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

4 A
TEN or LEGIsLAT1oN SANCTIONED BY TINE,
| THE USAGE OF STATES, AND THE PRINCIPLES
or EQUITY AND JUSTICE 1.-THE LIABILITIES
AND PRIVILEGES OF RESIDENT AND NON
RESIDENT sAMPLE-MERCHAYTs, &C., &C.
Brief mention has already been made in
the Dispatch OF the decision OF the Court OF
Appeals In the case OF Webber Us. The
Commonwealth on an appeal from the Cir
cult Court OF Henrico county. In this case
the following able opinion was delivered by
Judge Waller r. Staples
| The defendant was convicted in the
County Court OF Henrico OF selling and Of
fering to sell 10 said county certain machines
known as the "Snger Sewinp.Machine +"
without having first obtained a license
according TO law, and was sentenced TO pay
a fine OF $50. To that judgment he applied
for and obtained a writ OF error from the
Circuit Court, which affirmed the judgment
OF the County Court. writ OF error was
awarded by this court 10 the judgment OF
the Circuit Court. On the trial In the
County Court IL was proved that the Singer
Manufacturing Company is a corporation
incorporated by the laws of New Jersey (;
that it has place Of business in the city Of
Richmond, where IL keeps a stock OF sewing
machines that the company is duly licensed
by the State OF Virginia, having paid IL
cense-tax OF 1922, and is therefore resident
merchant OF this State, and taxed as such,
and the defendant Is its authorized agent.
and as such has sold and delivered at the
time of sale since May /, 1880, machines to
divers citizens OF Henrico county. The
question before us Is whether the defendant,
upon this state OF facts, was properly con-
yicted OF the offence for which he was in
dicted.
In determining this question 1t will be ne
cessary to examine the provisions OF va
rious statutes relating 10 the assessment and
collection OF the public revenues. In one
or more Of these statutes it is expressly de-
clared that every license granting authority
TO any person TO engage in any business,
employment, or profession, shall designate
the place OF such business, employment, or
profession, unless otherwise expressly pro.
vided. And engaging in or exercising any
such licensed business elsewhere than at
such designated place is declared 10 be
without license. And no person is allowed
the privilege OF selling throughout the State
under one license, except by special pr0v-
sions OF law Sections 1884, pages 80, 81,
| Virginia Revenue Laws, 1877. These pro-
visions, it will be observed, are very broad
in their operation, and apply as well to mer.
| chants as TO the owners OF articles or ma
chimes manufactured IN this State, or in
other States and Territories. A careful eX-
animation OF the revenue laws fails to show
any enactment allowing either of these
classes OF persons the privilege OF selling
elsewhere than at their designated places OF
| business, unless il be the statutes relating
to sample-merchants, found in the 34th
and 35th sections. pages 6l and 62,
of the Revenue Laws. These sections de-
clare that any person who Shall sell, or offer
| to sell, any description Of goods, wares, or
merchandise by sample-card, description,
or other representation, verbal or other
wise, shall be deemed a sample.merchant.
Any person engaging in such business must
obtain a license which cOniers upon him the
privilege OF selling anywhere in the State.
He may under his license appoint one agent
or salesman to sell in his place. But for
any additional agent or salesman employed
to sell he must pay an additional tax OF fifty
dollars. 1t is also provided that nothing in
either OF the sections shall be so construed
as to prevent any resident merchant or
manufacturer from exhibiting a specimen
OF his goods, wares, or merchandise any,
where in the State, or the exhibition OF a
|
exhibiting is authorized to sell without a
sampe-merchant license. And at the con-
clusion OF the 35th section is the following
provision "Nothng in this or the prece-
ding section (34tb) shall be construed to re-
Quire any licensed merchant or manufac-
turer who has paid license tax of not less
than one hundred dollars to pay an addi-
| tiOnal tax
| FOR SELLING OR OFFERING TO SELL
by sample, either by himself or his agents"
Under this provision the licensed merchant
or manufacturer who pays tax OF 500
may sell by sample himself or he may sell
by agents. 1t is very true the language
quoted does not OF itself confer express
authority so to sell, but is rather in the form
OF an exception or provso. 1t must be re-
membered, however, that any person Is
privileged to sell goods, wares, and mer-
chandise until prohibited by some statuary
enactment, and but for the oath and 35th
sections any person may sell by sample 10
any extent. When, therefore, the licensed
merchant or manufacturer is excepted out
OF the operation OF these sections he stands
precisely as though they had never been
adopted. IL these sections do not apply 10
him there is no law that does, and he may
sell by sample himself in any part Of the
State, or he may appoint any number oil
agents to sell for him without the payment
of any additional tax. In this respect he
stands upon much higher ground than the
mere sample-merchant, who for every ad.
ditional agent Is required TO pay tax OF
$50. This discrimination, IL it may be SO
termed, is founded upon sound cOnsidera'
tions of public policy. The sample-mer'
chant is generally nonresident, and be-
yond the small tax he pays into the Trea'
surv contributes nothing to the wealth and
resources OF the State, whilst he is con-
stantly Withdrawing large amount OF capi'
tai from our midst as well as iDiuriOusly
affecting domestic trade and enterprise. On
the other hand, the resident merchant pays
not only the tax upon his business, but gen.
erally he pays upon other subjects OF taxa
ton necessarily employed in that business,
and at the same time he is substantial con-
tributor to the wealth Of the State In time
OF peace and her strength in time OF war.
We repeat, therefore, the statutes already
cited have made distinction between
licensed merchant or manufacturer who
paws tax OF one hundred dollars and the
mere sample-merchant. 1t was conceded
by the Attorney.General that this distinc-
ton has been recognized and acted upon
by the several departments OF the Govern.
ment since 1874 until very recently, and
although the Legislature has been repeat
edIy in session in the mean time II has never
jnterfered to change the rule OF construc'
ton so adopted. We think the courts ought
not to do so, but leave the whole matter TO
the Legislature, where 1t properly and
rightiulIy belongs.
we are now to inquire what are the rights
and privil sges of sample merchant; FOL