Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1905-03-15

ply sold on commission the goods OF
the company. The acts and circum-
stances surrounding the transaction
tend to corroborate. rather than to
contradict these statements.
These facts appearing, was the de-
PENDANT q transient merchant coming
within the inhibition of the ordinance?
We are cited to the City OF Cedar Falls
VS.. Gentzer, 1923, Iowa, go. In many
respects the case is analogous to the
case at bar, but upon the vital ques-
ton as to whether the defendant was
a merchant there is marked dislnc-
ton. The business of the defendant
In that case is thus described: "The
business of the defendant consists of
soliciting order for groceries from con-
sumers, and thereafter making deliv-
cry Of the goods ordered; his method
involved the sending of orders secured
by him to q wholesale house in Dav-
export accompanied by sum of mon
ely sufficient to cover the wholesale
cost thereof. Collections were
made by the defendant on delivery OF
the goods and the amount collected
less the cost price represents his COM
pensation or profit" 1t will be OBJ
served that in this (Gentzer case) the
defendant purchased goods ana was
the owner at the time of sale; he pur-
chased them at wholesale, and deliv-
cred them and collected for them as
his goods. 1t is true that at the time
of purchase at wholesale he had them
put up in small packages for such
purchaser, the sales having been pre-
viously made; but this was done mere
ly as matter of convenience, ana IN
no manner affected the question OF
title. He simply requested the whole
saler to put the goods up in that form;
being the owner of the goods and SELL
ing them at retail in the city of Cedar
Falls, he became merchant. and do
ing this at intervals, and not being a
resident he became transient mer-
chant.
Had the defendant purchased the
goods from the Sinclair Tea & Coffee
Company and thus becoming the own
err thereof, had he sold them in the
manner disclosed, the defendant would
have come within the rule laid down
in the Center case As stated, we
think 1t to be fully established in the
case that the defendant was selling
goods for the Sinclair Tea g. Coffee
Company upon commission, ana that
he at no time had title to the goods.
"This being true the question IS pre-
scented whether a person taking orders
for wholesale house and distributing
the goods sold receiving commissions
for services, is a transient merchant III
such cases as to make him amenaple
to the provisions of the ordinance In
question. Section 700 Of the code gives
cities the power ito define by ordinance
who shall be considered as transient
But 1t will not he conten-
ded that the city council would nave
authority to define same calling as that
of transient merchant, which was
clearly not such, and thus make those
engaged therein subject to the provis-
ions Of the ordinance. If selling goods
on commission for, wholesaler con-
stitutes the agent q transient mer-
chant, then every travelling man whose
salary is fixed by commission on sales,
is a transient merchant and may be
taxed as such.
what is the purpose of the statute
taxation OF transient mer-
chants? 1t is well stated in the city of
Waukon VS.. Fisk, 100 N. w. 475 as
follows: "The abuse sought to be
avoided by this statute in the practice
of that class Of dealers, who, with
large or small stocks OF goods, eslab-
lish themselves for a few days, weeks
or months in place and then move on
into other fields, staying nowhere
long enough to have acquired a per-
manent residence, and while claiming
the benefit and protection of the laws
Of the state, contribute nothing to the
local or general public revenue" The
purpose of the statute, thus stated,
clearly indicates that it is to enable
the taxation Of those merchants, who
go from place to place and whose
stock of goods do not contribute to the
public revenues because of the migra-
tory character of the business.
CLEARLY the defendant was not such
as would come within the
purpose of the statute. Nor was ne in
the proper meaning Of the term, 4
transient. He came at regular times
and returned at stated Intervals.
without further extending the opin-
ion we are convinced that the defend-
ant was a soliciting agent, and not
transient merchant.
'Tn harmony with the views above
the motion to dismiss the
defendant in each of the above en-
titled cases is sustained. Defendant Is
in each case, and his bonds
released. Plaintiffs excerpts.
20. A. BYINGTON, Judge"