Wrought Iron Range Co. v. Johnson , 8 L.R.A. 273 ( 1890 )

Bleckley, Chief Justice.

The facts are sufficiently stated in the official report.

1. The provisions of the code under which the ordinary proceeded furnish no warrant or authority for issuing an execution against the owner of goods because they are peddled or sold by sample through an itinerant agent. This question was virtually ruled in Howard, v. Reid, 51 Ga. 328. In that ease it was held that the person to whom the license to peddle is to be granted is he who travels and vends the goods, and that a process issued under section 536 of the code against others on the ground that they, by their agent, peddled, etc. without a license, is upon its face illegal and void. That ease governs this in so far as the non-resident corporation is concerned. A corporation cannot be a peddler, or obtain license to peddle, under the laws of this.State. No one can obtain such license who cannot be sworn, for every peddler has to take an oath. Code, §1634. Every itinerant trader by sample is treated as a peddler. Code, §1631. The itinerant trader is the person who actually travels or passes from place to place for the purpose of trading by sample or otherwise. Within the sense and meaning of the code, when one adopts that vocation and pursues it, he becomes a peddler, and by that name or description is to be licensed. Gould v. Atlanta, 55 Ga. 686. The execution issued in the present case alleges peddling and selling as peddlers without first obtaining license to peddle,and without paying the charges fixed by section 529 of the code, which section prescribes a charge of fifty dollars for a license to peddle. The execution is for the collection of one hundred dollars as a forfeiture, and the law declaring the forfeiture is found in section 533 of the code, under which section the person who incurs it is one who “peddles” without first obtaining a license to do so.

Erom what we have said, it follows conclusively that this execution could not rightfully be enforced against the Wrought Iron Range Company. Indeed, as to that corporation it was, and is, an utter nullity.

2. The next question relates to the validity of the execution as against Lee, the person who actually itinerated and exhibited a sample stove for the purpose of obtaining orders in behalf of the corporation for stoves manufactured in the State of Missouri, and to be forwarded from thence to this State in filling orders so obtained. Lee is a citizen and resident of Yirginia, and plies his vocation in Georgia to obtain orders for goods manufactured in Missouri, and not brought within this State until after ordered through him by purchasers or those desiring to purchase. As he carries his sample stove from place to place upon a wagon drawn by mules, aud exhibits the same as a means of trading or inducing offers to trade, he is doubtless a peddler within the true sense and meaning of the code. Section 1631 reads as follows: “Every peddler or itinerant trader, by sample or otherwise, must apply to the ordinary of each county where he may desire to trade, for a license, which- shall be granted to him on the terms said ordinary has or may impose. They are authorized to impose such tax as they may deem advisable, to be used for county purposes. The license extends only to the limits of the county.” Section 1635 requires a license for every wagon or other vehicle employed or used in vending such goods, wares or merchandise. Section 533 is as follows: “If any person, except a disabled soldier of this State, peddles without first obtaining such license in counties where the ordinaries take no action regulating peddling he forfeits to the county one hundred dollars for the first act of peddling, and for each month thereafter twenty-five dollars more.” We should consider these provisions decisive of the case as to Lee, could they be held constitutional in their application to him and the business in which he is engaged. But this cannot be held consistently with the decisions of the Supreme Court of the United States in Robbins v. Shelby Co. Taxing Dist., 120 U. S. 489, and Asher v. Texas, 128 U. S. 129. These cases rule that statutes of Tennessee and Texas, not more obnoxious than our own to the interstate commerce clause of the constitution of the United States, are void for their conflict with that constitution in so far as they extend to soliciting orders and making sales by and for nonresidents of the State within which the business required to be licensed is transacted. After full examination, we can have no doubt that these decisions apply to the present case and control it. This being so, the matter admits of no further discussion at our hands. After the State has yielded to the federal army, it can very well afford to yield to the federal judiciary. Our sister States, Alabama and Louisiana, have so done. State v. Agee, 83 Ala. 110; Simmons Hardware Co. v. McGuire, 39 La. An. 848. The doctrine of coequality and coordination between the Supreme Court of Georgia and the Supreme Court of the United States, so vigorously announced by Benning, J., in Padelford v. Savannah, 14 Ga. 439, regarded now from a practical standpoint, seems visionary. Its application to this, or any like case, would be a jarring discord in the harmony of law. Moreover, any attempt to apply it effectively would be no less vain than discordant. When we know with certainty that a question arising under the constitution of the United States has been definitely decided by the Supreme Court of that government, it is our duty to accept the decision, for the time being, as correct, whether it coincides with our own opinion or not. Any failure of due subordination on our part would be a breach, rather than the administration, of law.

The judge of the superior court erred in not granting the injunction prayed for. Judgment reversed.