State v. . Miller , 93 N.C. 511 ( 1885 )

The offense with which the defendant is charged is a violation of sec. 28, ch. 175, of the Acts of 1885, entitled An Act to Raise Revenue, such parts and so much of which, as are material in passing upon the appeal, are as follows:

"Every person acting as a drummer in his own behalf, or as agent for another person or firm, who shall sell or attempt to sell, goods, wares, or merchandise of any description, by wholesale, with or without samples, shall, before soliciting orders or making any such sales, pay to the State Treasurer a tax of one hundred dollars, and obtain a license which shall operate one year from its date, and shall be exempt from any other license tax, either State, county, city, or town. . . Any person violating the provisions of this section shall be guilty of a misdemeanor, and shall be fined not less than two hundred dollars or imprisoned not less than ninety days," etc.

While the defendant as a general cotton and commission merchant, in association with his sons, and under the partnership name of R. M. Miller Sons, is conducting a regular and recognized business in Charlotte upon which he pays all the taxes imposed under the revenue law, he is sought to be made responsible as a "drummer" under another clause of the act, though not so designated in the charge, for the single act of selling a consigned and paid for lot of flour sent from a distant state.

We think few persons in reading the statute and noticing the different classes of employment or occupation there assessed would regard the act of the defendant as a "drumming" and the defendant as a drummer within the purview of the section upon which the indictment (514) rests, nor could they well do so without confounding business distinctions enumerated and separately taxed therein. The word, in our opinion, is neither used in the act nor in its common acceptation in a sense which admits its application to the conduct of the defendant as ascertained in the special verdict. The writer of this opinion has examined the clauses imposing a tax upon the business of a drummer contained in the series of enactments for raising revenue from 1866 to that of 1885, to discover its meaning from its relations and surroundings, and it is manifestly employed to mark out, as a proper subject for taxation, another and distinct employment from that of general and stationary merchandising, such as that in which the defendant is engaged.

In the Revenue Act of 1866 the tax is imposed upon "every nonresident merchant, drummer, or who shall come into this State and sell," etc. Ch. 21, sec. 22.

In the Act of 1866-'67 the words are "every nonresident or drummer, or agent of a nonresident, who shall sell," etc. Ch. 72, sec. 22.

The same terms are used in the Act of 1868, ch. 108, sec. 33; of 1869-'70, ch. 229, sec. 27; of 1870-'71, ch. 227, sec. 26; of 1871-'72, ch. 58, sec. 24.

These statutes evidently confine the word "drummer" to agents and representatives of nonresident principals in whose employment they are in soliciting purchases in the State.

In the subsequent Revenue Act the sphere is enlarged and "drummers and traveling agents of any person," resident or nonresident, are included. Act of 1872-'73, ch. 144, sec. 23; Act of 1873-'74, ch. 134, sec. 23; Act of 1874-'75, ch. 185, sec. 23. In the Act of 1876-'77 the language is varied in form but in substance the same: "Every person acting as a drummer in his own behalf or as agent for any other person," ch. 156, sec. 24; and this phraseology is pursued in subsequent enactments. Act of 1879, ch. 70, sec. 25; Act of 1881, ch. 116, sec. 19; Act of 1883, ch. 136, sec. 28.

It is very obvious that this legislation is directed to a class of (515) traveling or itinerant tradesmen, first to such as represented nonresident merchants and whose occupation was in competition with resident merchants, who paid an assessment upon their business to which the nonresident was not subject. It was subsequently extended to similar agencies, engaged in the same calling, of resident merchants, perhaps to avoid a discrimination that might fall under the inhibitions of the Federal Constitution. Albertson v. Wallace, 81 N.C. 479.

But the essential and distinguishing difference between these and salesmen having a fixed place of business is that the drummer is a traveling and soliciting salesman, and these separate callings are assessed with dissimilar taxes in the entire series of financial legislation. That this is the sense of the legislation is manifest from an inspection of the enactment itself. The expression "with or without samples" indicates the absence of the goods proposed to be sold from the place of sale, and can scarcely be supposed to include the home merchant, whose stock of goods is on hand for direct examination.

Our definition of the term is not without the support of judicial authority.

"The term `drummer,'" says Turney, J., delivering the opinion of the Court, "has acquired a common acceptation, and is applied to commercialagents who are traveling for wholesale merchants, and supplying the retailtrade with goods, or rather taking orders for goods to be shipped to theretail merchant upon which merchandise the State collects her revenue."Singleton v. Fritsch, 4 B. J. Lea (Tenn.), 93.

We are therefore clearly of opinion that the act of the defendant is not within the penal interdict of the statute, nor does it make the defendant a drummer, subject to its provisions.

But it is also to be noticed that the offense charged is not that shown on the proofs and found by the jury. It is alleged in the indictment that the sale of the flour was made to M. C. Mayer and John Ross, partners, constituting the firm of Mayer Ross; that is, to these two persons in their capacity as partners, while the finding in (516) the special verdict is of a sale made to M. C. Mayer alone. Upon the facts contained in the special verdict the defendant cannot be adjudged guilty of the charge set out and specified in the indictment.S. v. Faucett, 20 N.C. 239; S. v. Stamey, 71 N.C. 202. We have, however, deemed it best to dispose of the question as affecting the administration of the revenue law.

There is no error in the ruling, and the judgment must be affirmed.

No error. Affirmed.

Cited: S. v. Long, 95 N.C. 583; S. v. Tisdale, 145 N.C. 424; S. v.Gibson, 169 N.C. 322; S. v. Harbert, 185 N.C. 762; S. v. O'Briant,188 N.C. 455; S. v. Corpening, 191 N.C. 753.