Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-07-17
COURT DECISIONS.
DlGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
vlRcINIAN-PILOT.
Notes of Cases Recently Decided
Which Are Of Interest to
Our People.
BROWN v. COMMONWEALTH

DiNOhN V. COMM
supreme Court of Appeals of Virginia.
June II, 1900
DEALER IN COUNTRY PRODUCE
is NOT LIABLE TO BE tanned AS
a "MERCHANT." NOR Is HE LA.
Bile, UNDER THE CHARTER OF
THE CITY OF ROANOKE. TO PAY
a LICENSE TAX. If SUCH
DEALER PAYS y CURBAGE TAX
IN THE MARKET, THIS DOES
NOE ENTITLE HIM TO DO BUSI-
NESS AS a MERCHANT.
w. Z. Brown was merchant In the
county OF Franklin. and has the license
required by law for the privilege OF
uoilS business iS "a merchant in that
county. In the course of his business
lie acquires by barter country produce.
Sucn as eggs, butter. fowls and vegeta-
pieS: which he often gathers UP by
sehulhG ms wagon around among his
customers and from time to time he
oiihsS the country produce. raised on
ms farm and acquired through his
store. TO the city OF Roanoke for sale.
Such produce is sold by him from his
wagon on the city market. in accord
nnce with the market regulations of
tnc clty, which regulations impose
what ~ Known as curbage tax for
the privilege of selling each load of
~ cNuNt oil the market square ana con-
mes the sale OF such produce TO the
market square. On October t. 1899
broWn came to the city of Roanoke
with Il wagon load OF country produce
some of which was raised on his own
farm and the balance was acquired bv
him in the course of his; business. He
paid the curbage tax required by the
market laws of the city and on the
market square sold his load OF produce
TO merchant doing business in the
CITY. After having sold his produce he
was cited to appear before the Police
Justice for the city to show cause why
he should not he fined for doing bust
ness as a merchant in tho city without
having first obtained a license from the
city and from the State of virginia 10
conduct such business.
From the Judgment against him he
appealed.
The court. after citing the provisions
of Code section $40. says:
II is. therefore. clearly the policy OF
the law 10 exempt persons who deal in
country produce, as plaintiff in error
does. from the payment of a license tax
either as merchant or as IL pedlar, or
any tax for buying or selling outside of
the market of a city or town such pro-
duce. He does not come under the eX-
ccption. in the statute above referred
TO. by keeping n place of business for
the sale of country produce in or with
In Il half mile of the city of Roanoke
nul su'ii SdicS us were maze by nm IN
the city of Roanoke were made from
his wagon on the market square.
a merchants license contemplates
that the merchant is TO have n fixed
place of business within Il county or
cltN-a store or shop for the sale Of
goods. This is the common acceptation
of the term as given in . Bouvier's l..
Die. p 155. The same author defines
the word merchant" in its legal ac-
ceptation to mean one whose business
it is to buy and sell merchandise. and
SAYS that it applies 10 all persons who
habitualiy trade in merchandise.
Neither in the legal or common accep-
tation of the word merchant" was
plaintiff in error conducting n mercan-
tile business in the city of Roanoke
when selling on the market square of
the city from his wagon country pro-
ducc. and. therefore, was not liable TO
In the city without having first OBJ
tanned license from the Common
wealth to conduct such a business
1t is claimed that sec. 104 OF the char
ter of the city of Roanoke. Acts 1897
9S. y. 5i9. furnishes authority in the
city to impose merchants license tax
upon piaintif in error. This section.
after specifying various. kinds of bust
ness on employment upon which tho
city may levy IL license tax provides
that license may be required of any
person whatsoever doing business in
said city, whether the business or en-
ployment be of a like character orSxind
as that specially mentioned or not and
whether Il IlcenSc Is required therefor
br state or not. Can it be said that
plaintiff in error was doing business in
the city Of Roanoke within the mean
ing OF the section? We think not. 1t