State v. West

• Decision Date: 31 March 1864
• Citation: 34 Mo. 424
• Parties: THE STATE OF MISSOURI, Respondent, v. GEORGE W. WEST, Appellant.
• Court: Missouri Supreme Court

34 Mo. 424

THE STATE OF MISSOURI, Respondent,

v.GEORGE W. WEST, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Criminal Court.

Wood and Mauro, for appellant.

The indictment does not charge the defendant with dealing in the selling of cloths, cassimeres, and vestings, and the court below by instruction excluded from consideration all evidence tending to show the dealing as a merchant by the selling of those commodities. The indictment simply charges the defendant with dealing as a merchant by selling “one coat, one pair of pants, and one vest,” to divers persons unknown; and the question is, whether the facts as developed by the agreed case show such a dealing in those articles as constitute him a merchant within the meaning of “An act to tax and license merchants,” approved March 14, 1859. (Sess. Acts 1859, p. 53.)

We do not contend that if the defendant had kept on hand a stock of coats, pants, and vests, and sold or offered them for sale at a store, stand, or place kept for that purpose, that he would not have been a merchant within the meaning of the act, merely because he himself manufactured the articles so dealt in. That proposition has already been disposed of by this court, and as we believe correctly. (State v. Whittaker, 33 Mo. 457.) The act defines a merchant to be one who deals in the selling of goods, wares, and merchandise at a store, stand, or place for that purpose. This differs materially from the common understanding of the term merchant. The party must deal, that is to say, traffic or trade in the selling of goods, wares, and merchandise. He must have the goods with which to deal in the selling, he must be prepared to sell when purchasers offer to buy, and it must be done at a store, stand, or place kept for the purpose. A man cannot with reason be said to deal in the selling of particular articles, when in point of fact, from one year's end to the other, he has not a single article of the kind on hand subject to sale.

The whole course of legislation in this State shows that a stock in trade is essentially necessary to dealing in the selling of goods, wares, and merchandise, so as to constitute a merchant. Since the year 1820 the same definition of the term merchant has prevailed; yet each act passed seems to contemplate the necessity of a stock in trade, without which the act would be inoperative. Thus by the act of 1825 the tax upon merchant licenses are predicated upon a complete statement in writing of all goods received at the store, stand, or place for sale. (R. C. 1825, p. 531.) The law of 1829 provides that all merchants shall pay a per centum “upon their whole stock in trade.” (2 T. L. 172.) So in other laws the tax is predicated upon an aggregate statement of all goods received for sale. (Acts of 1838-9, p. 82; R. C. 1845, p. 739; R. C. 1855, p. 1062; Acts of 1849, p. 68.) And so it is that in each act the tax to be levied is predicated upon the stock in trade--the amount of stock kept or received for sale--without which no tax could be levied or revenue received. In ascertaining the intention of the Legislature, the whole act is to be taken together and examined. The third section provides that merchants shall pay an ad valorem tax upon all goods, &c., in their possession or under their control at any time between the first Monday of March, and the first Monday of June, for sale. The sixth section requires each licensed merchant to file a sworn statement of the greatest amount of goods, &c., which he may have on hand at any one time between the first Monday in March and the first Monday in June, for sale. And yet the facts agreed upon show that the defendant, between these dates, had on hand for sale not a single article of those with which he is charged with so dealing in the selling as to constitute him a merchant.

S. Voullaire, for respondent.

There is no difference between the man who buys hogs, cuts them up, and cures hams therefrom, and keeps them for sale at a store, stand, or place occupied for that purpose, and the man who has vestings, cloths, &c., to make therefrom coats, vests, pants, &c., and makes from them coats,...