Territory v. Farnsworth

• Decision Date: 29 January 1885
• Citation: 5 Mont. 303
• Parties: TERRITORY v. FARNSWORTH.
• Court: Montana Supreme Court

5 Mont. 303

TERRITORY

v.FARNSWORTH.

Supreme Court of the Territory of Montana.

Filed January 29, 1885.

Appeal from First district, Gallatin county.

Wm. H. Hunt, for respondent.

Sanders & Cullen and Luce & Armstrong, for appellant.

GALBRAITH, J.

This is an appeal from a judgment rendered by the court of the First judicial district, affirming the judgment of the probate court of Gallatin county, whereby a penalty of $50 was imposed upon the appellant for the violation of an act “to provide for licensing commercial travelers,” approved July 22, 1879, and hereafter given. In this case the following facts were agreed upon:

(1) That the defendant was, at the time alleged in the complaint herein, a commercial traveler, engaged at Livingston, Gallatin county, Montana, in conducting his said vocation, as follows, and not otherwise.

(2) That Auerbach, Finch & Van Slyck are a mercantile firm, resident at St. Paul, in the state of Minnesota, engaged there in the sale of goods, wares, and merchandise, where each member of said firm resides, each being a citizen of the United States, and also of the said state of Minnesota.

(3) That the goods belonging to said firm for sale are at said St. Paul, and were at said St. Paul at the time of the commission by the defendant of the acts herein found to have been committed.

(4) That the defendant was then, and ever since hath been, a citizen of the United States, and a resident of the state of Wisconsin, and a citizen thereof.

(5) That as a commercial traveler for said Auerbach, Finch & Van Slyck, with samples of their goods aforesaid in said St. Paul, said defendant, on the ___ day of May, 1883, came to Livingston, in said Gallatin county, where he did exhibit said samples of said goods, and did represent and affirm them to be fair samples of the goods then owned and possessed in said St. Paul by said Auerbach, Finch & Van Slyck, and which said goods then were there, to-wit, at said St. Paul, and there had for sale, and did then and there, to-wit, at Livingston, aforesaid, on the date aforesaid, solicit of one John Doe, then and there being a merchant, that he give to said defendant an order for divers and sundry of the said goods, wares, and merchandise of said Auerbach, Finch & Van Slyck, then being at St. Paul as aforesaid, and did then and there obtain such order, and did then and there agree that the said defendant would forward the said order to the said Auerbach, Finch & Van Slyck; and that if said order should be accepted by said Auerbach, Finch & Van Slyck, said goods in said order mentioned would be delivered to said John Doe at the warehouse of the Northern Pacific Railroad Company at St. Paul, to be shipped to said John Doe at Livingston, aforesaid; and that said Auerbach, Finch & Van Slyck were at liberty to reject or accept the order.

(6) That none of said goods were then and there delivered at Livingston, aforesaid; nor was it the agreement or understanding that the same were to be then and there delivered; but it was agreed that the said order was to be by said defendant forwarded from said Livingston to said St. Paul, as aforesaid, when and where the said goods were to be shipped from Minnesota to Montana, as aforesaid.

(7) That the defendant, as aforesaid, was the instrumentality by which Auerbach, Finch & Van Slyck consummated, as well as inaugurated, the transaction aforesaid, by means whereof they obtained said order for the sale of their goods, should they accept said order and sell said goods.

(8) That for the foregoing business the defendant did not at first, or at all, obtain a license from the treasurer of Gallatin county.

It is claimed that the above facts “do not bring the defendant within the purview or provisions of the foregoing act.” This act, or so much thereof as it is necessary to quote, is as follows:

“Every commercial traveler, agent, drummer, or other person, selling, or offering to sell, any goods, wares, or merchandise of any kind, to be delivered at some future time, or carrying samples, and selling, or offering to sell, goods, wares, or merchandise of any kind, similar to said samples, to be delivered at some future time, shall, before carrying on such business, pay a license therefor of twenty-five dollars in each county where such business may be transacted. Such payment shall be made to, and such license issued by, the county treasurer, and the license so issued shall authorize the person named therein to carry on the said business of a commercial traveler in said county for the period of three months from the date thereof. And it is hereby made the duty of every justice of the peace, constable, sheriff, and all peace officers, to demand the license of any such commercial traveler, drummer, agent, or other person who has sold, or is offering to sell, goods, wares, or merchandise in his county; and if such person be found not to have a license, as required by this act, or if, upon demand made by any such officer, he shall not exhibit the same, the person so offending shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars, in the discretion of the court.”

The agreed statement of facts, stripped of its verbiage, and condensed into a form sufficiently comprehensive to present the question raised, is, in substance, as follows:

B. is engaged in the sale of merchandise. A. is a commercial traveler, carrying samples of B.'s merchandise, and his agent to solicit orders for his goods. A. exhibits the samples to, and solicits and obtains an order for goods of the same character as the samples, from C. This constitutes an offer by A. to sell the goods.

The above state of facts must have this signification, if agency, acts, and words have any meaning. It is not necessary, in order that the offer to sell should be within the provision of the statute, that the goods should be the property of A. It is sufficient if the offer be to sell any goods, wares, or merchandise. We are, therefore, of the opinion that the facts stated bring the appellant within the meaning of the above statute.

The transcript shows that this case was commenced in the probate court of Gallatin county, which had jurisdiction thereof, upon a complaint filed therein. This is in accordance with the laws of this territory. “Prosecutions in the probate court, or before justice of the peace courts, shall be by complaint.” Section 5, div. 3, Crim. Pr. (Rev. St. 288.) This is a bare misdemeanor. It is not “a capital or otherwise infamous crime,” as mentioned in section 5 of the amendments to the constitution of the United States. A presentment or indictment by a grand jury was, therefore, not required. The principal question, however, presented is whether or not this act is in conflict with the constitution of the United States. It is contended- First, that this act is in conflict with that clause in the constitution which provides that “the citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states,” and also with those provisions thereof which provide that congress shall have power “to regulate commerce with foreign nations and among the several states, and with the Indian tribes;” and that “no state shall, without the consent of congress, lay any impost or duties on imports and exports, except what may be absolutely necessary for exercising its inspection laws.”

The presumption is always in favor of the validity of an act of the legislature, and the burden is upon the party claiming that it is otherwise, to show that it is so, clearly and satisfactorily. An act should not be adjudged unconstitutional except where it is plainly repugnant to the fundamental law. In a case of this kind it is only with the power of the legislature, viewed in relation to the fundamental law, and not with the expediency or propriety of its legislation, that the court has to do. These are matters for the consideration of the legislature itself when it enacts the law. We do not think that the act is in conflict with the first clause of the constitution above quoted, as it does not discriminate against the citizens of other states and territories. We can see no reason why this territory cannot subject all persons who come within its jurisdiction, although citizens of other states and territories, for the purpose of engaging in the kind of business mentioned in the act, to the same conditions as to payment of a license tax therefor as are imposed upon its own citizens. The act requires the payment of a license for the purchase of a privilege to do the kind of business mentioned therein, just as in the case of licenses required by law to be purchased for the privilege of pursuing a particular trade, profession, or occupation. The act is not obnoxious to the objection that it is discriminating, for its provisions apply to all persons pursuing the occupation mentioned therein alike, whether citizens of other states and territories or of the territory of Montana; and to the goods, wares, and merchandise of this territory, as well as those of foreign production and manufacture. The act does not, therefore, come within the purview of the decision of the supreme court of the United States in Ward v. Maryland, 12 Wall. 418, where it was held that a statute of the state of Maryland was unconstitutional, as discriminating against the citizens of other states, which “made it a penal offense in every person, not being a permanent resident in the state, to sell, offer to sell, or expose for sale, within certain limits in the state, any goods, wares, or merchandise whatever, other than agricultural products and articles manufactured in Maryland, within the said limits, either by card, sample, or other specimen, or by written or printed trade list or catalogue, whether such person be the maker or manufacturer or not, without first obtaining a license so...