1. Only
the person who itinerates for trading purposes is a peddler.
His employer, though owning the goods, team, and vehicle, is
not required to obtain a license, nor subject to any penalty
or forfeiture for failing to do so.
2. One
whose vocation is to go from place to place with a sample
stove carried upon a wagon, exhibit the sample, and procure
orders, which his employer afterwards fills by delivering
through other agents the stoves so ordered, is a peddler
within the meaning of the Code of Georgia. But, though a
peddler, if he is a citizen and resident of Virginia, and the
orders he solicits and procures are for stoves belonging to a
Missouri corporation, which the latter holds in Missouri, and
keeps there until they are thus ordered, he is protected by
the constitution of the United States, as lately construed by
the supreme court, against the provisions of the Code
requiring a license to peddle, and declaring a forfeiture for
not procuring such license.
3. The
parts of the record specified in the bill of exceptions being
as follows, "The petition and exhibit thereto attached
marked ' A,', and the answer of the defendants,"
held that the writ of error covers nothing else, and
that an affidavit verifying the petition, an acknowledgment
of service on the petition, an order of the judge appointing
a time and place for hearing the application for injunction
and a final order denying the injunction, are not included in
the specification, and that the clerk had no warrant or
authority for incorporating these things in his certified
transcript. These superfluous matters are wholly immaterial
to the errors assigned, and this court has no use for them.
Syllabus by the Court.
Error
from superior court, Floyd county; MADDOX, Judge.
Official
report, referred to in opinion, is as follows: The Wrought
Iron Range Company, a corporation of Missouri, and E. N. S
Lee, a citizen of, and resident of, Virginia, by their
petition, made the following allegations: "The range
company manufactures and sells ranges made for cooking
purposes at the company's works in St. Louis, and sold by
their agents, by samples, throughout the United States, in
the following manner: The company furnishes each agent a team
and wagon and a sample range, with which the agent travels
over the territory allotted to him, and, by exhibiting the
sample, takes orders, for the company, for the purchase of
such ranges from persons desiring to buy, and transmits the
orders to the superintendent of the company at his
headquarters, which are sometimes in such territory, and
sometimes in another state; and the company thereupon, from
its home office and place of business, fills the orders
through the superintendent, and delivers the ranges as the
orders are taken. But in no case do the agents sell or
deliver the sample ranges intrusted to them. The company has
no place of business in Georgia. Ranges are sometimes stored
in warehouses, after they are sold by sample, until delivered
to the purchasers. On February 5, 1890, the range company
furnished Lee with two mules and a wagon and sample range
and he went into Floyd county therewith, and, by exhibiting
the sample, took an order for a range from one of the
citizens of the county, and forwarded this order to the
superintendent of the range company at Rome, and thereupon
the company accepted the order and delivered the range, in
the manner above stated, to the purchaser. The ordinary of
Floyd county, having been informed of the facts and
circumstances above stated, demanded both of the range
company and of Lee, under the provisions of section 529 and
1631 of the Code, $50 for a license to peddle such ranges in
Floyd county, and, when petitioners refused to pay the same,
issued executions against them for it, which were levied by
the deputy-sheriff of Floyd county on the mules, wagon, and
sample range. The ordinary also issued an execution against
them for an alleged forfeiture of $100, under section 536 of
the Code, and caused it to be levied on said property; and
the sheriff, by direction of the ordinary, has also levied
both the fi. fas. on a trunk belonging to Lee, and
threatens to arrest Lee under said process if the license fee
and forfeiture is not otherwise collected from petitioners,
and from each of them. Petitioners denied that they, or
either of them, are peddlers of stoves or ranges, or are
liable to take out or to pay a license, as peddlers, to the
ordinary, under said section of the Code, or otherwise, or
that they, or either of them, are liable, on account of their
failure to take out and pay for such licenses, to the
forfeiture claimed by the ordinary. Section 1631 of the Code,
so far as it applies to them, and each of them, is
unconstitutional, in that it contravenes, and is repugnant
to, article 1,§8, per. 3, of the constitution of the United
States." Petitioners pray for an injunction against the
ordinary and sheriff; that the execution may be canceled; and
for general relief. Attached to the petition was a copy of
the execution, and the levy thereon. The defendant admitted
the...
