§ 1088. Negativing.- The indictment must negative that there was a license.1

Other points, not of much general interest, appear in the cases cited in the note.2

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CHAPTER LX.

FURTHER OF UNLICENSED BUSINESS.

§ 1089. Introduction.

1090-1092. Dealing as merchant.

1093-1097. In violation of public order.

1098. In breach of revenue laws.

§ 1089. Already,- in the last five chapters, and in those on gaming and lotteries, the leading principles relating to unlicensed business have been brought to view. Still,

Here.-There being other occupations the conducting whereof without a license is by statutes made punishable, we shall in this chapter call to mind some of them, cite the principal cases, and add such explanations as seem desirable.

Classification (Order of society — Revenue).- No attempt at precision in the classification of these statutes will be made. For mere convenience we shall distinguish between those the principal object whereof is the good order of society, and those whose chief aim is revenue. But the double motive- neither alone has prompted the enactment of many of them; so that this division is unscientific and largely arbitrary. For convenience, then,

How chapter divided.- We shall consider, I. Dealing as a merchant without license; II. Unlicensed business violative of public order; III. Unlicensed business in breach of the revenue laws.

I. DEALING AS A MERCHANT WITHOUT LICENSE.

§ 1090. Statute("Deal"-"Merchant"-"Merchandise"). A statute in Missouri, and in one or more of the other states, makes punishable any person who, individually or as a partner, "shall deal as a merchant without a license." And the Missouri statute defines a merchant to be one "who shall deal in the selling of goods, wares and merchandise, at any store, stand or place occupied for that purpose." A single sale

does not constitute a dealing. Nor is one who, by manufacture from goods which he keeps on hand, yet not for sale, supplies articles to order, a merchant." The term "merchandise" includes as well animals trafficked in as inanimate property.3

Indictment. The indictment must charge a dealing as merchant; merely to set out individual sales is not enough. Yet the exact word "deal," though it ought to be employed, may in some circumstances be dispensed with where equivalents are used.1

5

§ 1091. Specific sales and to whom.- Where the dealing is adequately charged in general terms, it would seem, on principle, not to be necessary to allege also specific sales. Yet, in cases before the writer, something like this has been added to the general allegation; and under the Maryland statute the names of the persons to whom the sales are made, it is held, must be given.'

6

§ 1092. Goods changed by labor.- It was in Michigan adjudged immaterial that the defendant had changed the goods in form by expending labor upon them.

Other points-appear in cases cited in the note.9

II. UNLICENSED BUSINESS VIOLATIVE OF PUBLIC ORDER.

§ 1093. Constitutional-(At common law).-In the absence of statutory restraints, any person is entitled to carry on any manufacture, business, trade or domestic or foreign commerce if he does not infringe the rights of another or commit a public

18. v. Cox, 32 Mo. 566. And see Porter v. S., 58 Ala. 66; ante, § 1016; [Graham v. S., 71 Miss. 208, 13 S. R. 883; S. v. Barnes (N. C.), 35 S. E. R. 60; Standford v. S., 16 Tex. Ap. 331; City of Kansas v. Vindquest, 36 Mo. Ap. 584: Ex parte Mount, 66 Cal. 448, 6 Pac. R. 78; Campbell v. City of Anthony, 40 Kan. 652, 20 Pac. R. 492; Com. v. Teller, 144 Pa. St. 545, 22 Atl. R. 922; Com. v. American Tobacco Co., 173 Pa. St. 586, 34 Atl. R. 282.]

2S. v. Richeson, 45 Mo. 575. [But see Murray v. S., 11 Lea, 218; Com. v. Thos. Potter Sons & Co., 159 Pa. St. 583, 28 Atl. R. 492.]

3 Weston v. McDowell, 20 Mich. 353; U. S. v. One Sorrel Horse, 22 Vt. 655; [City of Pittsburgh v. Kalchthater, 114 Pa. St. 547, 7 Atl. R. 221.]

4S. v. Cox, supra; S. v. Jacobs, 38 Mo. 379; S. v. Willis, 37 Mo. 192. 5 Ante, § 1084.

6 S. v. Jacobs, 38 Mo. 379; S. v. Willis, 37 Mo. 192; S. v. Cox, 32 Mo. 566. 7 Spielman v. S., 27 Md. 520.

8 S. v. Whittaker, 33 Mo. 457.

9 S. v. Hunter, 5 Mo. 360; S. v. Mar tin, 5 Mo. 361; Tracy v. S., 3 Mo. 1; Williamson v. S., 16 Ala. 431; [Thibaut v. Dymond, 37 La. An. 902.]

nuisance. But within principles already explained, regulations such as we are now considering are constitutionally competent to our legislatures. And

Municipal by-laws - may and do more or less regulate things of this sort. Among the subjects for statutes and by-laws, within our present sub-title, are —

§ 1094. Auctioneers. It is common, for the protection of the community against frauds, as well as for revenue, to require auctioneers to act under license and not otherwise." One who sells by auction his own goods is an auctioneer equally with one who after the common course thus sells the goods of others. The essential principle of an auction consists of the endeavor to get an enhanced price for a thing through competition among buyers. It is not an auction where no one but the auctioneer is present. Nor is it such where the seller adheres to a fixed price, though he employs outcry otherwise after the manner of an auctioneer.9

1 East India Co. v. Sandys, Skin. 132, 133; Custom's Case, 12 Co. 33; Merchant Adventurer's Co. v. Rebow, 3 Mod. 126; Rex v. Kilderby, 1 Saund. 311, and the notes.

2 Ante, §§ 989–996, 1080.

3 Walters v. Duke, 31 La. An. 668; Shepperd v. Sumter, 59 Ga. 535. And see Sawyer v. State Board of Health, 125 Mass. 182; [Van Hook v. Selma, 70 Ala. 361, 45 Am. R. 85; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. R. 288, 47 Am. R. 486; S. v. Wagener (Minn.), 80 N. W. R. 633, 46 L. R. A. 442; F. S. Royston Guano Co. v. Town of Tarboro (N. C.), 35 S. E. R. 231; Singer Mfg. Co. v. Wright, 97 Ga. 114, 25 S. E. R. 249, 35 L. R. A. 497; Hanfield v. City of Columbus (Ga.), 34 S. E. R. 288; City of St. Louis v. McCann (Mo.), 57 S. W. R. 1016; S. v. Camp Sing, 18 Mont. 128, 44 Pac. R. 516, 56 Am. St. R. 551, 32 L. R. A. 635.] Ante, §§ 18-26; Downham v. Alexandria, 10 Wall. 173; Goshen v. Kern, 63 Ind. 468, [30 Am. R. 234;] Deposit v. Pitts, 18 Hun, 475; American Union Express v. St. Joseph, 66 Mo. 675, [27 Am. R. 382;] Chicago Pack

But he is an auctioneer

ing, etc. Co. v. Chicago, 88 Ill. 221, [30 Am. R. 545;] Thomas v. Hot Springs, 34 Ark. 553, [36 Am. R. 24;] Burlington v. Bumgartner, 42 Iowa, 673; [Town of Mandeville v. Baudot, 49 La. An. 236, 21 S. R. 258.]

5 St. Louis Church v. Bonneval, 13 La. An. 321; Stone v. S., 12 Mo. 400; Com. v. Harnden, 19 Pick. 482; Clark v. Cushman, 5 Mass. 505; Hunt v. Philadelphia, 35 Pa. St. 277; S. v. Rucker, 24 Mo. 557; S. v. Conkling, 19 Cal. 501; Georgetown v. Baker, 2 Cranch, C. C. 291; Davis v. Com., 3 Watts, 297; Fretwell v. Troy, 18 Kan. 271; Daly v. Com., 75 Pa. St. 331; [City Hospital v. Girardey, 36 La. An. 605; City of Mankato v. Fowler, 32 Minn. 364, 20 N. E. R. 361.]

6 Goshen v. Kern, 63 Ind. 468, [30 Am. R. 234; S. v. Withers, 3 Ohio St. (N. P.) 63.]

7 Crandall v. S., 28 Ohio St. 479; [Village of Port Jervis v. Close, 6 N. Y. S. 211.]

8 Campbell v. Swan, 48 Barb, 109,

113.

9 Crandall v. S., supra.

who, contrary to custom, offers goods at a price which he lowers till he finds a purchaser.1

§ 1095. Practicing medicine.- We have statutes, in varying terms, forbidding any one to practice medicine except under a license.2

§ 1096. Places of amusement- are pretty generally forbidden to be opened except on license.'

§ 1097. Other business,-of various sorts, is in like manner regulated; but nothing further on this head seems to be required, except a simple reference to cases.*

III. UNLICENSED BUSINESS IN BREACH OF THE REVENUE Laws.

§ 1098. In general.- Statutes of the sort now in contemplation are a competent method of taxation sometimes resorted to. They are construed and enforced like the others; and, beyond some reference to cases, nothing more need be said of