Spaulding v. McNary
| Decision Date | 04 March 1913 |
| Citation | 64 Or. 491,130 P. 391 |
| Parties | SPAULDING et al. v. McNARY et al. [d] |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Marion County; William Galloway, Judge.
Suit by H.W. Spaulding and others against John H. McNary and others. From a judgment of dismissal, plaintiffs appeal. Reversed and rendered.
This is a suit by H.W. Spaulding, F.E. Spaulding, and E.H. Spaulding partners, as the Spaulding Manufacturing Company, against John H. McNary, as district attorney of the third judicial district of Oregon, and certain of his deputies, and B.F Mulkey as district attorney of the first prosecuting attorney district of this state, to enjoin the maintenance of criminal proceedings against the plaintiffs' agents for alleged violations of a statute. The complaint, stripped of a vast amount of wholly immaterial matters, charges in substance that at all times stated therein the plaintiffs were and are citizens and residents of Iowa, and engaged at Grinnell in that state in manufacturing vehicles which are sold by their agents in various sections of the Union, including the several counties of Oregon, in which latter places the privilege of conducting such business has become and is a valuable property right, the exercise of which results in lucrative profits; that in negotiating such sales one of plaintiffs' agents, driving a pair of horses hitched to a wagon, canvasses a part of this state, and if he finds a purchaser, a written order is taken for a specified style of carriage, to be furnished in 30 days, or as soon as transportation will permit, and thereupon another agent at Grinnell, Iowa, ships into Oregon the required vehicle, upon the delivery of which, by another of plaintiffs' agents the sale is completed; that in transacting such business in the manner indicated the plaintiffs' agents have been and are threatened by the defendants with the prosecution of criminal actions for alleged violations of sections 4961-4967, L.O.L., which enactment is void as to plaintiffs in that it violates certain clauses of the federal Constitution and of the organic act of Oregon; that such proceedings will result in irreparable loss and damage to the plaintiffs in the distribution of their traffic in Oregon, for the redress of which injuries they have no plain, adequate, or speedy remedy at law. A demurrer to the complaint was sustained on the ground that it did not state facts sufficient to warrant equitable intervention, and, the plaintiffs declining further to plead, the suit was dismissed, and they appeal.
A.C. Lyon, of Grinnell, Iowa, and Ralph R. Duniway, of Portland, for appellants.
W.C. Winslow, of Salem (John H. McNary, of Salem, R.L. Conner, of McMinnville, J.E. Sibley, of Dallas, and B.F. Mulkey, of Medford, on the brief), for respondents.
MOORE J. (after stating the facts as above).
It is maintained inter alia that, since it is admitted that the plaintiffs were and are citizens and residents of another state and engaged therein in business, and as a branch thereof consists in selling by agents their manufactured products in Oregon, the license fee prescribed by the statute referred to is a tax, undertaken to be imposed in contravention of the third clause of section 8 of article 1 of the Constitution of the United States , to regulate commerce among the several states, and the enactment under consideration is therefore void as to plaintiffs and invades their property right, and, such being the case, an error was committed in sustaining the demurrer, and in not granting the equitable relief sought.
The statute in question, as far as deemed involved herein, defines the word "peddler" according to the ordinary meaning of the term, except that an agent of another is included within the class. 15 Am. & Eng.Ency.Law (2d Ed.) 291. The enactment further declares:
"Every person who, for himself or as agent of another, goes from place to place or from house to house, selling or offering to sell for future delivery, by sample or catalog, at retail, to individual purchasers who are not dealers in the articles sold, any goods, or wares or merchandise." L.O.L. § 4961.
"Any peddler who shall, without having first obtained a license so to do in the manner in this act provided, peddle any goods or wares or merchandise in any county of this state, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished." etc. Id. § 4962.
The second definition of the word "peddler" as hereinbefore quoted is criticised by plaintiffs' counsel as not applicable to a commercial traveler who, like the agents of their clients, go from place to place exhibiting samples or cuts of manufactured goods, wares, or merchandise, for which orders are taken. We do not think it necessary to enter into a discussion of the question, since we believe the business conducted by plaintiffs' agents comes within the designation of interstate commerce. It has been intimated by some courts of last resort that a "peddler" is a person who, in going from house to house with goods for sale, resorts to disreputable methods in seeking admission to homes in order to defraud customers, and for other nefarious purposes, and that, such being the case, it is proper for a state in the exercise of its police power to place such restrictions upon that business, though it may be interstate commerce, as will protect the public from imposition.
The power of a state by proper legislation to protect the health to promote the morals, and to prevent the introduction of any infected articles of trade that would necessarily injure property or affect persons is a matter of self-preservation, and such rights are not intended to be invaded under any clause of the federal Constitution, for an injury to the welfare of the state is a detriment to the nation. If one or more persons engaged in any...
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Spaulding v. McNary
...Or. 491 SPAULDING et al. v. McNARY et al. Supreme Court of OregonApril 1, 1913 On petition for rehearing. Denied. For former opinion, see 130 P. 391. MOORE, In a petition for a rehearing it is maintained by defendants' counsel that they are at a loss to understand where this court ascertain......