Town of Canton v. McDaniel
| Citation | 86 S.W. 1092,188 Mo. 207 |
| Parties | TOWN OF CANTON v. McDANIEL, Appellant |
| Decision Date | 25 April 1905 |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Affirmed.
Jerry M. Jeffries for appellant; Edgar B. Tolman of counsel.
(1) It is the contract of sale which passes the title, and not the payment of the purchase price or the delivery of the goods. Penn v. Hess, 17 L.R.A. 182; Connable v Clark, 26 Mo.App. 162. (2) The title to unspecified goods sold passes at the very instant the goods are designated under the terms of the contract. Andrews v Cheney, 62 N.H. 404; Bank v. Bangs, 102 Mass. 291; Black on Sales, 122, 127; Benjamin on Sales, p. 358. To constitute a sale between the parties, the actual delivery is not necessary. The exception is when the goods are a part of a larger mass from which they must be selected by counting or weighing, and then the sale is complete as soon as the separation is made, but no delivery or payment of the purchase price is necessary. Mfg. Co. v. Jones, 64 Mo.App. 218. In every sale the first essential element is the contract. The remaining elements of the sale are simply the execution of that contract. Under the instructions of the court the making of the contract was entirely eliminated and disregarded. This was error. Benjamin on Sales, p. 172; State v. Hoffman, 50 Mo.App. 587. (3) The laws of the State and of the town of Canton require every person dealing as a merchant to make a sworn statement of the amount of stock of goods on hand at the time he begins business as a merchant, and if he has been in the business for some time, of the greatest amount he has on hand at any one time between the first day of March and the first day of June of each year. This necessarily implies that the law requiring a merchant's license was intended only to affect those who have a stock of goods on hand and are ready to deliver the same to the purchaser as soon as the goods are ordered. State v. Railroad, 116 Mo. 22; Ordinance of the Town of Canton, ch. 2, secs. 5, 19. To be a merchant the defendant must keep a stock of goods on hand and be ready to make delivery of the goods as soon as ordered. Kansas City v. Lorber, 64 Mo.App. 604; State v. Martin, 5 Mo. 361; State v. Cox, 32 Mo. 566; State v. Whittaker, 33 Mo. 457; R.S. 1899, secs. 3540, 8546. A person in order to be held to be a merchant must keep on hands for sale and offer for sale goods that are ready for delivery at the time they are ordered and must actually deal in the selling of them. State v. West, 34 Mo. 428; State v. Richeson, 45 Mo. 577. The statute does not intend that every man who sells a single article should be deemed a merchant. Had that been the intention of the law the language would be: "Every person who sells goods, wares or merchandise shall be deemed a merchant." The single act of selling will not constitute a person a merchant. State v. Martin, 5 Mo. 361; State v. Cox, 32 Mo. 566; State v. Whittaker, 33 Mo. 457. The defendant was a commercial traveling agent and not a merchant. State v. Hoffman, 50 Mo.App. 587. (4) Where the parties to the transaction reside in different States, as in this case, interstate commerce laws would apply to them at the making of the contract, and all acts under the contract subsequent thereto would be regulated by the Federal government under rights given it by the Constitution, and no State or municipality can impose a tax upon the business or the goods. State v. Emert, 103 Mo. 241; Ferry Co. v. State, 114 U,S. 226; Cooley on Taxation, p. 61; State v. Cook, 41 L.R.A. 501; Sternvers v. Stilsing, 52 N.J.L. 517; Brown v. Railroad, 125 U.S. 465; Cooper Mfg. Co. v. Ferguson, 113 U.S. 727; Wolfe Dryer Co. v. Bigler, 192 Pa. St. 466. The ordinance under which the defendant was prosecuted is a revenue measure and not a police regulation. It is, as interpreted in the instructions, in conflict with the Constitution as to infringement upon interstate commerce. Brennan v. Titusville, 153 U.S. 299. A non-resident vendor (and in this case both the vendor and his agents are non-residents), has a right to take orders for goods and to ship his goods into the interior of a State for distribution according to order. Brennan v. Titusville, 153 U.S. 301; Leisly v. Hardin, 153 U.S. 108; Robbins v. Taxing Dist., 120 U.S. 489; Weldon v. Mo., 91 U.S. 275.
O. C. Clay and A. F. Haney for respondent.
(1) A sale of personal property is a transfer of the absolute or general property in a thing for a price in money. Milling Co. v. Ins. Co., 25 Mo.App. 265; Thompson & Co. v. Massey, 76 Mo.App. 201; Nance v. Metcalf, 19 Mo.App. 188; State v. Wingfield, 115 Mo. 436; Benjamin on Sales (7 Ed.), sec. 1. Goods which are a part of a larger mass from which they must be separated by counting, weighing or measuring, or goods to be hereafter procured and supplied to the buyer, or to be manufactured for his use, are the proper subjects only of executory agreements, contracts for the future sale and delivery of them. Cunningham v. Ashbrook, 20 Mo. 553; Hamilton v. Clark, 25 Mo. 437; Hatch v. Oil Co., 100 U.S. 124; Benjamin on Sales (7 Ed.), sec. 352. (2) The sale of a specific chattel passes the property in it to the vendee without delivery. But where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained. Hamilton v. Clark, 25 Mo.App. 437; Benjamin on Sales (7 Ed.), sec. 315; Hopkins v. Cowen, 47 L.R.A. 126; State v. Wernwag, 28 L.R.A. 297. Even in those cases where the courts hold that the delivery of goods by the vendor to the common carrier when ordered by the purchaser to be shipped to him, passes the title in the goods, such conclusion is based on the doctrine that it is the act of delivery which passes the title and that the delivery to the carrier is a constructive delivery to the purchaser. Comstock v. Affoelter, 50 Mo. 411; Graff v. Foster, 67 Mo. 519; Armentrout v. Railroad, 1 Mo.App. 161; Scharff v. Meyer, 133 Mo. 444; Dunn v. State, 3 L.R.A. 199; Herron v. State (Ark.), 10 S.W. 25; Benjamin on Sales (7 Ed.), sec. 362. (3) The court did not err in instructing what would constitute one a merchant. Ord. of Town of Canton, ch. 2, sec. 5; R.S. 1899, sec. 8540; State v. Whittaker, 33 Mo. 457; St. Joseph v. Dye, 72 Mo.App. 216; Kansas City v. Lorber, 64 Mo.App. 604. (4) The taxing of defendant did not come under the prohibition of the interstate commerce clause of the Federal Constitution. Robbins v. Taxing Dist., 120 U.S. 497; Brown v. Houston, 114 U.S. 632; State v. Emert, 103 Mo. 241. A uniform tax imposed by a State on all sales made in it, whether they be made by a citizen of it or a citizen of some other State, and whether the goods sold are the produce of that State enacting the law, or of some other State, is valid. Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, 8 Wall. 148. While a tax may affect more or less the operations of commerce, by diminishing the profits to be derived from the subjects of commerce, it does not for that reason amount to a regulation of commerce within the meaning of the Federal Constitution. Brown v. Houston, 114 U.S. 627; State Tax on Railway Gross Receipts, 15 Wall. 293. When a person bringing goods into the State mixes them with the general property of the State by breaking up the packages, the sale of the goods may then be taxed. State v. Parsons, 124 Mo. 436; Waring v. Mayor, 8 Wall. 110; State v. Emert, 103 Mo. 241.
OPINION
In Banc.
This is an information or action by the town of Canton against W. W. McDaniel to recover a fine of one hundred dollars for the violation of an ordinance of said town, for exercising and carrying on the business, trade or occupation of a merchant in said town, on the 22d day of December, 1900, by selling and delivering goods, wares and merchandise, to-wit, sugar, flour, coffee, tea and other groceries, and four empty barrels, at a store, stand or place occupied by him for that purpose in said town, without first having obtained from the marshal of said town a license therefor.
The action was commenced before the recorder of the town, and a trial resulted in a fine of twenty dollars against defendant. An appeal was taken to the circuit court of Lewis county and upon a trial therein, the plaintiff recovered a verdict and judgment for ten dollars and costs. From that judgment defendant appealed to the St. Louis Court of Appeals, but that court transferred the cause to this court for the reason that a Federal question was involved, to-wit, that defendant was engaged in interstate commerce, and therefore the town of Canton had no power to impose a tax upon him or his business.
The Federal question was raised by the following instruction offered by defendant and refused by the circuit court: "The court instructs the jury that the business engaged in by the defendant is regulated by the Interstate Commerce law, and the town of Canton cannot impose taxes or license fees upon the same; your verdict will therefore be for the defendant." An exception was duly saved to the denial of this instruction, and preserved in the bill of exceptions.
As the Federal question was properly raised by the instruction and ruled adversely to defendant, the cause was properly sent to this court by the court of appeals. [State v. Raymond, 156 Mo. 117, 56 S.W. 894; Kirkwood v. Meramec Highlands Co., 160 Mo. 111, 60 S.W. 1072.]
The controlling facts developed on the trial are in substance as follows:
The town of Canton is a municipal corporation organized and existing under a special charter, granted by the General Assembly of Missouri, and approved March 19, 1873. [Laws 1873, pp. 208-220.]
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