The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-08-24

with sample-cards and descrlptl0n-Iists, and
receiving orders to be filed by their re-
spective employers. The traffic yielded 10
revenue TO the State, and was deeply init
rlous as well as unjust to the licensed
merchant and manufacturer. 1t is hardly
to be supposed that the Legislature in pro.
viding remedy for this abuse intended TO
confer new privileges upon the licensed
merchant and TO allow him to sell as Dler-
chant or pedler his goods by retail In any
part OF the State. II the right to sell by
sample carries with 1t the right to sell and
deliver as retail merchant or as pedler,
every licensed merchant or manufacturer
who pays tax OF 300 may establish place
OF business in each county in the State
and there retail his goods, or he may ap-
point any number OF agents to peddIe his
goods from place to place, and sell them
without restraint or limitation. The result
would be that license to sell at one place
in effect confers authority TO sell at any
other place, according to the inclination or
interest OF the granter OF the license. A
person licensed as merchant to sell goods at
q particular place may, OF course, receive
orders from his customers and others
in any and every part OF the State, may tiil
these orders, and forward the goods accord
ingy. 1t Is the constant practice, and no
one presumes 10 question its legality. ASel
so merchant or manufacturer paying tax
OF 800 may send his agents into any coun-
ty supplied with samples.cards or descrip-
tiye-lists, and may receive and iii orders
for furnishing and delivering goods so sold
by sample-card or description.
And while it is conceded TO be no easy
task precisely to define where the privilege
| ~ ha To- bau hon nrt tyh \
terminates, it Is very clear that person,
whether he be owner or agent, who has
place OF business In county or town and
there sells and delivers the articles at the
time OF sale, or a person who carries his
goods from place to place and sells and de-
livers the article at the time OF sale, Is not
selling by sample-card or description.
Such a person may be a retail merchant OF
pedler, but he is not a sample merchant.
And this is precisely what was done by the
defendant. Either be had place OF busi-
ness in Henrico county, where he kept the
machines for sale and delivery at the time
OF sale, or he carried them from place to
place and sold and delivered wherever be
would find purchaser. In either case he
was not selling by sample. This PROPOSE
tloD seems to be so free from difficulty II
would have been passed by without discus
sion but for the earnest and elaborate argu-
ment OF the learned counsel for the de-
fence.
1t Is claimed, however, that although the
defendant may be guilty OF violating The
statutes relating TO sample-merchants, or the
statute relating to pedlers, he cannot be
convicted in this case. because he is not in
dicted under those statutes, but under what
is known as the 45ih section OF the
Revenue Laws, 1873, page 65. That section
provides that any person who shall sell, oil
offer TO sell, the manufactured articles OF
machines OF other States or Territories, ufS
less he be the owner thereof and taxed as
merchant, or who shall take orders therefor
on commission or otherwise, shall be deem
ed TO be an agent Tor the sale OF manufac'
tured articles Of other States or Territories
The ground taken by defendants is that
this section contains an express exception
in favor OF the owner, who has paid IT,
cense tax; that this exception creates an
inevitable implication that such owner may
sell, and il he may sell his agent may do SO
under the decision in MyerdOck case."-2 70
Graft, 9S8. The argument is plausible. but
1t is not sound. In the first place the forty
fifth section was not designed TO confer
rights and privileges upon any class OF per-
sons, either the owner or venderS OF goods
wares, and merchandise. Those rights are
defined by other statutes. The sole object
of the 45th section was 10 restrain-tC
provide some remedy for an evil growing
out OF the sale in this State Of
ARTICLES MANUFACTURED IN OTHER STATES
brought here by persons who were thu
agents OF others, or, II they were the own
ers, paid no tax for the privilege. All sucl
persons are deDominated agents by the sta
tute, and are required to take out license II
each county in which they sell. But II tht
construction OF defendants counsel tie cor
rect, il the 45th section is 10 be read as o.
itself comforting upon the owner who ha'
paid merchants tax authority TO sell, W.
have this anomalous condition OF things
Under the 34th and 35th sections residen
merchant who pays 800 tax may sell by
sample; but the payment Of the tax is
condition precedent to the exercise OF tn,
privilege. According TO the Interpretation
now sought to be put upon the 45th section
any licensed merchant who is the owner
whether he has paid $50 or 500, may sci
not merely by sample, but he may sell by
retail as merchant or rs pedier IN every
county or town in the State without limi
payment OF 500 tax is necessary in orde
to sell by sample under the 45th section
according TO the present pretensiOn any re
sident merchant who is the owner OF tn
goods he offers for sale may sell without liml
as to time or place. 1t is impossible that
construction which leads to such c0nse
quences can be correct. IL is very true, a
was held by this Court in the Myerdock case
Ia ottth raH IN .al
st a particular place be may appoint an agen
to sell there for him. But il is equal.
true that the merchant cannot confer upol
an agent authority to sell where he himsel
cannot lawfully sell. If, therefore, tn
Singer Manufacturing Company cannot, un
der its Richmond license, sell in Henric'
except by sample, it cannot, OF course, ap
point an agent to sell there in Its place. s.
that at last we are brought back to the in
quiry, What are the privileges OF resi-
dent merchant who has paid tax OF on,
hundred dollars?" These privileges, what
ever they may be, are defined not by th'
45tb section, but by other provisions already
cited. But although the owner is not pun
isbabIe under the 45th section because he Il
expressly excepted from its operation
there Is no such exception in favor OF am
other person, not even an agent OF thu
owner. For whilst the law protects thu
agent In selling where the principal ma,
lawfully sell, 1t does not so protect him il
selling where the principal himself is pro
hibited from selling. 1t Is very true als'
that the 45th section is silent as TO the mod
and manner OF selling. 1t is matter, how
ever, OF no importance. All manner o
selling is prohibited unless the party cal
show that the privilege Is conferred upoi
him under other statutes, as, for example
that he is merchant licensed to sell at th'
place of sale, or that he is a resident manu-