State v. Whittaker

• Decision Date: 31 March 1863
• Citation: 33 Mo. 457
• Parties: THE STATE OF MISSOURI, Respondent, v. FRANCIS WHITTAKER, Appellant.
• Court: Missouri Supreme Court

33 Mo. 457

THE STATE OF MISSOURI, Respondent,

v.FRANCIS WHITTAKER, Appellant.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Criminal Court.

S. Voullaire, for respondent.

1. Has a manufacturer a right to deal in the selling of goods of his own manufacture, at a store, stand or place occupied for that purpose, without having a license?

2. Has a manufacturer the right to deal in the selling of goods of his own manufacture, at a store, stand or place occupied for that purpose, without having a license, said store, stand or place being also the place where said goods are manufactured?

Which two propositions are resolved into one, viz: Is he a merchant as designated by the law of the State? (Laws of 1859, p. 53.)

Section 1st of the law of 1859 says: “Every person, or copartnership of persons, who shall deal in the selling of goods, wares and merchandise, at any store, stand or place occupied for that purpose, is declared to be a merchant.” From this it will be noticed that the statute has given a specific and different definition to the term “merchant” than is generally understood by the name; for a merchant is defined in the books to be “one whose business is to buy and sell merchandise,” and it applies to all persons who habitually trade in merchandise. (2 Bouv. Law Dic. 132, “Merchant;” 2 Salk. 445.)

Under our statute, if a person, 1st, deals in the selling of goods, and, 2d, occupies a place for that purpose, he is a merchant, no matter where the goods are from--whether they belong to him, are his own manufacture or making, or bought by him for the purpose of sale. And, very wisely, our statute makes no difference between him who manufactures his own goods and sells them at a place occupied for that purpose, and him who simply buys goods from manufactories of others and sells them; because the manufacturer is not taxed upon the raw material, or upon his privilege to manufacture, but simply pays a tax upon his establishment as upon any real estate. (2 R. C. 1855, p. 1322-3.) Now, if a person deals in the selling of goods, &c., at any place, whether it be the place where said goods are manufactured, or the place for which they are brought for sale, he thereby occupies that place for the purpose of selling them; all of which can be done under one roof. (State v. North & Scott, 27 Mo. 464.)

Knox & Smith, for appellant.

BATES, Judge, delivered the opinion of the court.

At the July term, 1860, of the St. Louis Criminal Court, the defendant was indicted for dealing as a merchant in the selling of goods, by selling one thousand hams, which were not unmanufactured articles, the growth or produce of this or any other State, at a place occupied by the defendant...