State v. Montgomery

• Citation: 43 A. 13,92 Me. 433
• Parties: STATE v. MONTGOMERY.
• Decision Date: 27 January 1899
• Court: Supreme Judicial Court of Maine (US)

43 A. 13

92 Me. 433

STATE

v. MONTGOMERY.

Supreme Judicial Court of Maine.

Jan. 27, 1899.

(Official.)

Report from supreme judicial court, Franklin county.

This was a complaint made in the Farmington municipal court, under the hawkers' and peddlers' act of 1889, c. 298, as amended by St. 1893, cc. 282, 306, in which the material averments were as follows: "That W. C. Montgomery, commorant at Farmington, within the county of Franklin, at Farmington, on the 15th day of January, A. D. 1898, then and there without any authority, license, or permission therefor, did go about from place to place in said town of Farmington, then and there carrying for sale and exposing for sale, goods, wares, and merchandise other than such as he is by the statutes allowed to carry for sale and expose for sale without a license, to wit, pictures and picture frames; the said W. C. Montgomery not being then and there exempt from obtaining a license to carry for sale and expose for sale said goods, wares, and merchandise, to wit, pictures and picture frames; against the peace of the state," etc.

The defendant, having been convicted, thereupon appealed to this court at nisi prius; and the case, which is stated in the opinion, was reported by the presiding justice upon an agreed statement of facts. Case to stand for trial.

Argued before PETERS, C. J., and EMERY, HASKELL WHITEHOUSE, WISWELL, and SAVAGE, JJ.

E. E. Richards, Co. Atty., for the State.

Jos. C. Holman, for defendant.

SAVAGE, J. Complaint against defendant for going from place to place in the town of Farmington, exposing for sale pictures and picture frames, without being licensed therefor, under Laws 1889, c. 298, relating to hawkers and peddlers. It is averred in the complaint that these pictures and picture frames are "goods, wares, and merchandise other than such as he [defendant] is by the statutes allowed to carry for sale and expose for sale without a license." This case comes up in the form of a report upon facts agreed, and we are called upon to determine (1) the sufficiency of the complaint; (2) whether the facts agreed upon are sufficient to show that the crime charged in the complaint has been committed; and (3) whether the hawker and peddler statute is constitutional.

1. It is objected that the complaint is insufficient in that it fails to negative certain exceptions contained in the enacting clause of the statute under which it is brought. The articles excepted, and which may be peddled without a license, are "fruit grown in the United States, fruit trees, provisions, live animals, brooms, agricultural implements, fuel, newspapers, books, pamphlets, agricultural products of the United States, the product of his [peddler's] own labor, or the labor of his family, any patent of his own invention, or in which he has become interested by being a member of any firm, or stockholder in any corporation which has purchased the patent" Section 1.

It is well settled in criminal pleading that it is necessary to aver all of the elements which constitute the crime, and to negative all the exceptions contained in the enacting clause of the statute which describes or creates the offense. State v. Godfrey, 24 Me. 232. But we think in this complaint the exceptions in the enacting clause of this statute are sufficiently negatived by the use of the expression, "other than such as he is by the statutes allowed to grow for sale and expose for sale without a license." The exceptions are the articles allowed to be peddled without license. The averment that the articles peddled in this case are "other" than those allowed by statute to be so peddled necessarily excludes the excepted articles, and is a sufficient negative of the exceptions. The precise language of the statute need not be negatived. It is sufficient if the words used reach the same result with equal certainty. State v. Keen, 34 Me. 500.

2. It is next claimed that the facts agreed upon do not constitute an offense, within the meaning of the statute. It appears that the defendant was an employe of the Chicago Portrait Company, a foreign corporation having its place of business at Chicago. The business of the company was to make, reproduce, buy, and sell pictures and pictorial reproductions, together with picture frames, and other articles pertaining to a general art business. About the middle of November, 1897, an employs of the company, other than the defendant, solicited and secured from citizens of Farmington orders to the number of 60 for the enlargement of pictures. With each customer he left a contract in which, among other things, it is stated that the picture will be delivered in an appropriate frame, which the customer is advised, but not compelled, to buy. The prices of frames are given. When the pictures were completed, they were returned to Farmington by freight, addressed to the Chicago Portrait Company, and accompanied by 27 frames, adapted to the size of the enlarged pictures. The defendant, on presentation of a bill of lading and invoice, secured the pictures and frames. The defendant delivered the pictures so obtained, going to each customer who had given an order, and taking to each his picture, which the defendant had placed in one of the frames accompanying the pictures. And at the time of delivery, he offered for sale, exposed for sale, and endeavored to sell, a frame to each person who had ordered a picture. The defendant called on no parties except those who had given orders for pictures, and made no attempt to sell to any other parties.

Both employes of the company resided without the state. The defendant had no license to peddle in this state. We think the acts of the defendant were sufficient to constitute the crime of peddling picture frames without a license. He went from place to place in Farmington. He carried these picture frames. He exposed them for sale. They were not within the "exceptions" in the statute. He had no license. Here seem to be all the elements of the statute offense. The fact that the frames were appropriate for the pictures which had been ordered, or that when the pictures were delivered they were encased in the frames, can make no difference. It is the same as if they were exposed separately, or at another time. The frames had not been previously ordered. The customers had made no previous contract to purchase picture frames, nor had the defendant's employer made any previous contract to sell picture frames. The selling or exposing for sale of picture frames was not incidental to the business of enlarging pictures, but was additional to it. The defendant had the frames in his possession to expose for sale, and then to sell if he could. This case differs from those relied upon by the defendant. In Brennan v. City of Titusville, 153 U. S. 289, 14 Sup. Ct. 829, Brennan, the agent of a foreign corporation, was complained of for violating a city ordinance which required all canvassers to be licensed by the mayor. The court held in that case that, under, the particular statute of Pennsylvania authorizing the ordinance, the license fee was a tax, and so, under the facts of the case, a tax upon interstate commerce, and hence that the ordinance was void. But that is not this case. In Com. v. Ober, 12 Cush. 493, the defendant, in delivering, for his employer, goods previously ordered, sometimes delivered to customers goods of the same description in addition to those they had ordered. The court said: "It seems to us that the defendant was a carrier, delivering goods to persons who had previously ordered them, but who, when the goods were brought, desired to enlarge their order, or take more than they had previously ordered, upon the same terms, in all respects, as to prices and credits. It was, in effect, a purchase of the same buyer, from the same seller, of the same commodity, to a larger amount than previously ordered. It wants the essential characteristics of carrying about for sale, offering them to purchasers, fixing the prices and terms of sale, or receiving payment, and therefore their acts were not within the prohibition of the statute." Neither is that this case.

3. The final contention of the defendant is that the hawkers' and peddlers' act (Laws 1889, c. 298) is unconstitutional. It has been many times decided that it is within the province of the legislature to regulate the business of hawking and peddling, by requiring those engaged in it to be licensed and to pay proper fees. Such has been the practice from the very earliest times in this country. Mass. Ancient Charters, c. 21, § 5. Licenses of this sort may be sustained on either or both of two grounds: (1) On the police power of a state for regulation; and (2) on the power of taxation for revenue. See cases cited in note to People v. Naglee, 52 Am. Dec. 331. We think the hawkers' and peddlers' act of this state may fairly be said to be an exercise of the police power of the state; and, being such, it is not in violation of any requirement that taxation shall be equal and uniform. See same cases. Morrill v. State, 38 Wis. 428.

As expressive of the reasons why it has been deemed advisable in times past to regulate the exercise of the business of hawkers, we quote from Jacob's Law Dictionary, tit. "Hawkers": "Those deceitful fellows, who went from place to place, buying and selling brass, pewter, and other goods and merchandise, which ought to be uttered in open market; and the appellation seems to grow from their uncertain wandering, like persons that with hawks seek their game where they can find it." The object of such legislation has also been well stated by Baron Graham to be "to protect, on the one hand, fair traders, particularly established shopkeepers resident permanently in towns and other places, and...