hawkers and peddlers and pedlars and hart and statutory drafting

As I mentioned in the previous essay, the PA legislature, by acts of 1830 and 1840, required itinerant hawkers and peddlers to have a license if they sold in PA. The PA Supreme Court in 1850 applied this definition to an operator of a canal-boat who sold Chinese tea and other goods. But an 1869 case forced the court to return to the statute and its evolution from 1830 to 1840. This essay considers that case, Hart v. Willetts, 62 Pa 15 (1869)

The Facts and the Decision

At issue in Hart was whether a New York itinerant merchant who sold candy in PA was required under the hawkers and peddlers statute to obtain a license in order to sell in PA. We recall that the 1840 iteration of the statute, quoted in the previous essay, prohibited hawkers or peddlers selling foreign goods from selling within PA without a license. What we learn for the first time in this case is that the 1830 statute prohibited selling foreign or domestic goods itinerantly without a license. The 1830 statute also had an exception for PA residents peddling goods of their own manufacture; i.e., they could be "hawkers" or "peddlers" without a license as long as they sold goods made in PA. The statutory evolution is important, because the court was called upon to construe the meaning of foreign in the 1840 act. It is here that Friedman, in his excellent history of Salesmanship, gets it wrong.

The PA Supreme Court gives us a window into the slapdash nature of legislating or, at least, the printing of laws, when it tells us the following. The 1830 statute embraced both foreign and domestic goods, with exceptions for PA citizens peddling goods of their own manufacture. However, the Act of 16th April 1840, sec. 2, "dropped the word 'domestic' through the inadvertence of the penman or the omission of the transcriber." That is, the court is telling us that the 1840 statute should have contained the foreign and domestic terms, though the word "domestic" dropped out. How does the court know this? Because the permission for PA citizens to sell as peddlers or hawkers would make no sense if only foreign goods were at issue. That is, if the statute was only meant to require people who sold in foreign goods to become licensed, with an exception for Pennsylvanians who manufactured their own goods, there would have been no need for the exception clause (unless, of course, "foreign" meant "non-Pennsylvanian"...which I deal with below.)

Thus, the court concluded that there was a problem with the statute. I was led to think, then, that the court would then have said that the statute should be interpreted according to its intended meaning, i.e., with the word "domestic" reinserted, but the court didn't go this direction. It construed the statute with the actual words in the transcription of the statute before them. The result?

"We are, therefore, compelled to say, that the learned judge below was right in holding the defendant not to be within the penalty; the candy he peddled, though made in New York, not being foreign goods within the meaning of the statute."

Friedman's parenthetical point on p. 27 of his work stated that "foreign" meant from another state, but the PA Supreme Court goes on to say:

"The many acts on the subject of hawking and peddling are in pari materia, and serve to interpret the word 'foreign' in the Act of 1840. Being used correlatively with 'domestic,' it is very evident the word 'foreign' does not include goods made in the United States, but refers to those of a foreign country. Such we know is the common meaning of the term in its application to goods, and we must suppose that the legislature, in the Act of 1840, used that word in its ordinary acceptation, especially as it has been so often written in acts on the same subject in contradistinction to domestic goods."

Conclusion

So here the PA Supreme Court decided to take the "ordinary acceptation" of the word "foreign" in its decision, whereas in the 1850 case discussed in the previous essay, it ignored the common meaning of the terms 'hawkers' and 'peddlers' in favor of the meaning it gleaned from a legal dictionary. Law prides itself on being predictable. As one can see, the method of the PA Supreme Court is anything but predictable. But, we know, if we really wanted to know, that by 1870 a canal-boat operator is a peddler or hawker within the meaning of the statute, and an itinerant peddler from New York does not have to be licensed to sell in the state. Surely the legislature did make a mistake in dropping out the word "domestic" in the 1840 revision, for a literal reading of the statute after 1840 would have made only those peddlers who sold goods of foreign manufacture to be liable for the license tax--certainly not what PA had in mind when it first passed the law in 1830. But, in any case, the canal-boat of the Hart case would still be subject to a license fee because some of its goods were Chinese tea (hyson, for example). Thus, the canal-boat still would "lose.

I don't know if, as a result of this 1869 decision of the PA Supreme Court that the legislature quickly changed the law by reinserting the word "domestic" again. In any case Friedman cited this case inaccurately, and there would have been no reason for anyone really to "check out" his citation. Except that I did. And, by checking it out, I was plunged into the murky world of statutory drafting, construal of statutes and the meaning of hawkers, peddlers and petty chapmen. I am glad that I went on my journey. Now, if I can only get through an essay about lightning rod salesmen in the 19th century, I can get back to Friedman.

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