing business, which he said was as follows: He made trips through the country offering goods for sale, and took orders from those who wished to buy, the orders specifying the kind, quantity, and price of the goods which were to be delivered later; that after taking the orders, he sent them to the Standard Coffee Company, of New Orleans, where they were filled and the goods shipped to him, and that upon receipt of the goods, as ordered, he loaded them on his truck, delivered and collected for them.
If he did that and only that, he was not a peddler. One who takes orders for goods to be delivered on a future date is not a peddler. A peddler is a retail dealer who travels about from place to place and from house to house, either on foot, horseback, or vehicle, carrying his stock with him, exposing his goods for sale, and then and there selling and delivering them. The testimony abundantly shows that defendant was conducting that kind of business.
His chief business seems to have been that of selling coffee for the Standard Coffee Company of New Orleans, but he carried and sold many other articles of merchandise not shown to have been received from that company. He took orders for coffee and other articles, and testified that, at the time his goods were seized, he had none on hand except such as had been previously ordered, but his testimony to that effect was disproved. At the time defendant's goods were seized, the sheriff took his order book as well, which book did not show orders for all of the goods. But at the trial, he said that was not the only order book he had. On being asked to produce his other book, he said that he would not do so, as it was his private property, or "private business." But when the district attorney suggested to the court that he would apply for a subpoena duces tecum, defendant produced later another book showing orders, many of them bearing evidence of changes and erasures. A check of all the orders he produced, including those in the book taken by the sheriff and those in the book later produced by defendant, shows the following: 67 orders for coffee (although he had 84 packages); 1 for extract; 2 for cocoa; 1 for cold cream; 1 for tablespoons; 3 for soap; 1 for steel wool; 1 for forks; 1 for Flash cleaner; 1 for starch; 1 for furniture polish; 1 for a blanket; and 1 for cups and saucers.
But, in addition to the articles above listed for which he produced orders, he had on hand in the truck seventeen other articles of merchandise for which he had no orders, consisting of soap powder, ammonia powder, linen tablecloths, bread pans, coffee pot, face powder, pie filling, tea, peroxide cream, bath salts, dental cream, shaving cream, baking powder, talcum powder, heat powder, hair tonic, shampoo oil, and black pepper. He was carrying all these articles along with him. His testimony, therefore, that he carried no goods except to fill orders previously taken counts for naught. His carrying these goods around with him without orders for them leads forcibly to the conclusion that he was carrying them for the purpose of selling and delivering them, if he could. Otherwise, he would have left them at the base of supplies and not incumbered his truck with them until he had orders for them. Such, however, is only a circumstance which would not warrant a verdict that he was in fact peddling. But coupled with this circumstance is the fact that he did sell and deliver goods from his truck without orders.
Mr. J. A. McPherson testified that defendant stopped at his house on one occasion to deliver a package of coffee which his wife had previously ordered, and that he personally purchased at that time from defendant one package of Flash cleaner and a bottle of extract for which no order had been taken, and that he went with defendant to the truck and got the goods. Mr. McPherson further testified that on one occasion he was present when a man named Crip Hayes walked up to defendant's truck and asked if he could get some coffee, and defendant told him he could, and that the coffee was then and there sold and delivered.
Mrs. Frank Varnell testified that she had a standing order for coffee, and that, when defendant came to deliver it, he would ask if she wanted anything else; that on one occasion she told him that she wanted some laundry soap, toilet soap, and baking powder, and that defendant went to his truck, got the latter articles for which she had given no previous order, brought and delivered them to her.
M. D. Haynes testified that he purchased one package of coffee for which he paid $ 1, and had given no order for it, and, while it was "Standard" coffee taken from the same truck, he could not positively identify defendant as the man who sold it, although he was reasonably sure that he was.
Defendant admitted that he had on one occasion sold and delivered one package of coffee to Mr. Barnes for which he had no previous order, but said that the package was ordered by Mr. Pond, who refused to take it, and he let Mr. Barnes have it, but did not know whether it was the same package. Defendant finally admitted on cross-examination that he did have goods in his truck for which he had no orders, and in explanation said that they were goods for which orders had been given by parties who refused to take them when tendered, and that he had failed to take them out of the truck, but he failed to produce the orders and did not state who had given them.
Defendant's intent and willingness to sell goods for which he had no orders is evidenced, not only by the fact that he did so sell, but by the fact that, when he delivered goods for which he had orders, he would ask the customer if there was anything else wanted at that time, not later on, and, if an affirmative answer was received, he would go at once, get and deliver the goods.
Counsel for defendant, who filed a most able and exhaustive brief in this court, urge the point that the...
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