The warrant describes two offenses:
"1. That the defendants did, as itinerant salesmen, expose for sale either on the street or in houses rented temporarily for that purpose, goods, wares and merchandise, to wit, certain stoves, contrary to the statute, etc., without a license.
"2. Unlawfully and wilfully did peddle goods, wares and merchandise, to wit, certain stoves, with two mules and a vehicle, the said Gibbs and The Wrought-Iron Range Company not then and there having a license so to sell and peddle said goods, etc., contrary to the statute," etc.
It is admitted by the Attorney-General, on the authority of S. v.Lee, 113 N.C. 681, that the defendants were not peddlers, and, therefore, would not be liable for the license tax imposed upon peddlers of clocks, stoves and ranges under section 28, chapter 294 (the Revenue Act), Laws 1893. But it is contended that the defendants are liable under section 23 of said act as "itinerant salesmen." This section, after imposing a license tax upon peddlers, proceeds: "Every itinerant salesman who shall expose for sale either on the street or in houses rented temporarily for that purpose, goods, wares or merchandise, (703) shall pay a tax," etc.
The special verdict finds that defendant Gibbs, in the employment of the defendant company, with a wagon and team and a sample range, exhibited his sample to one Thomas in said county, and solicited his order for a range similar to said sample, to be delivered in thirty days. It is not found that this exhibition was made either in the street or in a house rented temporarily for the purpose of exposing to sale goods, wares and merchandise. It fails to find — indeed, it finds to the contrary *Page 488 — that any goods were exposed to sale by defendant. The statute was evidently intended to reach that class of salesmen who, while not strictly peddlers, carry their goods and sell from place to place, are engaged in a business of a transient nature, carried on in booths or stands upon the streets of cities and towns, in houses occupied for this temporary purpose. As the defendants were not liable, either under section 23 or 28 of the Revenue Act, for the payment of a license tax, no Federal question arises upon the right of the State to impose a license tax for doing such business as was found by the special verdict to have been done in this instance.
We hold that, according to the facts found in the special verdict, the defendants are not guilty. There is error.
Judgment reversed.
Cited: Range Co. v. Carver, 118 N.C. 333; S. v. Frank, 130 N.C. 725;S. v. Ninestein, 132 N.C. 1042.
(704)