#### *Mitchell v. The Commonwealth.

June, 1829.

Commission Merchants — Right to Sell Tobacco Prepared for Market without Merchant’s Licence. — Tobacco the growth ol' the state, in the condition in which it is ordinarily prepared for market by the grower, is not goods, wares and merchandize, within the meaning of the act of 1822-8, ch. S, and a commission merchant in Richmond is not obliged to obtain a merchant’s licence to justify him in selling the same.

An information was filed against Garland H. Mitchell, in the hustings court of Richmond, for selling, by wholesale, goods, wares and merchandizes, of domestic growth, without licence, contrary to the statute of February 26, 1823, (sess: acts of 1822-3, ch. 3,) which provides, that if any person shall sell, by wholesale or retail, goods, wares and merchandize, of foreign or domestic growth or manufacture, without licence &c. he shall forfeit and pay 100 dollars.

At the trial, it was proved, that Mitchell was a commission merchant, and sold tobacco &c. on commission: whereupon he moved the court to instruct the jury, “that one selling tobacco on commission was not bound to obtain a licence for so doing. ” The court refused to give this instruction ; but stated that persons so selling tobacco, the property of the growers, were not bound to obtain a licence for that purpose. The jur3r found Mitchell guilty, and judgment was rendered accordingly. To this judgment he obtained a writ of error from the circuit court of Henrico; which has adjourned to this court, the questions, 1. What is the proper construction of the act of February 24, 1823? And 2. Ought the judgment of the hustings court to be reversed or affirmed?

MAY, J.

We consider the hustings court as having decided, in effect, that tobacco of the growth of this state, in the condition in which it is ordinarily prepared for market by the grower, is comprehended within the terms “goods, wares and merchandize,” in the statute. It is believed, that this construction was never given to the statute, until the year 1828 — five years after it was passed; and the fact that *the legislature, by an act of the last session, have provided against it in future, is entitled to some consideration.

A careful examination, however, of the various statutes on this subject, leads us to the conclusion, that the words ‘ ‘goods, wares and merchandize,” as used in the revenue laws, were never intended to embrace the agricultural productions of the state. Thus, the annual act imposing taxes &c. exempts from this tax, farmers &c. who purchase and sell sugar, salt, iron *&c.*“as a return load for their produce and other property, taken to market.” The law defining wholesale and retail merchants, declares the former to be those, of whose annual sales, one half or more, shall be made by the bale, piece, package, or dozen; terms wholly inapplicable to corn, wheat, tobacco &c. And we know, that these, and many other articles of produce and property, are not, in this state, ordinarily termed “goods, wares and merchandizes;” and have never been regarded as such, within the meaning of the revenue laws. To give this comprehensive signification to them, would make them embrace almost every subject of ordinary traffick and sale in the country; and would require a large portion of several classes of our citizens to obtain licences as merchants.

Construing the act of February 24, 1823, therefore, with reference to its object and subject matter; and guided, in the interpretation of its words, by the provisions of other laws on the same subject; we are of opinion, and do accordingly certify to the circuit court, that tobacco, of the growth of this state, and in the condition in which it is ordinarily prepared for market by the grower, is not goods, wares or merchandize, within the meaning of the said act, no matter how or by whom sold ; and that the judgment of the hustings court ought to be reversed, for not giving the instruction, which was asked for, in this case.