State v. Bristow

• Decision Date: 19 October 1906
• Citation: 131 Iowa 664,109 N.W. 199
• Parties: STATE v. BRISTOW.
• Court: Iowa Supreme Court

131 Iowa 664

109 N.W. 199

STATE

v.BRISTOW.

Supreme Court of Iowa.

Oct. 19, 1906.

Appeal from District Court, Plymouth County; F. R. Gaynor, Judge.

Appeal from a judgment of conviction for peddling without a license. Reversed.Robert Hunter, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

DEEMER, J.

The statute under which the conviction was had reads as follows: “Section 1. Peddlers plying their vocation in any county in this state outside of a city or incorporated town, shall pay an annual county tax of not less than five dollars ($5) or more than one hundred dollars ($100), as the board of supervisors of any county may provide for that county. Such tax shall be paid to the county treasurer, who shall issue to the person making such payment duplicate receipts therefor and upon presentation of one of same to the county auditor he shall issue to the person presenting such receipt a license which shall not be transferable authorizing such person to ply the vocation of a peddler in such county for the term of one year from the date thereof. The word ‘peddlers' under the provisions of this act, and wherever found in the Code, shall be held to include and apply to all transient merchants and itinerant vendors selling by sample or by taking orders, whether for immediate or future delivery. The provisions of this act shall not be construed to apply to persons selling at wholesale to merchants, nor to transient vendors of drugs, nor to persons running a huckster wagon, or selling and distributing fresh meats, fish, or vegetables, nor to persons selling their own work or production.” It was enacted by the Thirtieth General Assembly as chapter 48 (page 41), and was entitled “An act to repeal the law as it appears in section thirteen hundred and forty-seven ‘a’ (1347-a) of the supplement of the Code relating to the vocation of peddlers and to enact a substitute therefor.” The section of the supplement referred to replaced section 1347 of the Code, and enacted a substitute in lieu thereof; and section 1347 of the Code related to peddlers and to the amount of tax which they should pay. The latter section was properly entitled, and is not, of course, involved upon this appeal, save as we shall hereinafter indicate. The indictment charged a violation of the section quoted, and the testimony showed that defendant was a traveling solicitor for the Great Western Tea Company, receiving a stated salary for his services. He traveled about with a team and wagon, carrying samples furnished by his employer, and used them in soliciting business. He took orders for goods and delivered them to his employer, who, if it approved the orders, prepared the goods for delivery to the purchaser by wrapping and marking each order separately, and then turned them over to defendant, who made delivery from his wagon, collecting and remitting purchase price to his principal.

Accounts were kept by the employer with all customers, and payments credited when remitted by defendant. All orders taken by defendant were subject to the approval of his principal, and he carried no goods with him for sale, nor did he deliver any goods until the order for the same was delivered to, accepted by and filled by his employer.

Defendant contends that he was neither a peddler, an itinerant vendor, nor a transient merchant, and that, if his acts be held to be within the statute quoted, the act is unconstitutional and void, for reasons to be hereafter stated. That defendant was not a peddler, as that term is generally used, is well settled by authority. Commonwealth v. Farnum, 114 Mass. 267;Brenner v. Commonwealth, 9 Ky. Law Rep. 289;Hewson v. Inhabitants (N. J. Sup.) 27 Atl. 904, 21 L. R. A. 736;Village v. Fisher (N. Y.) 35 N. E. 500;City v. Rice, 75 Iowa, 74, 39 N. W. 191, 9 Am. St. Rep. 454;State v. Ninestein (N. C.) 43 S. E. 936;State v. Franks (N. C.) 41 S. E. 785;Potts v. State (Tex. Cr. App.) 74 S. W. 31;Emmons v. City (Ill.) 24 N. E. 58, 8 L. R. A. 328, 22 Am. St. Rep. 540;Commonwealth v. Eichenburg (Pa.) 21 Atl. 258;Ballou v. State (Ala.) 6 South. 393. The law as it existed prior to the act of the Thirtieth General Assembly did not have the interpretation clause which now appears therein. It simply provided that peddlers should pay a tax to be fixed by the board of supervisors. Defendant could not have been held under that law, and, if he is to be held now, it is because of a change in the statute broadening its scope, so as to cover his acts. Interpretation clauses in statutes are undoubtedly valid and controlling. State v. Schlenker, 112 Iowa, 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am. St. Rep. 360;Rossmiller v. State, 114 Wis. 169, 89 N. W. 839, 58 L. R. A. 93, 91 Am. St. Rep. 910. Indeed they are generally regarded as mandatory upon courts when construing the very act in which they are found. So that we must now, in construing this statute, treat it as covering under the term “peddler” all transient merchants and “itinerant vendors [venders] selling by sample or by taking orders, whether for immediate or future delivery.” Defendant was not a transient merchant. Indeed he was not a merchant at all. He was simply an agent or salesman, a soliciting agent, or commercial traveler, who took orders for goods. He made no sales himself, and, although he delivered goods and collected pay therefor, he did nothing more in this respect than any carrier might do. State v. Nelson, 128 Iowa, 740, 105 N. W. 327. Was he an itinerant vendor, selling by sample or by taking orders? A vendor (vender) is one who transfers the exclusive right of possession of property, either his or that of another, for some pecuniary equivalent. A soliciting agent who takes orders subject to the approval of his principal is not ordinarily regarded as a vendor. While some conflict, the weight of authority seems to support this proposition. It would doubtless be competent for the Legislature to tax and license all soliciting agents if, in its wisdom, it saw fit to do so; but the act in question does not seem to cover them.

Assuming, however, for the purpose of the case, that defendant's conduct brings him within the...