State v. Angelo

• Decision Date: 04 February 1902
• Citation: 71 N.H. 224,51 A. 905
• Parties: STATE v. ANGELO (two cases).
• Court: New Hampshire Supreme Court

51 A. 905

71 N.H. 224

STATE

v. ANGELO (two cases).

Supreme Court of New Hampshire. Strafford.

Feb. 4, 1902.

Exceptions from Strafford county.

Motion of defendant Angelo to quash informations against him for peddling fruits without a license were denied, and he excepts. Exceptions sustained.

Informations, filed by the attorney general, for peddling without a license,—the first for violation of the provisions of chapter 76 of the Laws of 1897, and the second for violation of the provisions of an ordinance of the city of Somersworth. The defendant admitted the allegations of the informations, namely, that in August, 1901, at Somersworth, he peddled, without a license, peaches and foreign fruits, consisting of bananas, oranges, lemons, and pineapples. The ordinance under which the second information was filed is as follows: "Every agent, peddler, or street hawker, selling at retail household furniture, farming implements, dry-goods, gents' clothing, boots and shoes, carpets or rugs, glass ware, drugs and medicines, clocks or jewelry, foreign fruits, tea, coffee, or grocerles not pertaining to farm products, shall, for the privilege of selling any of the said goods and wares, in and within the city limits of Somersworth, pay the city clerk of the city of Somersworth a monthly tax or license of ten dollars per month; such license to be first subject to the approval of the mayor, and also may be revoked by the mayor." The defendant moved to quash the informations,—the first one on the ground that the fruits above named were provisions, and the second on the ground that the ordinance was invalid. The motions were denied pro forma, subject to the defendant's exception.

Walter W. Scott, Sol., for the State.

James A. Edgerly, for defendant.

CHASE, J. 1. "No person shall do any business as a hawker or peddler, or go about from town to town, or from place to place in the same town, exposing for sale or selling any goods, wares, or merchandise, other than provisions, agricultural implements, fruit trees and ornamental trees, vines, shrubs, books, newspapers, pamphlets, the products of his own labor or the labor of his family, and the product of his own farm or the one which he tills, the manufacturers of furniture and ladders excepted, until he shall have procured a license so to do as hereinafter provided." Laws 1897, c. 76, § 1. The license is issued by the secretary of state, upon the filing with him by the applicant of a certificate by a mayor of a city or the majority of the selectmen of a town, that the applicant is of good moral character; and it authorizes the licensee to peddle in the towns named in it, or in the state at large, as the case may be. Id. §§ 2-6. Whoever peddles contrary to the provisions of the statute may be punished by a fine not exceeding $200, or by imprisonment for a term not exceeding six months, or by both. Id. § 8. Were the fruits which the defendant peddled provisions, within the meaning of this statute? A review of the legislation on the subject will aid in deciding the question. From 1714 to 1792 peddling was entirely prohibited, under a penalty of £20. In 1821 an act was passed prohibiting persons from exercising the business of peddling goods, wares, or merchandise other than "articles, the growth, produce, or manufacture of the United States," with certain exceptions, without a license obtained from the justices of the court of sessions. The applicant was required to produce satisfactory evidence that he sustained a good moral character, to entitle himself to a license, and, if licensed, was to pay the county treasurer $12, for the use of the county. Peddling without a license was punishable by a forfeiture of $10 to $50. Laws 1821, c. 31; Rev. St. c. 124. In 1846 the license fee and the penalty for a violation of the law were increased, and the articles exempted from the operation of the law were limited to those grown, produced, or manufactured in the state. Laws 1846, c. 344. In 1847 the statute was recast (Laws 1847, c. 491), the principal change being the introduction of a difference in the license fees to be paid by resident and nonresident licensees,—a distinction that was continued in one form or another in several of the subsequent statutes, and that was finally held to be in conflict with provisions of the constitution of the United States. In re Bliss, 63 N. H. 135; State v. Lancaster, Id. 267. In subsequent years the subject was fruitful in legislation. Laws 1847, c. 491; Laws 1848, c. 734; Laws 1853, c. 1413; Laws 1858, c. 2086. The last-named act provided (section 3) that nothing contained in it should prevent a "citizen of this state from selling any fish, fruit, provisions, farming utensils, or other articles lawfully raised or manufactured in this state." This was the first act in which fruit and provisions were specifically exempted from the license requirement. The act of 1859 and the General Statutes contained a long list of exempted articles, among which were fish, fruits, vegetables, provisions, and live animals. Laws 1859, c. 2212, § 2; Gen. St. c. 108, § 3. The acts of 1878, 1887, and 1893 (each of which covered the subject of licensing hawkers and peddlers and repealed all inconsistent acts), the General Laws, and the Public Statutes were less comprehensive and less particular in the enumeration of exempted articles. The act of 1878 and the General Laws mentioned fruits and provisions, and also fish and vegetables, which may be classed as provisions. The acts of 1887 and 1893 and the Public Statutes mentioned fish, vegetables, meat, milk, and bread, all of which may be classed as provisions, but did not contain the general term; and they also mentioned fruit Laws 1878, c. 27, § 2; Gen. Laws, c. 119, § 2; Laws 1887, c. 68, § 2; Pub. St. c. 123, § 2; Laws 1893, c. 65, § 2. In the act under which this information was filed, the general term "provisions" is used, without any specification. Section 1, above quoted. It cannot be doubted that this term was understood to include fish, vegetables, meat, milk, and bread,—articles specified in the statutes immediately preceding it. The probability is great that it was understood to include, also, what was designated "fruit" in the earlier statutes. The framers of the act used general terms to describe the exempted articles, instead of attempting to specify the articles, as in previous statutes. They also avoided some of the repetitions found in other acts. An ordinary meaning of the word "provisions" is food, victuals, eatables. Fruits, especially apples, pears, peaches, bananas, oranges, and pineapples supply nutriment to the body, and are food. The use of them has largely increased in the last 40 years, and there is now less occasion than formerly to use the term "fruits," in addition to the word "provisions," to describe them. No reason has been suggested, and none has occurred to the court why the policy of the state, which has exempted fruit from the operation of these statutes since 1858, should be changed at this time. The danger that the public will be imposed upon by peddlers of fruit is certainly no greater than the danger that they will be imposed upon by peddlers of articles classed as provisions according to the most restricted sense of the word. Neither can the peddling of fruit seriously interfere with the business of permanently established local traders,—at least, any more than the peddling of meat, bread, etc. If lemons do not supply nutriment to the body, they supply a flavoring for various kinds of food. In Hex v. Hodgkinson, 10 Barn. & C. 74, it was held that barm or yeast was victuals, within the meaning of the exempting clause of the hawkers' and peddlers' act of 50 Geo. III. c. 41, which provided that nothing in the act should prohibit persons from selling "any fish, fruit, or victuals," etc. Lord Tenterden, C. J., said: "I think the word 'victuals,' in 50 Geo. III. c. 41, § 23, comprises everything which constitutes an ingredient in the food of man, and all articles which, mixed with others, constitute food." See, also, Plummer v. Currier, 52 N. H. 287. 297. There is equally good reason for believing that the word "provisions" in the act under consideration was intended to comprise lemons as well as bananas, oranges, pineapples, and peaches. If the word was used in this...