Union Metallic Cartridge Co. v. Teague, Barnett & Co. , 83 Ala. 475 ( 1887 )

SOMERVILLE, J.

The question presented bythe agreed statement of facts, and the rulings of the City Court made upon them, involves the construction of sub-division 17 of section 5 of the Eevenue Law, as amended by the act of December 11, 1886. — Acts 1886-87, p. 36.

This law imposes a license of three hundred dollars on “dealers in pistols, or pistol cartridges, or bowie-knives, or dirk knives, whether [ constituting their] principal stock in trade or not.” The inquiry raised is, what was intended to come within the designation of “pistol cartridges.” The liability of the defendants is admitted to depend on this inquiry; for their contract was to buy so much of the bill of goods, consisting of rifle and pistol cartridges, as they could lawfully sell and dispose of without a special license therefor as a dealer in pistol cartridges, under this provision of the revenue law.

The thing to be ascertained is the intention of the lawmaker, this being tbe only proper function of judicial construction. To tbis end, it is permissible to consider tbe scope and object of tbe law, and tbe mischief to be remedied, if any. Tbe license exacted is not for tbe sole purpose of revenue. It embraces witbin its object tbe idea, also, of a police regulation. It has long been tbe policy of our statutes to discourage tbe carrying of deadly weapons concealed about tbe person, and to visit tbis barbarous practice witb severe penalties. Tbe amount of tbe license imposed by tbis law will naturally tend to diminish tbe number of dealers in pistols and pistol cartridges, as well as in tbe other weapons mentioned, and, by lessening competition, will increase tbe price, and thereby impede tbe facility witb which these articles can be purchased. Tbis was the legislative intent, and it harmonizes witb tbe general policy prohibitory of tbe abuse of tbe habit of secretly carrying and recklessly using such weapons, especially pistols.

By “pistol cartridges,” therefore, we think tbe General Assembly meant, not merely such cartridges as are, or may hereafter be called pistol cartridges, but pistol cartridges in fact — such as are adapted to, and are or may be used, for pistols of tbe size and calibre in ordinary use — including especially those capable of being carried about tbe person. Tbe name of tbe thing may be but a mere device, and amount to but little, as dealers have tbe power to name their own articles of traffic, and would be tempted to affix a spurious nomenclature in order to elude tbe law. — Ryall's case, 78 Ala. 410. The true criterion is tbe nature, the adaptability, and practical use of tbe article. Tbe fact is significant, that dealers in rifle cartridges are not mentioned in tbe statute. Yet it is manifest that a pistol may be manufactured of sufficient size and calibre to cary a rifle cartridge. Should tbe habit of carrying or using such pistol hereafter prevail, it may be that they would fall within tbe evil intended to be regulated, and would' thus be brought witbin both tbe letter and spirit of tbe law. They might, from tbe use actually made of them, become pistol cartridges, just as a table might become a gaming-table from its use and adaptability for that purpose.— Wren's case, 70 Ala. 1. But common knowledge suggests that, until some such change of circumstances ensues, dealers in cartridges used for rifles, and not used or capable of being used for pistols of tbe size now manufactured and in use, do not require a license. This construction practically meets tbe evil intended to be remedied.

It follows from these views: (1) That the defendants were not liable for the “ pistol cartridges,” which are shown to be used only in pistols of the size now manufactured, because they were liable to pay a license for dealing in these; (2) and for a like reason, they were not liable for the “rifle and pistol cartridges,” which are shown to be used, and adapted to use for pistols, as well as rifles, of the calibre now manufactured; (3) they were liable, however, for the “rifle cartridges,” which are shown to be used at present only for rifles, although capable of use in pistols of a larger size than those now made by manufacturers of such firearms. For dealers in such rifle cartridges, the statute requires no license.

The court erred in giving the general affirmative charge for the defendant; and the judgment must be reversed, and the cause remanded.