State v. Amick

Mitchell, J., delivered the opinion of the Court. The appeal in this case is that of the State of Maryland . from an order of the Circuit Court for Allegany County overruling the demurrer of the State to the special pleas of the appellee to the first, second, and third counts in an indictment found against the appellee, defendant below. The first count in said indictment charges the defend- • ant with having, on the 14th day of March, 1936, and on divers other days, in violation of the laws relating to licenses for the sale of goods, wares, and merchandise by traders, kept and used a certain place in said county, with the intention and for the purpose of selling with a view to profit in the prosecution of said sales, as a regular business, certain goods, wares, and merchandise, to wit, one loaf of bread, without taking out a license therefor, the defendant not being the grower, maker, or manufacturer thereof. The second count, which is substantially in the words of the first count, charges that the defendant sold one loaf of bread, without taking out a license therefor, while not being then the grower, maker, or manufacturer thereof. ⁵³⁹ By the third count, the defendant is charged with the violation of the laws of this State relating to licenses for the sale of goods, wares, and merchandise by hawkers and peddlers, in that he kept and used a motor vehicle, with the intention and for the purpose of selling therefrom, from door to door, with a view of profit in the prosecution of such sales, as a regular business, and did sell, one loaf of bread, without first taking out a license therefor, as required by law, the defendant not being at said time the grower, maker, or manufacturer thereof.

In compliance with a petition, and order of the court thereon, for a bill of particulars, on behalf of the defendant, the state’s attorney thereupon filed a statement of the particular facts which he expected to prove in support of the indictment. Briefly, these facts were: That a sale of one loaf of bread was made by the defendant from an automobile on March 14th, 1936, while on Gephart Drive, in Cumberland; that two days later a like sale was made to the same person, in the same way; •that on the latter date similar sales were made to two other parties on Gephart Drive; and that on March 27th, 1936, he sold some buns from an automobile at the corner of Allegany and Greene Streets, in Cumberland—all of which sales were made without the defendant having first secured a trader’s or hawker’s and peddler’s license. Thereupon the defendant filed a plea of not guilty, and in addition thereto, four special pleas to the indictment. By the special pleas it is set forth: (a) As to the first count in the indictment, that at the time of the offense therein charged, he was the agent and employee of the Harris-Boyer Company, of Johnstown, Pennsylvania, which company was engaged in the business of manufacturing bread, cake, and other bakery products; that said employment was for the purpose of distributing the bakery products of said company to its regular customers residing in certain sections of the City of Cumberland, in Allegany County; that all the sales or other transactions referred to in the first count of said indict ⁵⁴⁰ ment were made by him as agent of the company and under its authority; that said company was the owner of the bakery products referred to in the indictment, and was also the maker and manufacturer thereof; and that, acting as such agent, he was not required to take out a trader’s license under the laws of this State, (b) As to the second count, the special plea directed thereto asserts that there is no law of the State requiring the defendant to obtain a license, other than the license referred to in the special plea to the first count, and the license referred to in the special pleas hereinafter mentioned to the third count, (c) To the third count two special pleas were filed.

The first of these was designed to question the constitutionality of sections 26 tó 31, inclusive, of article 56 of the Code, relating to the requirement of licenses for hawkers and peddlers. Inasmuch, however, as the subject-matter of this plea was not pressed in this court, it becomes unnecessary to consider the same, (d) The second special plea to the third count admits the sale therein alleged, as well also as the other specific sales set forth in the bill of particulars, but, in justification thereof, alleges that such sales were made to regular customers on standing orders previously given. It is further set forth that the defendant operated a motor vehicle owned by his employer, for the purpose of distributing goods, wares, and merchandise owned and manufactured by said employer; that he distributed bakery products of his employer along a regular route in the City of Cumberland prescribed by his employer, to regular customers upon standing orders previously given; that all of said sales and deliveries were made pursuant to standing orders previously given, with the exception of occasional isolated sales to persons who stopped him on his route and requested certain bakery products, which he alleged did not average one a day; that he did not carry additional supplies from which to make numerous sales to other than regular customers, the total of occasional sales representing less than one per cent, of the total sales made by him; that from time ⁵⁴¹ to time new customers are secured along the same route, averaging from eight to ten a month, obtained through recommendations made by old customers, and upon being secured, these new customers are served upon receipt of standing orders received from them, similar to regular customers of the company; that he did not cry his wares, or undertake to attract attention by any device, and made daily and not intermittent trips to the City of Cumberland, always following the same regular route; that he was employed upon a regular salary basis, plus certain commissions; that under his contract with the employer, the company supplied all equipment, with the requisite quantity of bakery products needed for distribution, the title to the same at all times remaining in the company; that he was vested with authority to extend credit to certain customers in the name of the company, within certain limits, and that at no time did he act other than as the agent of the company for the distribution of its products; that the route in his charge was designated as “No. 46” by his employer; that persons living along the route were solicited by representatives of the company and supplied with samples of the company’s products, whereby 188 persons living along the route executed and delivered to the company written sales orders, requesting and authorizing daily calls upon them for the purpose of supplying bakery products, 144 of these customers being those upon whom regular daily calls were made, and the remainder of them treated as regular customers, who purchased the company’s products at more or less irregular intervals. Finally the plea definitely outlines the route over which the defendant made regular daily trips, as laid out for him by his employer, from which route, it is submitted, he did not deviate at any time.

The demurrer to these special pleas was overruled by the court on June 20th, 1986; and nothing further is shown by the record to have developed in the case until five days later, when the entry appears: “Judgment for ⁵⁴² defendant upon demurrer—that he be dismissed and discharged from the premises.” Section 26 of article 56 of the Code, sub-title “Hawkers and Peddlers,” provides: “No hawker or peddler shall buy for sale out of the State, or buy to trade, barter or sell, or offer to trade, barter or sell within the State any goods, wares or merchandise until he shall have first taken out a license for that purpose, but nothing in this section shall apply to hawkers and peddlers of oysters and fish in their unpreserved and natural condition, or of fruits and vegetables perishable in their nature that are sold in their natural condition in this State.” Section 27 of the same article fixes the license rates for the various classes of hawkers and peddlers. Section 28 provides that noi such license shall be granted in the name or style of. a partnership or company, and that but one person shall trade under the same; and limits the authority of the license to the county in which it is issued. In section 42, subtitle “Traders,” it is provided: “No person or corporation, other than the grower, maker or manufacturer shall barter or sell or otherwise dispose of, or shall offer for sale any goods, chattels, wares or merchandise, within this State, without first obtaining a license,” in the manner therein prescribed. Section 43 (as amended by Laws 1929, ch. 36) declares: “When any person * * * shall propose to sell or barter, or dispose of, or offer for sale anything mentioned in the preceding section, * * * he shall apply to the clerk of the circuit court for the county in which he proposes to carry on such selling or bartering, or disposing of goods, wares, chattels or merchandise; * * * and a license to offer for sale issued by said clerk * * * shall be .good and sufficient as a license to offer for sale in every part of the State; provided that such license shall not authorize the holder thereof to open or carry on any store or fixed place