situation is that in case of breach of warranty, breach of contract, fraud, cheating, or even theft by the peddler, he is generally out of sight or beyond the reach of process when sought.13 Furthermore, peddlers or "hawkers" who cry their wares in the streets because of the noise may constitute a nuisance, particularly in a community where industrial conditions are such that a portion of the population will naturally be sleeping during the hours of peddling,14 and always there is the possibility that peddlers by their numbers and their loitering may obstruct a public highway.15 II. WHAT CONSTITUTES PEDDLING 4. Itinerant Solicitation.-It is fundamental that no one may be a peddler who does not go from place to place seeking sales. There must be movement by the peddler. Therefore a corporation cannot be a peddler.16 And it seems to be the American rule that one who sells from a fixed stand which he from time to time moves for business purposes is not a peddler,1 though in England this is probably sufficient itineration.18 Then, certainly in the United States and probably in England, there is a difference between a "peddler" and an "itinerant merchant," and care must be taken not to fall into the error of regarding the words as synonymous. 19 However, the fact that a merchant has a fixed place of business does not render it impossible for him to become a peddler by means of sales made away from that place of business, 20 and definitions of peddlers as persons without local habitations or places of business 1 enumerate ordinary rather than necessary attributes. Further, the traveling by the peddler must be for the purpose of seeking sales. The actual canvass, either by voice or symbol, for sales is a necessary element,2 and it has been held that the delivery of goods which have been 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430; Morrill v. State. 38 Wis. 428, 20 Am. Rep. 12, reversed on another point in 154 U. S. 626, 14 S. Ct. 1206, 23 U. S. (L. ed.) 1009. 13. Ex parte Case, 70 Ore. 291, 135 Pac. 881, 141 Pac. 746, Ann. Cas. 1916B 490; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 A. S. R. 645, 7 L.R.A. 666. 14. Goodrich v. Busse, 247 Ill. 366, 93 N. E. 292, 139 A. S. R. 335, 20 Ann. Cas. 589 and note. 15. Shreveport v. Dantes, 118 La. 113, 42 So. 716, 8 L.R.A. (N.S.) 304; Com. v. Fox, 218 Mass. 498, 106 N. E. 137, Ann. Cas. 1916A 1236. Johnson, 84 Ga. 754, 11 S. E. 233, 8 L.R.A. 273. Notes: 22 A. S. R. 544; Ann. Cas. 1912D 1291. 17. Com. v. Morrison, 197 Mass. 199, 83 N. E. 415, 125 A. S. R. 338, 14 L.R.A. (N.S.) 194. Note: Ann. Cas. 1912D 1293. 284, 42 N. E. 837, 31 L.R.A. 522. Note: Ann. Cas. 1912D 1291. Note: 37 A. S. R. 650. 2. Scribner v. Mohr, 90 Neb. 21, 16. Wrought Iron Range Co. v. 132 N. W. 734, Ann. Cas. 1912D 1287. ordered is not peddling even though the price of the goods was not fixed until delivery. But the itinerant seeking of sales is peddling even though the sales be made to regular customers. In addition, to constitute peddling, the dealings must be with consumers, for it is settled that dealings with retailers is not peddling. This is historically justifiable, for when the term originated there probably were no itinerant salesmen selling to retailers alone goods which they carried with them. Furthermore, it is a logical qualification of the definition. In all the cases the necessity of finding a meaning for the word "peddler" arose from the necessity of interpreting a statute or ordinance containing it. The legislative body using the word was dealing with a mischief. The natural and proper interpretation of the words used would be such as to make them cover just the mischief aimed at, and none other. It is obvious that retail dealers, trained merchants, were imposed on in no such way as were householders, or ordinary consumers. Hence, those modern itinerants selling to retailers alone needed no such regulation as peddlers did, and were not held to be peddlers. 5. Concurrent Sale and Delivery.-It is another necessary requisite of peddling that the delivery must be made at the time of sale; the sale and delivery must be one transaction. The authorities are almost unanimous in holding that a person who solicits and obtains orders for goods by the display of samples, and delivers none of the goods at the time of sale, is not a peddler. It must follow, a fortiori, that one who takes orders without samples is not a peddler; and so it is generally held. There has grown up a drummer or commercial traveler class which is entirely different from the peddler class, and the distinction has been recognized and respected. The difference between the two classes is easy to state in terms of the mischievous 3. Thousand Island Park Ass'n v. Tucker, 173 N. Y. 203, 65 N. E. 975, 60 L.R.A. 786. 4. Notes: 57 Am. Rep. 136; 12 Eng. Rul. Cas. 504. 5. St. Paul v. Briggs, 85 Minn. 290, 88 N. W. 984, 89 A. S. R. 554; In re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321. Notes: L.R.A.1916B 1296; Ann. Cas. 1912D 1294. 6. See supra, par. 1. 7. See supra, par. 3. 8. Emmons v. Lewiston, 132 Ill. 380, 24 N. E. 58, 22 A. S. R. 540, 8 L.R.A. 328; State v. Lee, 113 N. C. 681, 18 S. E. 713, 37 A. S. R. 649 and note; State v. Frank, 130 N. C. 724, 41 S. E. 785, 89 A. S. R. 885 and note: Titusville v. Brennan, 143 Pa. St. 642, 22 Atl. 893, 24 A. S. R. 580, 14 L.R.A. 100, reversed on another point in 153 U. S. 289, 14 S. Ct. 829, 38 U. S. (L. ed.) 719; State v. Moorehead, 42 S. C. 211, 20 S. E. 544, 46 A. S. R. 719, 26 L.R.A. 585 and note; Potts v. State, 45 Tex. Crim. 45, 74 S. W. 31, 2 Ann. Cas. 827. Notes: 57 Am. Rep. 137; 46 A. S. R. 461, 723; 89 A. S. R. 557; 3 L.R.A. 706; 8 L.R.A. 328; L.R.A.1916B 1298, 1299; 12 Eng. Rul. Cas. 504. 9. Davenport v. Rice, 75 Ia. 74, 39 N. W. 191, 9 A. S. R. 454; Ex parte Taylor, 58 Miss. 478, 38 Am. Rep. 336; Scribner v. Mohr, 90 Neb. 21, 132 N. W. 734, Ann. Cas. 1912D 1287. Note: Ann. Cas. 1912D 1293. 4 situation to be remedied by legislative regulation of peddlers.10 Those soliciting orders for future delivery almost universally do so for reliable solvent principals and, furthermore, the buyer has a period of time before delivery and payment within which to discover and rescind for fraud. These cases cannot be explained on the theory that the drummer is held not to be a peddler because acting for another, for it is clear that an agent may be a peddler.11 They must be based on the principle that the manner of making the sale, namely by order, excludes the existence of peddling. In a few states, however, it is held that one who goes about from house to house taking orders from consumers for goods to be delivered in the future is a peddler.12 In accordance with the weight of authority it is further held that one is not a peddler although, in addition to securing the order for the goods, he subsequently delivers them.18 Then, of course, one who merely delivers goods previously ordered of another is not a peddler.14 However, the same individual may become both a drummer and a peddler by making habitual sales of both types. 15 Where a sale of goods is made to a consumer by an itinerant and there is an immediate delivery the seller is a peddler notwithstanding the fact that payment is to be made subsequently and in instalments, 16 and this is the case even though the sale is conditional and title remains. in the seller until payment.17 6. Regular and Principal Business.-One is a peddler only if he adopts peddling as his principal vocation or as one of his principal vocations, that is, only if he goes into peddling, which has been called a trade,18 as a regular and customary business. The making of a single sale is not such an act as, by itself, will render one a peddler, 19 as, for example, the occasional sale of a sample by a drummer who 10. See supra, par. 3. 11. See infra, par. 7. 16. Com. v. Harmel, 166 Pa. St. 89, 30 Atl. 1036, 27 L.R.A. 388. 12. Graffty v. Rushville, 107 Ind. 502, 8 N. E. 609, 57 Am. Rep. 128; Pomeroy v. Rutherford, 80 Wash. 43, 141 Pac. 178, L.R.A.1916B 1291. Notes: Ann. Cas. 1912D 1293; 12 1036, 27 L.R.A. 388. Eng. Rul. Cas. 504. Note: L.R.A.1916B 1303. 17. South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531; Com. v. Harmel, 166 Pa. St. 89, 30 Atl. 13. State v. Wells, 69 N. H. 424, 45 Atl. 143, 48 L.R.A. 99; Hewson v. Englewood Tp., 55 N. J. L. 522, 27 Atl. 904, 21 L.R.A. 736 and note. 14. Stuart v. Cunningham, 88 Ia. 191, 55 N. W. 311, 20 L.R.A. 430. Notes: L.R.A.1916B 1302; 12 Eng. Ral. Cas. 504. 15. Saulsbury v. State, 43 Tex. Crim. 90, 63 S. W. 568, 96 A. S. R. 837; Potts v. State, 45 Tex. Crim. 45, 74 S. W. 31, 2 Ann. Cas. 827. Notes: 2 Ann. Cas. 830; Ann. Cas. 1912D 1293. 18. Welton v. Missouri, 91 U. S. 275, 23 U. S. (L. ed.) 347. Note: Ann. Cas. 1916A 1200. 19. State v. Morehead, 42 S. C. 211, 20 S. E. 544, 46 A. S. R. 719, 26 L.R.A. 585 and note; Gregg v. Smith, L. R. 8 Q. B. 302, 42 L. J. M. C. 121, 28 L. T. N. S. 555, 21 W. R. 737, 12 Eng. Rul. Cas. 501. Notes: L.R.A.1916B 1302; Ann. Cas. 1912D 1291. 5 customarily takes orders for future delivery. To be a peddler, the single sale must be coupled with an intent to do this sort of thing generally and habitually as an occupation. Peddling need not be the salesman's sole intended vocation; it need only be one of his principal vocations. So one may be both a drummer and a peddler. But if the itinerant selling is purely an incident of another principal business, then it is not peddling. It seems well settled that farmers selling the products of their farms are not peddlers, and whether a person making itinerant sales of meat is a peddler would seem to depend on whether he raised and slaughtered the meat himself. It is true that farmers do not come within the mischief aimed at by the peddler statutes, for as they have local habitations and sell only in their immediate neighborhoods, remedies against them are easily available. In fact they are often expressly exempted from the possible operation of the statutes. But, even though not within the mischief aimed at, such farmers would be so clearly within the terms used that a judicial exemption of those making itinerant sales of their own produce would seem arbitrary unless justified by the existence of a principle to the effect that sales purely incidental to another business cannot be peddling. And the cases seem to have established this principle.' So it has been held that, where a picture has been sold by order giving the purchaser the privilege of buying one of several frames at wholesale price, the agent of the dealer calling on the purchaser of the picture and selling and delivering to him a frame is not a peddler. And the result is based on the reasoning that the sale of the frame was incidental to the sale of the picture.8 6 7. Interest of Seller in Goods.-The person actually making the canvass, sale and delivery is the peddler, and it is immaterial that title to the goods is in another for whom he is selling, because it is not the ownership of the goods that is important but the manner of making the sale. The active assistant of the peddler salesman may be 20. In re Houston, 47 Fed. 539, 14 L.R.A. 719; State v. Moorehead, 42 S. C. 211, 20 S. E. 544, 46 A. S. R. 719, 26 L.R.A. 585 and note. Notes: L.R.A.1916B 1299; 2 Ann. Pac. 819, 68 L.R.A. 708. Cas. 830. A. S. R. 645 and note, 7 L.R.A. 666. Notes: 129 A. S. R. 277; L.R.A. 1916B 1297; Ann. Cas. 1912D 1292. 4. In re Snyder, 10 Idaho 682, 79 1. Gregg v. Smith, L. R. 8 Q. B. 302, 42 L. J. M. C. 121, 28 L. T. N. S. 555, 21 W. R. 737, 12 Eng. Rul. Cas. 501. Notes: L.R.A.1916B 1302; Ann. Cas. 1912D 1291. 2. Saulsbury v. State, 43 Tex. Crim. 90, 63 S. W. 568, 96 A. S. R. 837. 3. In re Snyder, 10 Idaho 682, 79 Pac. 819, 68 L.R.A. 708; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 Notes: 57 Am. Rep. 136; 23 A. S. R. 881; L.R.A.1916B 1296; Ann. Cas. 1912D 1292; 12 Eng. Rul. Cas. 504. 5. See supra, par. 3. 6. Note: Ann. Cas. 1912D 1297. 7. In re Snyder, 10 Idaho 682, 79 Pac. 819, 68 L.R.A. 708. 8. State v. Coop, 52 S. C. 508, 30 S. E. 609, 41 L.R.A. 501 and note. Note: Ann. Cas. 1912D 1293. 9. In re Wilson, 8 Mackey (D. C.) 341, 12 L.R.A. 624; Wrought Iron a peddler himself, 10 but the principal for whom the sale and delivery are made and who does not actively participate in them is not a peddler. The manner of compensation of the seller agent has no bearing on the question whether he is a peddler, for again it is the manner of sale that makes the peddler, not the incentive to sell, and one may be a peddler even though he is on a salary.12 III. POWER TO LICENSE 8. Required by State in Exercise of Police Power.-The abuses that may probably grow out of peddling have been indicated.18 The situation that confronted a state, then, was a particular peddler mischief and no particular rule of the common law with which to deal with it. Naturally the result was legislative action, and, so, from early times, in England and America, there have been statutes regulating the occupation of peddlers.14 It is within the police power of a state legislative body to take steps to guard the welfare of the people and to prevent the practice of deception and deceit.15 The universal method of guarding against deceptions, deceits, and such probable abuses of peddling has been to require all persons who wish to engage in the trade in the state or community, as the case may be, to secure a license. It has been decided and settled by a long line of cases that a state by means of the exercise of its general police power may forbid a peddler to do business within the borders of the state unless he has secured a license from that state permitting such peddling.16 Range Co. v. Johnson, 84 Ga. 754, 11 S. E. 233, 8 L.R.A. 273; South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531; Temple v. Sumner, 51 Miss. 13, 24 Am. Rep. 615; State v. Emert, 103 Mo. 241, 15 S. W. 81, 23 A. S. R. 874, 11 L.R.A. 219; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 A. S. R. 645, 7 L.R.A. 666. Notes: 22 A. S. R. 544; 37 A. S. R. 650; 3 L.R.A. 705; Ann. Cas. 1912D 1291, 1293. 10. Note: L.R.A.1916B 1299. 11. Wrought Iron Range Co. v. Johnson, 84 Ga. 754, 11 S. E. 233, 8 L.R.A. 273; Temple v. Sumner, 51 Miss. 13, 24 Am. Rep. 615. Notes: 22 A. S. R. 544; Ann. Cas. 1912D 1291. 12. In re Wilson, 8 Mackey (D. C.) 341, 12 L.R.A. 624; Temple v. Sumner, 51 Miss. 13, 24 Am. Rep. 615; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 A. S. R. 645, 7 L.R.A. 666. Notes: L.R.A.1916B 1299; Ann. Cas. 1912D 1291; 12 Eng. Rul. Cas. 504. 13. See supra, par. 3. 14. Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430; Com. v. Fox, 218 Mass. 498, 106 N. E. 137, Ann. Cas. 1916A 1236. Note: 129 A. S. R. 276. 15. Morrill v. State, 38 Wis. 428, 20 Am. Rep. 12, reversed on another point in 154 U. S. 626, 14 S. Ct. 1206, 23 U. S. (L. ed.) 1009. Note: 58 A. S. R. 446. See CONSTITUTIONAL LAW, vol. 6, pp. 183, 199. 16. Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430; Ex parte Byles, 93 Ark. 612, 126 S. W. 94, 37 L.R.A.(N.S.) 774; State v. Conlon, 65 Conn. 478, 33 Atl. 519, 48 A. S. R. 227, 31 L.R.A. 55; State v. Wheelock, 95 Ia. 577, 64 N. W. 620, 58 A. S. R. 442, 30 L.R.A. 429; Shreveport v. Dantes, 118 La. 113, 42 |