State v. Foster

• Decision Date: 02 July 1900
• Citation: 46 A. 833,22 R.I. 163
• Parties: STATE v. FOSTER.
• Court: Rhode Island Supreme Court

46 A. 833

22 R.I. 163

STATE

v. FOSTER.

Supreme Court of Rhode Island.

July 2, 1900.

James A. Foster was convicted of selling goods as an itinerant vender without a state and local license. On petition for a new trial. Denied.

Willard B. Tanner, Atty. Gen., for the State. Wilson & Jenckes and William J. Brown, for defendant

TILLINGHAST, J.The defendant, who has been convicted of selling goods, wares, and merchandise as an "itinerant vender," without first obtaining a license therefor, as required by Gen. Laws R. I. c. 163, as amended by Pub. Laws R. I. c. 326, now petitions for a new trial on the ground that the verdict is against the evidence, and also on the ground of certain alleged erroneous rulings on the part of the trial court. He also claims that said statute is unconstitutional.

The material facts which appeared in evidence in the case, and which are not in dispute, are as follows: The defendant is a merchant in the city of Providence, and has had a permanent place of business there for 24 years. He has also been a citizen of this state during all of said time. For several years past, at about Christmas time he has temporarily opened a store at Woonsocket for the sale of his goods. In December, 1897, in pursuance of this custom, the defendant hired a store there for the exhibition and sale of his goods, and sold certain articles of merchandise, as set out in the indictment; not having first obtained a state and local license to make such sales. After the testimony, which was very brief, was all in, the defendant, by his counsel, requested the court to direct a verdict in his favor upon the ground that the evidence did not show that he had violated the statute in question; that, being a permanent resident and merchant of this state, he had a right to temporarily open a store in Woonsocket for the sale of his goods; and that such conduct did not constitute him an "itinerant vender," within the meaning of said statute. But the court refused so to rule, and instructed the jury that such a sale as that shown in evidence was in violation of the statute. To this ruling the defendant duly excepted. The defendant also claimed at the trial that the statute was unconstitutional.

Section 1 of the statute, as amended, provides that "every itinerant vender who shall sell or expose for sale, at public auction or private sale, any goods wares and merchandise without state and local licenses therefor, issued as hereinafter provided, shall be guilty of a misdemeanor, and shall be punished by a tine of not less than one hundred nor more than two hundred and fifty dollars, and by imprisonment not less than ten nor more than thirty days." And section 14 provides that "the words 'itinerant vender' for the purposes of this chapter shall be construed to mean and include all persons, both principals and agents, who engage in a temporary or transient business in this state, either in one locality or in traveling from place to place selling goods, wares and merchandise, and who, for the purposes of carrying on such business, hire, lease or occupy any building or structure for the exhibition and sale of such goods, wares and merchandise." The defendant contends that the statute was evidently not Intended to apply to persons, having a regular and permanent place of business in this state, who should from time to time, in the course of their business and in connection therewith, carry on a temporary business elsewhere within the state, but that its object was to protect the citizens of the state from the impositions of irresponsible "tramp merchants," who have no permanent and regular place of business in this state, but who temporarily locate in a given place in disposing of their goods and merchandise. A careful examination of the statute under consideration, however, shows that such a construction as that contended for would materially limit and restrict the plain meaning thereof; and, while the act may have been framed with the special view of accomplishing the object specified by the defendant, its language is too broad to confine it thereto. It contains its own definition of the words "itinerant vender," and hence we have no occasion, nor, indeed, the language being entirely plain, have we the right, to look elsewhere for their meaning. It provides that they "shall be construed to mean and include all persons, both principals and agents, who engage in a temporary or transient business in this state." And as said by the court in Com. v. Crowell, 156 Mass. 215, 30 N. E. 1015: "A party may be engaged in selling temporarily or transiently in one city or town, while having a permanent place of business in another. So far as he is engaged in selling temporarily or transiently, he comes within the prohibition of the statute, without any regard to the fact that he is also carrying on an established and permanent business elsewhere. Whether his whole business is selling temporarily or transiently, or whether he does it more or less frequently in connection with a permanent business at a fixed place or places, does not matter. He comes in either case within the statute." Again, the evil sought to be guarded against by the statute would not be removed by limiting the operation thereof to persons who have no permanent place of business in this state; for it would be just as detrimental to the established business of a given locality for a per son who has a permanent place of business in some other part of the state to temporarily locate there, as it would if such person had no place of business elsewhere in the state, or even as it would if he came from another state. And, of course, the act must be held to apply to nonresidents who come here to do business, as well as to residents of the state, else it would clearly be unconstitutional. See section 2, article 4, of the constitution of the United States; Corson v. State, 57 Md. 263; State v. Medbury, 3 R. I. 138. In other words, the main objects of the statute clearly being to so regulate the carrying on of temporary commercial business as to protect local tradespeople from what is evidently deemed by the general assembly to be unfair competition, namely, the selling of one's goods from place to place in very much the same manner as is done by ordinary hawkers and peddlers, and also to protect the public from imposition and fraud, it ought to be so construed as to effectuate those objects as far as may be. We do not lose sight of the rule that penal statutes are to receive a strict interpretation, and that the general words thereof should be restrained for the benefit of him against whom the penalty is inflicted (Potter's Dwar. St. 245); but when the intention of the legislature is obvious, and the language plain, no room is left for judicial refinement or construction. To the same effect are State v. Goodenow, 65 Me. 30, and the cases cited therein; Weston v. Com., 1ll Pa. St. 251, 2 Atl. 191; and the current of authorities generally upon this point. The statute as first framed (see Pub. Laws R. I. c. 895, passed May 29, 1890) contained no definition of the term "itinerant vender"; but by an amendment passed April 26, 1892 (see Pub. Laws R. I. c. 1057), the section which is now section 14 of the act was passed, and doubtless for the purpose of making it clear as to the class of persons to whom the act was intended to apply. And as it is evident from a comparison of said section with section 1 of chapter 448 of the Massachusetts statute upon the same subject, passed June 28, 1890, that it was copied therefrom, the language being identical, with the exception of one unimportant word, the construction put thereon by the supreme court of that state in the case cited is entitled to much weight. Com. v. Hartnett, 3 Gray, 450; Pratt v. Telephone Co., 141 Mass. 225, 5 N. E. 307; Preese v. Tripp, 70 111. 496.

During the trial of the case the defendant offered to prove that before locating in Woonsocket he went to the state treasurer, and offered, if it was necessary for him to do so, to deposit the amount required by section 6 of the statute, and that he was advised by him that, being a resident of the state and having a permanent place of business therein, he did not come within the provisions of the statute. This offer of testimony was objected to by the attorney general as being immaterial, and ruled inadmissible by the court, to which ruling the defendant excepted. The ruling was correct. Ignorance of the law will not excuse its violation, even when one endeavors to ascertain the law and is misled by the advice of counsel. Bish. New Cr. Law, § 294. In Hoover v. State, 59 Ala. 60, this doctrine is clearly enunciated. That was a case where a negro and a white person intermarried in violation of a statute of the state, and the court held that the court below did not err in refusing to receive testimony that before the alleged marriage the probate judge counseled the defendant that it was lawful for him to marry a white woman. "The maxim, 'Ignorantia legis, neminem excusat,' " said the court, "is a stern, but inflexible and necessary, rule of law, that has no exceptions in judicial administration, and the former erroneous ruling of this court furnishes no excuse which we can recognize." "It is very true that, to constitute a crime, there must be both an act and an intent. But in such a case as this it is enough if the act be knowingly and intentionally committed. The law makes the act the offense, and does not go further, and require proof that the offenders intended, by the prohibited act, to violate the law. The act being intentionally done, the criminality necessarily follows." State v. Smith, 10 R. I. 258; State v. Hughes, 16 R. It 403, 16 Atl. 911; Com. v. Emmons, 98 Mass. 6. In People v. Weed, 29 Hun, 628, the defendant was convicted of bigamy. It was proven at the trial that before the second marriage the defendant and his wife signed articles, under seal, in Connecticut,...