State v. Looney

• Decision Date: 20 November 1906
• Citation: 97 S.W. 934,214 Mo. 216
• Parties: STATE v. LOONEY.
• Court: Missouri Supreme Court

97 S.W. 934

214 Mo. 216

STATE v. LOONEY.

Supreme Court of Missouri. Division No. 2.

November 20, 1906.

1. COMMERCE—INTERSTATE COMMERCE—WHAT CONSTITUTES.

An agent of a corporation, having its place of business in another state, took orders for unframed crayon portraits to be made at the corporation's place of business, and left with each purchaser a memorandum of the agreement which recited that a certain price should be paid for the portrait on delivery, and that while the purchaser was not obliged to take a frame, all portraits would be delivered in frames. Subsequently defendant delivered the portraits as agent of the corporation, and urged the purchasers to purchase the frames. Held, that the transactions in regard to the portraits constituted interstate commerce so that defendant could not be required to take out a peddler's license, but the transactions in regard to the frames did not constitute interstate commerce.

2. PEDDLERS—WHO ARE PEDDLERS.

The facts warranted a finding that defendant was within Rev. St. 1899, §§ 8861, 8862, 8868, making it a misdemeanor to deal as a peddler without a license and defining a peddler as one selling goods, wares or merchandise, by going from place to place to sell the same.

Appeal from Circuit Court, Oregon County; Wm. N. Evans, Judge.

J. P. Looney was convicted of peddling without a license, and he appeals. Affirmed.

Transferred from St. Louis Court of Appeals (96 S. W. 316).

Geo. M. Miley, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On February 21, 1905, the prosecuting attorney of Oregon county filed an information duly verified by affidavit charging the defendant with going from place to place in said county and selling goods, wares, and merchandise, without having peddlers' license, or any other legal authority to sell. At the February term, 1905, at the circuit court of said county, the defendant was tried and convicted and his punishment assessed at a fine of $10. Within due time and in proper form, he appealed to the St. Louis Court of Appeals, and that court has certified the cause to this court because a constitutional question is involved. The state's evidence tended to prove that in the latter part of the year 1904, a man by the name of B. E. Irby, an agent of the Chicago Portrait Company, of Chicago, Ill., called upon the state's witnesses with samples, and took from them orders to said Chicago Portrait Company, for unframed crayon portraits, to be delivered about January 10, 1905, and left with each purchaser a memorandum showing the agreement which is as follows:

"Chicago Portrait Company. Capital Stock, $500,000.00. 118-182 W. Jackson Boulevard, Chicago. Portraits made in oil, crayon, pastel, sepia, pearl, and bromode. We manufacture frames for harmonious effects. On or about Jan. 10th, 1905, we agree to deliver to Mr. Will Minix a finely finished unframed crayon portrait, 16×20, like sample. The purchaser agrees to pay $3.96 for the portrait when delivered. We do not compel you to take frames from us, but, owing to the delicate nature of the work, all portraits are delivered in appropriate frames, which this ticket entitles you to select at wholesale prices. Elegant patterns, that retail from $4.00 to $8.00, we furnish from $1.50 to $4.90, which is one-half of one-third the retail price. Please remember the date of the delivery and have the money ready, as our delivery man can make but one call to collect charges for same. Please be at home, or leave money with nearest neighbor. [Signed] B. E. Irby, Advertising Solicitor Chicago Portrait Company.

"This order cannot be countermanded."

A like memorandum was given to each purchaser; that afterwards in February, 1905, the defendant, another agent of the Chicago Portrait Company, appeared in Oregon county, with the said portraits in frames, and delivered them to the parties who had ordered the same, and collected the price of the portraits, and in most cases, the purchasers also took the frames and paid for them. The portraits and frames were made in Chicago, Ill., and were shipped from that city to the defendant in Missouri, and he made the delivery, and collected therefor. In some cases the purchasers declined to take the frames, and received only the portraits and paid for them. No pictures and no frames were delivered or collected for by the defendant except to or for persons by whom these orders for portraits had previously been taken. At the close of the state's case the defendant demurred to the evidence—first, because the facts disclosed were insufficient to convict; and, second, because the facts disclose that under the interstate commerce clause of the federal Constitution (section 8, art. 1) the defendant is not required to have a license, and a federal question is involved. The demurrer to the evidence was overruled, and the defendant duly excepted. Thereupon the defendant testified in his own behalf that he was engaged in the business of delivering pictures and frames for the Chicago Portrait Company; that orders for the goods in question had been previously taken by a solicitor in Oregon county, Mo., and sent in to the portrait company at Chicago, Ill., to be filed; that the said portraits and frames were shipped from the house in Chicago to the defendant in this state, to be delivered by him, and it was his duty to collect for them, all of which he did; that he had not delivered or collected for, nor tried to deliver or collect for, any of these goods to or from any person or persons except to such as had previously given an order therefor to a solicitor for the company. This in substance was all the evidence. The court gave the jury the following instructions: "(1) The court instructs the jury: If you believe from the evidence beyond a reasonable doubt that this defendant at any time within one year before February 21, 1905, in Oregon county, Missouri, did deal as a peddler and did engage in the selling of goods, wares and merchandise, to wit, picture frames, by going from place to place to sell the same without having a license as a peddler, you should find defendant guilty, and assess his punishment at a fine not less than ten dollars or more than one hundred dollars. (2) If you believe from the evidence that the picture frames in question were sold by an agent of a Chicago firm who took the order for such frames, and sent such order to the firm in Chicago for its approval, and that such firm accepted such order and shipped such goods to this defendant as its agent, and that he as such agent delivered such goods and collected therefor, then he would not be a peddler within the meaning of the law, and you should acquit the defendant." As already said the jury under the instructions found the defendant guilty.

1. It is plain from the instructions given by the court that the circuit court was of the opinion that the transactions in regard to the portraits themselves constituted interstate commerce, and that our peddler's act in Missouri did not and could not require the defendant to take out a license for delivering the portraits and receiving the purchase price therefor. Nowhere has the law been better stated than by Judge McFarlane in State v. Emert, 103 Mo., loc. cit. 245, 15 S. W. 81, 11 L. R. A. 219, 23 Am. St. Rep. 874, wherein he says: "By force of these decisions of the court having the highest judicial authority over the subject, it is settled, that the sale of goods which are in another state at the time of the sale, for the purpose of introducing them into the state in which the regulation is made, is interstate commerce; that a tax on the sale of such goods, before they are brought into the state, is a tax on interstate commerce itself; that the imposition of a license upon the person making such sale is, in its effect, a tax upon the goods themselves; that a state cannot tax goods beyond its jurisdiction. Hynes v. Briggs (C. C.) 41 Fed. 469, citing Robbins v. Taxing District, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257; Woodruff v. Parham, 8 Wall. (U. S.) 123, 19 L. Ed. 382; Cook v. Pa., 97 U. S. 566, 24 L. Ed. 1015; Welton v. State, 91 U. S. 275, 23 L. Ed. 347." But the circuit court was of the opinion that the transaction in regard to the sale by the defendant of the frames for the said pictures did not fall within the interstate commerce clause of the Constitution of the United States, and submitted to the jury whether the defendant dealt as a peddler in selling the said picture frames by going from place to place in said county to sell the same without having a license as a peddler. Whereas the defendant insists that inasmuch as it was agreed between the portrait company and the purchasers of the portraits at the time they ordered the same, that the portraits should be delivered in appropriate frames, which frames the purchaser could take at the regular wholesale prices, if he desired to do so at the time of the delivery, and did do so; that the delivery of the frames and the receipt of the prices therefor were parts of one and the same contract, which was made by the agent who took the order while the goods were yet in the state of Illinois, and that the delivery of the frames was as much a part of the full performance of that contract as was the delivery of the portraits. An examination of the memorandum given to each purchaser by the soliciting agent Irby, will demonstrate, we think, that there was no contract of purchase and sale of the portrait frames when the contracts for the portraits were made. The only agreement on the part of the purchaser was to pay a specified price for the portrait when delivered. The most that can be said was that the portrait company agreed to deliver the portraits in appropriate frames, which the memorandum entitled the purchaser to select at wholesale prices, but no frame was ordered and no price of the frame agreed upon,...