Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1903-02-03
Power of Towns and Cities to
Define by Ordinance Ex-s
planned and Limited
THE DECISION OF JUDGE PLAT
Person Taking Orders for Future De-
livery Held Not Transient Merchants
Within Meaning of the statute-Ap.
peal to Supreme Court = Important
to Smaller Towns and Cities.
,cial to Times Republican.

Union, Feb. 3.-The case of the town
of Union VS.. Edwin Hoover an en-
ploye of the Sinclair Coffee Co., of
Marshailtown, who was arrested as a
transient merchant for taking oders
from place to place without a license
has again been postponed. The case
came up before Mayor Chaplin yester-
day and by stipulation it was agreed
that no further action should be taken
pending decision in the supreme
court of Iowa on an appeal OF q case
involving exactly parallel question
from Black Hawk county. IL the de-
cision of Judge Plat in the case of
City of Cedar Falls US. w. A. Cent?
Ter is sustained it will mean that the
statute giving municipal corporations
the power to define by ordinance who
shall be considered a transient mer-
chant has a limited meaning and that
persons taking orders for futureN ,tiv-
cry is not such merchant The .
is of the utmost Importance, especially
TO the smaller towns where trade by
passing ordinances designed to prevent
sending agents to solicit for orders
from citizens for delivery at some fu-
ture date.
Section 700 of the code of Iowa pros
vides the cities and towns shall have
the power to define by ordinance who
shall be considered transient ner-
chants" and ito regulate license and
tax their sales" The ordinance of the
city of Cedar Falls material to the
question at issue. is at follows: Every
person who shall, within the limits Of
the City of Cedar Falls, solicit orders
from house to house for the future de-
livery Of goods, wares or merchandise,
whether by samples or not, and any
person who shall deliver goods, wares
or merchandise previously sold by u
solicitor at retail or an order for future
delivery, snail be construed a transient
merchant and shall pay the license fee
herein required, $50.
The evidence in that case showed that
the defendant solicited orders for teas
coffees and spices from house to house
for future delivery to be made a month
later and that he delivered the goods
that had been ordered the preceding
month. Delivery was made from a
wagon, owned by the Atlantic 6 Pacific
Tea Co, of New York city. which has
q branch house ut Davenport. Iowa,
thru which Gentzler's business was
transacted. The goods were shipped
to Gentzler from Davenport In broken
packages contained In one large box
and were by him distributed to h:s
customers who had previously ordered
the same. 1t is not claimed that Cent?
Ter had any proprietary interest in the
goods ordered or delivered and it is
admitted that he received commission
of % per cent as his compensation for
the service rendered his principal in the
transactions. Under the above state
of facts Judge Franklin c. Plat, Of the
Tenth judicial district of Iowa, before
whom the case<was tried, stated in his
opinion filed in the district court Of
Blackhawk county, Iowa. as follows:
Webster defines the word
merchant" as zone who trafiics or car
RES on trade, especially upon large
scale; one who buys goods to sell
again: anyone who is engaged in the
purchase and sale of goods; a trafficer,
a trader" Anderson's Law Dictionary
gives practically the same definition.
Generally, everyone shall be mer-
chant who trafiics by way of buying or
+oarterins OF goods or any merchandise.
Within the realm or in foreign parts"
10 Am. q Eng. Enc. Law 1st Ed, sos.
Commercial travellers or drummers
are not merchants. They follow inde-
pendent callings. They make no con-
hay o1,
dinarily come under any sort of per-
sonal obligation. They are mere So
licitors for orders for others and differ
in no respect from clerks or statesmen
except that they are ambulatory in
their operations and do not usually car
ry or deliver the goods sold. BY their
engagements they bird their employ
ers and not themselves.
1T must be conceded that according
to the ordinary and natural meaning of
the word. GentZler WAS not merchant,
but 1t is commended that the statute
gave the city the power to define by
ordinance who shall he considered tran
silent merchants. and therefore that the
city council could engraft upon the or
binary meaning of the word merchant"
enlarge the definition of the word ana
make it mean something that 1T had
never meant before. ,This contention.
however, is not sound. The statute does
not, nor could it, graft any such power.
1t merely gives to cities and towns the
power to declare what classes of am
bulatory buyers and sellers of goods
shall be considered transient merchants.
There may be va.H good reasons why
certain classes of transient traffickers
il goods should not be required to pay a
license fee: and the considerations that
might be of controlling weight in one
city may be unimportant in another. A
city may, therefore, thru its council ex-
ercise sound or reasonable discretion
in declaring by ordinance who shall be
transient merchants. but it
can not change the meaning of the En-
glish language. The power of the city
was derived from the statute, and in
word which the words declare is the
meaning and neither courts nor
legislatures have the right to add to or
take away from that meaning
'The subject matter of the statute is
MERCHANTS Mere agents, or persons
who sell goods for another on commits
sion. are not merchants. and it follows
that the statute conferred no power
upon the city council (nor in the opin-
ion of the court could 1t confer such a
power) to create a merchant, with only
an agent. in fact, as material to work
upon"
The Union ordinance defines tran