Emert v. Missouri

This was an information, filed July 27, 1889, before a justice of the peace in the county of Montgomery and state of Missouri, for a misdemeanor, by peddling goods without a license, in violation of a statute of the state, contained in chapter 137, entitled 'Peddlers and Their Licenses,' of the Revised Statutes of Missouri of 1879, the material provisions of which are copied in the margin, and which is re-enacted as chapter 125 of the Revised Statutes of 1889.

The information alleged that the defendant on June 26, 1889, in that county, 'did then and there unlawfully deal in the selling of goods, wares, and merchandise, not being books, charts, maps, or stationery, by going from place to place, in a cart or spring wagon, with one horse, to sell the same, and did then and there, while going from place to place to sell said goods, wares, and merchandise aforesaid, unlawfully sell one sewing machine to David Portucheck, without then and there having a license as a peddler, or any other legal authority to sell the same; against the peace and dignity of the state.'

The defendant pleaded not guilty, and was adjudged to be guilty, and sentenced to pay a fine of $50 and costs. He appealed to the circuit court of the county; and in that court the parties, for the purpose of dispensing with evidence, agreed in writing, signed by their attorneys, that the case might be decided by the court on the following agreed statement:

'(1) That for more than five years last past the Singer Manufacturing Company has been, and still is, a corporation duly organized under the laws of the state of New Jersey, and a citizen of that state.

'(2) That on and prior to June 26, 1889, E. S. Emert, defendant, was in the employ of said Singer Manufacturing Company, on a salary for his services, and at said time, in pursuance of said employment, was engaged in going from place to place in said Montgomery county, Missouri, with a horse and wagon, soliciting orders for the sale of Singer sewing machines, having with him insaid wagon a certain New Singer sewing machine, which on said day he offered for sale to various persons at different places in said county, and that on said day the defendant did find a purchaser for said machine, and did sell and deliver the same to David Portucheck, in said county.

'(3) That said Singer machine in question was manufactured by said Singer Manufacturing Company at its works in the state of New Jersey, and that said sewing machine belonged to, and was the property of, said company, and that it was forwarded to this state by said company, and by it delivered to the defendant, as its agent, for sale on its account, and said machine was sold on account of the said manufacturing company; that said machine was of the value of fifty dollars; that the defendant had no peddler's license at said time.'

The court adjudged that the defendant was guilty as charged in the information, and that he pay a fine of $50 and costs. The defendant moved for a new trial, because the facts in the agreed statement constituted no offense, and because the statute on which he had been charged and convicted, being chapter 137 of the Revised Statutes of 1879, was in contravention of section 8 of article 1 of the constitution of the United States, and void in so far as it affected him. The motion for a new trial, as well as a motion in arrest of judgment, was overruled; and the defendant, upon the ground that a constitutional question was involved, and assigning as errors the same causes as in his motion for a new trial, appealed to the supreme court of the state, which affirmed the judgment. 103 Mo. 241, 15 S. W. 81.

The defendant sued out this writ of error, which was allowed by the presiding judge of that court upon the ground that there 'was drawn in question the validity of a statute of, or an authority exercised under, said state, on the ground of their being repugnant to the constitution of the United States, and the decision was in favor of such their validity.' S. N. Taylor and Lawrence Maxwell, Jr., for plaintiff in error.

[Argument of Counsel from pages 299-306 intentionally omitted]

R. F. Walker, Atty. Gen. Mo.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.