unsolicited request of purchasers. But the unlicensed agent of a city firm could lawfully go about the country delivering to customers previously-ordered goods made by his principals, sometimes adding more than had been ordered.1 Again,—

Selling by sample. - Except by express words, sometimes found in a statute,2 it is not a violation of the law for one to sell by sample the goods of a permanent dealer. The permanency of the real vendor, from whose place of business the sales are made within the spirit of the law, takes the case out of the reason of the prohibition.

§ 1077. Manner of traveling. It is immaterial how the traveling is done, "whether," in the words of Rogers, J., "on foot or horseback, in wagons, carts, sleighs, or canal boats."

§ 1078. On commission - By auction.-Neither the fact that the traveling trader sells the goods on commission, nor

1 Com. v. Ober, 12 Cush. 493, 495. And see Rex v. McKnight, 10 B. & C. 734; [Com. v. Crowell, 156 Mass. 215, 30 N. E. R. 1015; S. v. Rhyne, 119 N. C. 905, 26 S. E. R. 126; City of Greensboro v. Williams, 124 N. C. 167, 32 S. E. R. 492. S. v. Gouss, 85 Iowa, 21, 51 N. W. R. 1147; City of Stuart v. Cunningham, 88 Iowa, 191, 55 N. W. R. 311, 20 L. R. A. 430; S. v. Down ing, 22 Mo. Ap. 504; S. v. Snoddy, 128 Mo. 523, 31 S. W. R. 36; S. v. Fetterer, 65 Conn. 287, 32 Atl. R. 394; S. u Kumpel, 2 Marv. (Del.) 464, 43 Atl. R. 173; S. v. Powell (N. H.), 41 Atl. R. 171; S. v. Wells (N. H.), 45 Atl. R. 143; Neagle v. City of Centralia, 81 IIL Ap. 334.]

2 Burbank v. McDuffee, 65 Me. 135; Ex parte Robinson, 12 Nev. 263, [28 Am. R. 794;] Speer v. Com., 23 Grat. 935, [14 Am. R. 164;] Com. v. Smith, 6 Bush, 303; Mork v. Com., 6 Bush, 397; [White v. Com., 78 Va. 484; S. v. Moorhead, 42 S. C. 211, 20 S. E. R. 544, 46 Am. St. R. 719, 26 L. R. A. 585.] 3 Com. v. Jones, 7 Bush, 502; Com. v. Farnum, 114 Mass. 267. But see Morrill v. S., 38 Wis. 428, [20 Am. R. 12; Kimmel v. City of Americus, 105 Ga. 694, 31 S. E. R. 623; Wrought Iron Range Co. v. Johnson, 84 Ga.

754, 11 S. E. R. 233, 8 L. R. A. 273; S. v. Gibbs, 115 N. C. 700, 20 S. E. R 172; S. v. Lee, 113 N. C. 681, 18 S. E. R. 713, 37 Am. St. R. 649; Ballou v. S., 87 Ala. 144, 6 S. R. 393; Randolph v. Yellowstone Kit, 83 Ala. 471, 3 S. R. 706; Pegues v. Ray, 50 La. An. 574, 23 S. R. 904; City of Olney v. Todd, 47 Ill. Ap. 439; Village of Cerro Gordo v. Rawlings, 135 Ill. 36, 25 N. E. R. 1006; S. v. Hoffman, 50 Mo. Ap. 585; S. v. Smithson, 106 Mo. 149, 17 S. W. R. 221; Kennedy v. P., 9 Colo. Ap. 490, 49 Pac. R. 373; City of Davenport v. Rice, 75 Iowa, 74, 39 N. W. R. 191, 9 Am. St. R. 454; Standard Oil Co. v. Com. (Ky.), 55 S. W. R. 8.]

Ante, § 1072; [Hewson v. Inhabitants of Englewood, 55 N. J. L. 522, 27 Atl. R. 904, 21 L. R. A. 736; Alexander v. Greenville County, 49 S. C. 527, 27 S. E. R. 469; Com. v. Eichenburg, 140 Pa. St. 158, 21 Atl. R. 258; Village of Stamford v. Fisher, 140 N. Y. 187, 35 N. E. R. 500; McClel land v. City of Marietta (Ga.), 22 S. E. R. 329.]

5 Fisher v. Patterson, 13 Pa. St. 336, 338; Com. v. Cusick, 120 Mass. 183; [Duncan v. S., 105 Ga. 457, 30 S. E. R. 755.]

that he sells them by auction, prevents - it was held under 50 Geo. 3, ch. 41, § 6—his being a hawker or peddler.1 So likewise

Through local auctioneers.- An itinerant vendor of goods is no less a peddler though he makes his sales through auctioneers residing in the several places he visits.2

§ 1079. Local questions.- Some questions have arisen, so local to particular states, that a special consideration of them here is not desirable.3

§ 1080. Constitutional restrictions. In general, the legislation discussed in this chapter is not violative of our state constitutions or of the constitution of the United States. But

the latter furnishes some restrictions; and some things, once deemed by the state courts permissible under it, have been adjudged by the supreme court of the United States, the tribunal of the last resort, not to be. Like the statutes restraining liquor-selling,' these upon peddling cannot be made to interfere with the vending of imports in the original packages, or with any other rights under the constitution and laws of the United States. Nor, though congress has not exercised its constitutional power to regulate commerce between the states, can they fetter it. Therefore they cannot discriminate against goods which are the growth, product or manufacture of other states,―or, probably, imported goods whereon duties have been paid, by requiring a license to peddle or otherwise vend them, while none, or one at a less price, is exacted for selling in the same way what is grown or made in the state. In Louisiana a statute required a license tax of "all traveling agents from other states, offering any species of merchandise for sale or selling the same," not including therein the people of the state; and this was by the state court held to violate the provision of the constitution of the United States," that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Apparently more or less in contradiction of this are various adjudications in other states. But, if we should assume the Louisiana court to be wrong in attributing this consequence to this particular provision while thus standing alone, we might still inquire whether it does not result from it and the clause of the fourteenth amendment combined, that "no state shall make or enforce

Mich. 576, 49 N. W. R. 633; Borough of Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. R. 76, 33 Am. St. R. 842, 16 L. R. A. 49; Borough of Shamokin v. Flannigan, 156 Pa. St. 43, 26 Atl. R. 780.]

1 Ante, § 990.

2 P. v. Moring, 47 Barb. 642; Cook v. Pennsylvania, 97 U. S. 566. See Woodruff v. Parham, 8 Wall. 123. 3 S. v. Butler, 3 Lea, 222.

4 Welton v. S., 91 U. S. 275 (revers ing S. v. Welton, 55 Mo. 288); Hall v. De Cuir, 95 U. S. 485, 490; Webber v.

Virginia, 103 U. S. 344; Mobile v. Kimball, 102 U. S. 691; Tiernan v. Rinker, 102 U. S. 123; S. v. McGinnis, 37 Ark. 362; S. v. Browning, 62 Mo. 591; Van Buren v. Downing, 41 Wis. 122. And see ante, § 990b; Guy v. Baltimore, 100 U. S. 434. [See also Village of Braceville v. Doherty, 30 Ill. Ap. 645.] 5 Const. U. S., art. 4, § 2.

6 McGuire v. Parker, 32 La. An. 832. 7 Davis v. Dashiel, Phillips (N. C.), 114; Mork v. Com., 6 Bush, 397; Ward v. S., 31 Md. 279, [1 Am. R. 50;] Com. v. Smith, 6 Bush, 303.

any law which shall abridge the privileges or immunities of citizens of the United States." To burden a "citizen of the United States" with a tax not imposed on the citizens of the state would seem, in reason, to abridge his "privileges" and "immunities."'1

II. THE PROCEDURE.

§ 1081. Indictment.- The terms of our statutes against hawking and peddling so vary as to render difficult the laying down of rules for the indictment, beyond the general ones which govern all indictments on statutes. A few questions, hitherto considered, are

§ 1082. As hawker and peddler.- Under a statute making it an offense for a peddler, etc., to go about without license "exposing to sale any goods," an allegation that, at a time and place mentioned, the defendant was a peddler, etc., and then and there went about exposing to sale goods, etc., and then and there sold a specified article, was held to be inadequate, because not charging that he sold the article as, or while going about as, such peddler. Now,

§ 1083. In reason,- this decision is wrong; because the statute did not make a selling an element in the offense, so that the allegation of it was mere surplusage; and because, if it did, to say that the defendant was a peddler and sold was to charge him with selling as peddler. Again,

§ 1084. How specific as to act of sale.- Under a statute the terms whereof do not appear in the report, but it contained the word "business," an indictment was sustained which charged that, at a time and place named, the defendant "was engaged in the business of hawking and peddling, and, being so engaged, he then and there pursued the business of hawking and peddling in one wagon," etc.; not further particularizing the peddling,

And compare with Guy v. Baltimore, 100 U. S. 434; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; San Mateo v. Southern Pacific R. R. Co. (Railroad Tax Cases), Sept. 25, 1882, by Judges Field and Sawyer, 13 Fed. R. 722; [S. v. Wagener, 69 Minn.

206, 72 N. W. R. 67, 65 Am. St. R. 565, 38 L. R. A. 677. But see S. v. Conlon, 65 Conn. 478, 33 Atl. R. 519, 48 Am. St. R. 227, 31 L. R. A. 55.]

2 Crim. Pro., I, §§ 593-642.

3 Com. v. Bruckheimer, 14 Gray, 29; [Hays v. Com. (Ky.), 55 S. W. R. 425.]

or specifying any sale. Said Goldthwaite, J.: "The term 'business,' as employed in the statute, being continuous in its character, not necessarily implying a single act or any number of acts, forms an exception to the general rule, and falls within the principle applicable to barratry and some other offenses, that, where the charge is of a complicated nature, consisting of a repetition of acts, or where the offense includes a continuation of acts, it is unnecessary to set them out in the indictment." 1 For this doctrine there are analogies in the rulings respecting the form of the indictment for being an unlicensed common seller of intoxicating liquors. But,

§ 1085. Inadequate.- Under another statute it was adjudged insufficient to say that, at a specified time and place, the defendant "did sell and expose to sale divers goods, wares and merchandise," he "then and there being a peddler, and not having obtained a lawful license for that purpose." An accused person "should," said the court, "be so definitely charged that he may know how to shape his defense." Here, it is perceived, individual sales, in distinction from a business, are the gravamen of the accusation, and they are not specifically set out. Again,

§ 1086. Averment of business.- Under a statute not given in the report, it was held inadequate to charge, says the reporter, that the defendant, "not having any license or authority to vend clocks within the county of Wayne, did, in that county, unlawfully sell and vend to a certain person three brass clocks, for the sum of $20 each, whereby the revenue of the county was diminished and defrauded." The court deemed that the offense consisted, not in making a single unlicensed sale, but in being employed in the selling, and this was not charged.'

§ 1087. On the whole,- while these illustrations will be helpful, the main reliance of the pleader, under statutes so diverse as those on the present subject, will be upon the general principles of the art.

1 Sterne v. S., 20 Ala. 43.

2 Com. v. Pray, 13 Pick. 359. 3 S. v. Powell, 10 Rich. 373, 374; [Keller v. S. (Ala.), 26 S. W. R. 323.]

4 Alcott v. S., 8 Blackf. 6; [S. v. Foster (R. L.), 43 Atl. R. 66; Com. v. Heckinger (Ky.), 42 S. W. R. 101.]