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Eldorado Springs v. Highfill.

cities by ordinance to prohibit "any person, firm or corporation from carrying on or engaging in any business in said city without having obtained and paid for a license," which includes a canvasser who goes from house to house soliciting and taking orders for goods by sample, since that carrying on and engaging in a business, and therefore it is immaterial whether a canvasser be considered a merchant or a peddler.

No Specific Use of Word in Statute: General Words. Simply because the word "canvasser" is not used in the statute, it will not be held that the city is powerless to tax "canvassers" engaged in canvassing from house to house for orders for goods to be delivered upon conditional sale. While general words used in a statute are to be limited in their meaning to the particular words preceding them, and while, strictly speaking canvassers may not be ejusdem generis with merchants and peddlers, they are sufficiently so within the meaning of a statute authorizing the city to "regulate and license all business, trades and avocations," even though it does not use the word "canvasser."

7. MISDEMEANOR: Charge in Words of Statute: Synonym. Charging a misdemeanor in the substantial larage of the statute is sufficient. Nor is the complaint insufficient because a synonym of the statutory words is used instead of the words themselves.


Appeal from Cedar Circuit Court.-Hon. B. G. Thurman, Judge.


Charles E. Gilbert and J. F. Rhodes for appel

(1) A sale in this State of goods which are in another state at the time of said sale, is interstate commerce, and no license is or can be required for making such sale, being violative of section 8 of article 1 of the Constitution of the United States. State v. Looney, 214 Mo. 216; State v. Emert, 103 Mo. 245; Hynes v. Briggs, 41 Fed. 469; Robbins v. Taxing District, 120 U. S. 489; Brown v. Houston, 114 U. S. 622; Welton v. State of Missouri, 91 U. S. 275; Woodruff v. Parhan, 8 Wall. 123; Cook v.

Eldorado Springs v. Highfill.

Pennsylvania, 97 U. S. 566; Emert v. Missouri, 156 U. S. 296; Dozier v. State, 218 U. S. 123; Brookfield v. Kitchen, 163 Mo. 546; State v. Hoffman, 50 Mo. App. 585. (2) The plaintiff city has no power to license, tax and regulate any business or occupation unless specific authority is granted to it to do so by the Legislature and Sec. 9399, R. S. 1909, governing cities of the fourth class does not give said city any authority to assess a tax against a "canvasser or agent taking orders or selling goods to customers by canvassing or going about from house to house" and that part of said ordinance is null and void. Independence v. Cleveland, 167 Mo. 384; Knox City v. Thompson, 19 Mo. App. 523; Hannibal v. Price, 29 Mo. App. 280; Dillon on Mun. Corporations (1 Ed.), sec. 55; St. Louis v. Laughlin, 49 Mo. 599; Grumley v. Webb, 44 Mo. 444; St. Louis v. Herthel, 88 Mo. 128; Constitution of Missouri, sec. 3, art. 10; Kansas City v. Grush, 151 Mo. 128; St. Louis v. Spiegel, 60 Mo. 587. (3) The defendant is not a peddler. Sec. 10282, R. S. 1909; Trenton v. Clayton, 50 Mo. App. 535; 1 Dillon on Mun. Corp. (4 Ed.), sec. 89.

R. N. Banister for respondent.

(1) If the judgment on the circuit may be sustained on any theory of the law applicable to the facts, on either count of the complaint, it must stand. Rinard v. Railroad, 164 Mo. 270; Hess v. Ganz, 90 Mo. App. 439. (2) Respondent being a city of the fourth class had the power and authority under its charter (Sec. 9399, R. S. 1909) "to license, and to levy and collect a license tax on hawkers, peddlers, merchants of all kinds, and all other business, trades and avocations whatever." (a) Appellant and his business at El Dorado Springs bring him within the designation "merchants

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Eldorado Springs v. Highfill.

of all kinds." Kansas City v. Lorber, 64 Mo. App. 608; Kinney's Law Dict. & Glos. 459; Anderson's Law Dict. 671; 20 Am. & Eng. Ency. (2 Ed.), p. 579. (b) But if appellant was not a merchant of any kind, and his business not that of a dealer in merchandise, it certainly was ejusdem generis with that of dealing, buying and selling merchandise, and that will suffice under the all-embracing clause "all other business, trades and avocations whatever." Kansas City v. Lorber, 64 Mo. App. 608; Kansas City v. Vinquist, 36 Mo. App. 584; Brookfield v. Kitchen, 163 Mo. 551; St. Louis v. Woodruff, 71 Mo. 92; St. Louis v. Herthel, 88 Mo. 128; Connor v. Carterville, 125 S. W. 861. (3) Appellant, in his transactions at respondent city, was not engaged in interstate commerce, and he cannot hide behind. the Aegis of the Federal Constitution under any yet construction and application of section 8, article 1, of that instrument. He was not the agent of the Pennsylvania company in his dealings with his customers. The very latest cases in this court in point are these of Jewel Tea Co. v. Carthage, 257 Mo. 383, and Fleming v. Mexico, 171 S. W. 321, and under the standards there set up appellant does not fill the measure.

WALKER, J.-This suit was brought in the mayor's court of El Dorado Springs, charging defendant with violating an ordinance of said city in engaging in the business of a canvasser or agent by taking orders or selling goods to customers without taking out a license authorizing him so to do. He was convicted as charged and his punishment assessed at a fine of $20. He appealed to the circuit court of Cedar County, where the judgment below was affirmed. He thereupon perfected an appeal to the Springfield Court of Appeals and filed therein an application for a transfer of the cause to the Supreme

Eldorado Springs v. Highfill.

Court on the grounds (1) that a Federal question was involved necessitating a construction of the United States Constitution; and (2) that a construction of the State Constitution was also necessary to a determination of his rights. The application was granted and the case transferred to this court.

The material parts of the ordinance in question are as follows:

"Section 1. There is hereby levied a license tax upon the various business, trades, callings, occupations, objects and persons in the city of El Dorado Springs, Missouri, hereinafter named, and the same shall be licensed and regulated as hereinafter provided.

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"Canvassers or agents taking orders or selling goods to customers, by canvassing or going about from house to house. $20.00 per year.

$1.00 per day or $15.00

per month.

"Section 2. Any person, or firm or corporation who shall carry on or engage in any trade, business or occupation or calling in this city, herein required to be licensed, without first having obtained and paid for said license, or shall fail, neglect or refuse to comply with any other provision of this ordinance, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than five dollars nor more than one hundred dollars."


The formal sufficiency of the complaint charging defendant with a violation of this ordinance is not questioned. The defendant at the time of his arrest was going from house to house carrying samples of aluminum wares for kitchen and cooking purposes, exhibiting same to prospective purchasers, many of whom agreed to buy from him wares similar to the samples and to pay for same upon delivery after

Eldorado Springs v. Highfill.

satisfactory examination. Two separate orders for goods of the kind agreed to be purchased were made by the defendant. One was directly to the manufacturing company of the wares at a point in Pennsylvania and the other to a branch establishment of the same company in East St. Louis, Illinois. Each of these orders directed the company addressed to send to defendant a quantity of their wares sufficient in each case to meet the requirements of the prospective sales he had made. In no case did he furnish the manufacturing company with the names of particular purchasers of any of the wares ordered. Before making these orders he had in each case furnished the company with letters of credit to cover the cash amount of the particular order. The goods in each order were billed and shipped to defendant in bulk and he paid the freight charges thereon. Upon their receipt he sorted and delivered them in accordance with the conditional orders theretofore made, and if the goods were accepted they were paid for by the purchasers. He had an agreement with the manufacturing company that he might return at its expense goods on any order to the amount of $20 not taken by any one person to whom he had contracted to sell them and who had declined to receive same, and for goods so returned he was to be credited at the wholesale price of such articles.


I. Defendant's contention is that he was, as the agent of the manufacturing company, engaged in interstate commerce and hence not amenable to the license laws of this State nor to municipal ordinances. To sustain this contention he cites Fleming v. Mexico, 262 Mo. 432; Jewel Tea Co. v. Carthage, 257 Mo. 383; and Kansas City v. McDonald, 175 S. W. (Mo.) 917.

A comparison, or if there be differences, a contrast, of the facts in these cases with those in the in

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