Needham v. State , 51 Tex. Crim. 248 ( 1907 )

I concur with my brethren in reversing the judgment on the motion for rehearing, but adhere to the former opinion in the case holding that appellant, under the facts, is not within the purview of article 5049 of the Revised Statutes, subdivision 3 of said article. That subdivision in full is as follows: "Peddlers of Patent Medicines: From every traveling person selling patent or other medicines, one hundred dollars; and no traveling person shall so sell until said tax is paid: Provided, that this tax shall not apply to commercial travelers, drummers, or salesmen making sales, or soliciting trade for merchants engaged in the sale of drugs, or medicines by the wholesale," and an inspection of said subdivision 3 shows that it was intended to tax peddlers of patent or other medicines and to prohibit them from selling until the tax was paid. From its provisions, however, were exempted commercial travelers, drummers, and salesmen making sales or soliciting trade for merchants engaged in the sale of drugs or medicines by the wholesale. It makes no distinction in regard to salesmen making sales as to amount or quantity; it exempts him absolutely from the provisions of the law if he is making sales for a wholesale merchant, or if he is soliciting trade for said merchant. If a party should solicit a small order from a customer and the order is filled, there would be no question that the salesman or the solicitor would be exempt, but my brethren hold that, in order to exempt him, he must be making sales by the wholesale. It will be hardly questioned, in my judgment, under the term "salesmen making sales" a party is meant or included who sells and delivers the goods at the time of the contract; in other words, that he carries the goods with him, makes the sale and delivers them. If the construction is right, as insisted by my brethren, that it would be necessary for him to sell by the wholesale, then he would have to carry goods in wholesale quantities with him about the country in making sales and delivering the goods. Such was clearly not the intention of the Legislature. This act applies only to peddlers, and this only, as I understand it, means parties sent out by wholesale merchants with the goods to be sold and delivered by the salesman making the sales. I adhere to the former opinion, and think it is correct, and in support of this proposition cite Potts v. State, 45 Tex.Crim. Rep.; Saulsbury v. State,43 Tex. Crim. 90; Emmons v. Lewistown, 22 Am. St. Rep., 540, and Emert v. Missouri, 156 U.S. 296. In construing a statute, it must be taken into consideration the object and purpose of the statute as shown by its wording, and it is clearly the purpose of the Legislature in enacting this statute to exempt all "salesmen making sales" for wholesale drug houses, and this, of course, contemplates that the parties will carry the goods with them when the language, context and purpose of the statute is taken into consideration. It was hardly the purpose, or intended by the Legislature, to make a "salesman making sales" a wholesale salesman carrying goods in wholesale quantities about the country with him for contract and delivery. I agree to the conclusion reached on the two propositions discussed by my brethren in the opinion granting the rehearing, but believe the original opinion is also correct, and I file this as my dissent from their construction of the statute in holding that the former opinion was not correct.