Hall v. State

39 Fla. 637

• Court: Supreme Court of Florida
• Decided: June 15, 1897
• Status: Published

Opinion

Carter, J.:

I. It is insisted by the plaintiff in error that the in•dictment was bad for duplicity, in that it charged him with two substantive offenses, viz: hawking and peddling; that while a hawker is necessarily a peddler, a peddler is not a hawker, unless and until he begins to attract attention to his wares by outcries or other device, and that the Legislature did not use the words interchangeably in the statute under consideration, but used them in a different sense as is evidenced by the language “hawkers and peddlers shalffmc7¿ pay,” etc. We have failed to find a single case at law where the supposed distinction pointed out by plaintiff in error has ever been enforced, or even recognized, except in the remarks of Chief-Justice Shaw, in the case of Commonwealth vs. Ober, 12 Cush. 493, where he said “the leading primary idea of a hawker and peddler is that of an itinerant or traveling trader who carries goods about in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale, and sells them in a fixed place of business. Superadded to this (though, perhaps, not essential) by a ‘hawker’ is generally understood one who not only carries goods for sale, but .seeks for purchasers either by outcry, which some 'lexicographers conceive as intimated by the derivation of the word, or by attracting notice and attention to them as goods for sale by actual exhibition or exposure of them, by placards or labels, or by a conventional signal, like the sound of a horn for the sale of fish.” It is there admitted, however, that the distinction drawn is not essential, and all of the standard dictionaries to which we have access give one definition of the word peddler as “a hawker,” and vice versa. See the Century and Webster’s International, ,titles, Hawker, Peddler. So in many definitions of the terms by the courts and text-writers, the words are regarded as synonymous when undefined by statute. Bishop’s Statutory Crimes, section 1074; Fisher vs. Patterson, 13 Pa. St. 335; City of South Bend vs. Martin, 142 Ind. 30. 41 N. E. Rep. 315, S. C. 29 L. R. A. 531; Emert vs. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367. There is nothing in the language quoted from our statute indicating that the Legislature intended to recognize any distinction between the business of a hawker and a peddler. The clause quoted by plaintiff in error, “hawkers and peddlers shall each pay,” means no more than “each hawker and peddler shall pay.” It was not used to distinguish hawkers from peddlers, but to impose the license upon each person engaged in the business of hawking and peddling, and to prevent the use of one license by more than one person by means of associations and partnerships, k reference to previous legislation in this State, regulating and licensing hawkers and peddlers, shows clearly that from territorial days, these words have been regarded as synonymous and interchangeable. Acts of 1831, 1832 and 1833, pages 373-4 Duval’s Compilation; act of 1845, Thompson’s Digest, p. 88, sec. 13, Chaps. 530, 531, acts 1852-3. The revenue act of 1869, Chap. 1713, contained the following-clause: “Owners or managers of each boat used wholly or in part for peddling, of less than twenty tons shall pay a license of ten dollars, and of more than twenty-five tons fifty dollars, hawkers and foot peddlers, for each, shall pay a license of ten dollars, peddlers with horse and cart or carriage twenty dollars; provided, that boats and carts engaged in the sale of vegetables or plantation products, fish not by the barrel, or oysters, shall not be considered as peddling-boats or carts.” This language is significant as it has been substantially re-enacted in every revenue law since that time, except, of course, the amount of the license has not always been the same, and in late statutes the distinction between the amount of license to be paid by foot peddlers and those with horse and cart or carriage has not been kept up; and by late additions to this language in revenue statutes, other classes of itinerant vendors have been placed in the peddling and hawking class, while hawkers, peddlers and itinerant vendors of medicine, etc., have been placed under licenses peculiar to themselves. See Chaps. 1887, 1976, 3099, 3219, 3413, 3681, 3847, 4010 and 4015. There is nothing in the language of the act of 1895 indicating an intention to use the words hawkers and peddlers in any other sense than as synonymous and interchangeable, as had been the case in jJrevious legislation of the same character, extending over a period of sixty years. The indictment was, therefore, not bad for duplicity.

II. It is also insisted that the indictment was bad because it failed to allege that the defendant sold, or offered for sale, any of the articles mentioned therein. It is argued by plaintiff in error that the. statute expressly defines a peddler to be an “unlicensed traveling dealer who shall bargain or sell,” etc., and that the indictment must allege a sale in order to charge the offense within this definition. If this clause of the statute was intended to furnish an exclusive definition of the hawker and peddler intended to be taxed, we think the argument would be sound. But this definition was not intended to be exclusive; it was intended to make certain persons peddlers who were not ordinarily and popularly understood to be such. In other* words, it was intended to class as peddlers certain persons not meant by the general words “hawkers and peddlers,” previously used, and it was not intended thereby to restrict the ordinary and popular and long accepted meaning of those words. Of course an indictment against one not embraced within the general words hawkers and peddlers, but embraced within the statutory definition, must follow the language of this definition, and an indictment in the ordinary or common law form for hawking and peddling can not be sustained by proof of acts constituting one a peddler only by reason of the statutory definition, and which would not, independent of the statutory definition, constitute him a peddler. Bishop on Statutory Crimes, secs. 418, 421; State vs. Henn, 39 Minn. 464, 40 N. W. Rep. 564; People vs. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325. We think'the indictment in this case was sufficiently definite to warrant a conviction without a specific allegation that defendant sold goods as a peddler or hawker. It is alleged that defendant did engage in, carry on and conduct the business of hawker and peddler, and did * '* * hawk and peddle certaiti named goods at divers and sundry places in the ■county of Pasco. This was entirely sufficient, for the allegation that he did hawk and peddle goods necessarily implies sales or offers to sell. One sale would arot necessarily show that defendant was engaged in the business of peddling and hawking, but the words “did tiawk and peddle at divers places,” do, in connection with other allegations, show that defendant conducted and carried on the business of a hawker and peddler. Bishop on Statutory Crimes, sec. 1084; Sterne vs. State, 20 Ala. 43; State vs. Sprinkle, 7 Hump. (Tenn.) 36.

IIL It is farther insisted that the facts agreed upon ■do not prove the allegations of the indictment: (a) that the defendant, if subject to any license, was a person or dealer traveling from place to place, required to pay a license of $50, and should have been indicted as such; (b) that defendant can not be considered a peddler unless he sold, or offered to sell, to the public generally, and (c) it is suggested that we read the cases of Robbins vs. Shelby County Taxing Dist., 120 U. S. 487, 7 Sup. Ct. Rep. 592, and Asher vs. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1, in connection with the fact that the storehouse from which the provisions sold by defendant were obtained, is located in the State of Alabama, from which we infer that defendant contends that, as applied to his case, our statute is inoperative as an interference with interstate commerce.

A. To give the last clause of the section of'the statute now under consideration its full natural meaning, would bring it into direct and irreconcilable conflict with a previous clause of the same section imposing a license of $300 on hawkers and peddlers. The obvious legislative policy and intent was to tax hawkers =and peddlers $300 for license. As to this there can be no mistake. A consideration of this statute in connection with previous ones on the same subject leaves no room for doubt as to this point. But it is not to be presumed that the Legislature intended to impose two •separate license taxes upon hawkers and peddlers, nor to permit a hawker and peddler to evade the payment •of a $300 license by taking out a $50 one. On the contrary,. it is clear that the Legislature intended to impose a tax of $300 on such persons as come within the •ordinary and popular meaning of the words “hawker and peddler.” and a $50 tax upon an entirely different ■class of persons, viz: those persons or dealers who were not hawkers and peddlers, but who traveled “from place to place selling goods, wares or merchandise of any and all descriptions.” The latter class were expressly prohibited from selling or attempting to sell under the license of any other licensed dealer, merchant, storekeeper or druggist, and if an unlicensed dealer of this character did bargain or sell any goods, wares and merchandise in the manner defined by the preceding clause of this section, he became a peddler, subject to a license of $300. But it was never intended by this last clause to limit or qualify the meaning of the words “hawker and peddler,” used in the previous clause; nor was it intended to include in this last clause any person who properly came under the term hawker and peddler as previously used. It is unnecessary for us to determine at this time the precise definition of “a person or dealer traveling,” etc.; what we do determine is that he is some person other than a hawker and peddler in the ordinary and popular meaning of those terms, as used in the previous «clause. In so holding we adhere to therule announced in Sams vs. King, 18 Fla. 557, that where the last clause of a section of a statute is plainly inconsistent with the first portion of the same section, and this first portion conforms to the obvious policy and intent of' the Legislature, the last clause, if operative at all, must be so construed as to give it an effect consistent, with the first portion of the section, and the policy thereby indicated.

B. The evidence shows that the defendant engaged in the business of traveling about from place to place, carrying with him goods, wares and merchandise which he offered and sold at retail. There can be no question that this constituted his business that of a hawker and peddler, within the ordinary and popular meaning of those terms (Bishop’s Statutory Crimes, sec. 1074; Fisher vs. Patterson, 13 Pa. St. 335; City of South Bend vs. Martin, 142 Ind. 30, 41 N. E. Rep. 315, S. C. 29 L. R. A. 531; Emert vs. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367), unless it is relieved of that character by the fact that the goods were sold only to employes of his principal. We are cited to the case of Vicksburg and Meridian Railroad Company vs. State, 62 Miss. 105, where it was held that under a state of facts very similar to those in the present case a railroad .company was not liable to a tax for the privilege of running “a trading car,” the court disposing of the case by remarking that the company under such circumstances was not a trader within the popular meaning of that word, nor was its car a “trading car” taxable under the provisions of the code of that State; that laws imposing-privilege taxes were to be construed in favor of the-citizen, and no occupation was to be taxed unless clearly within the provisions of such laws. The same-■court in a later case (Alcorn vs. State, 71 Miss. 464, 15 South. Rep. 37) held that the owner oí a large plantation having numerous tenants, who kept a store from which he furnished supplies to his tenants at usual ■credit prices, for profit was liable to the privilege tax “on each store” imposed by law, although the owner kept only such goods as were necessary for his tenants and refused to sell to any others. See also Thibaut vs. Kearney, 45 La. Ann. 149, 12 South. Rep. 139. The defendant in the present case sold only to employes of his principal; in other words, to a select •class of customers; those who were almost certain to pay. His employers fixed the prices and allowed him •a commission on the collections from sales made by him. He was none the less a peddler because he sold •only to a few people, or to those of a select class, and .refused to sell to others. Suppose he sold only to •males, or to females, or to white persons, or to solvent persons, would that alter the facts that he was engaged in the business of traveling about from place to place carrying merchandise, offering and selling same ■at retail? We think not. The law designed to tax ■the business of peddling, without reference to its magnitude. We are of opinion that the agreed facts warranted the finding of guilty.

C. The cases referred to by plaintiff in error under this head have been carefully reviewed by the Supreme Court of the United States in the comparatively recent ■case of Emert vs. Missouri, 156 U. S. 296, 15 Sup. Ct. Rep. 367. A short quotation from that case will dispose of this point. Mr. Justice Gray, speaking for ■the court, said: “The defendant’s occupation was offering for sale and selling sewing machines by going from place to place in the State of Missouri, in a wagon, without a license. There is nothing in the-case to show that he ever offered for sale any machine that he did not have with him at the time. His dealings were neither accompanied nor followed by any transfer of goods, or of any order for their transfer, from one State to another; and were neither interstate commerce in themselves, nor were they in any way connected with such commerce. The only business or commerce in which he was engaged was internal and domestic, and, so far as appears, the only goods in which he was dealing had become part of the mass of property , within the State. Both the occupation and. the goods, therefore, were subject to the taxing power, and to the police power of the State.” This quotation fully states the facts of this case, except that de- ■ fendant was selling goods, wares and merchandise, instead of sewing machines, and was traveling in a car, instead of a wagon. The, goods were brought into, this State for the purpose of sale at retail. They were not even sold in original packages, but were retailed in small quantities at various places. The goods were-in this State when orders were taken for, them. Deliveries were made at the time of taking the orders. All negotiations prior to and attending the sales were-had with reference to goods then present in this State.. The clause of the statute under which we sustain this conviction made no discrimination between residents or non-residents, nor between products or manufactures, or this State and other States. This being true, the case of Emert vs. Missouri is conclusive of this, question.

The judgment is, therefore, affirmed.