Messrs. G. M. Valentine and G. W. Bridgman for plaintiff in error.[ Stewart v. People of State of Michigan 232 U.S. 665 (1914) ]
[232 U.S. 665, 667] Mr. Grant Fellows, Attorney General of Michigan, for defendant in error.
Mr. Chief Justice White delivered the opinion of the court:
Plaintiff in error was tried and convicted in a justice court upon a criminal information which charged that 'one David J. Stewart did travel from place to place within the county of Berrien, state of Michigan, for the purpose of taking orders for the purchase of goods, ware, and merchandise, by sample, lists, and catalogues, without having then and there obtained a license as a hawker and peddler, as required and provided by chapter 136 of the Compiled Laws of Michigan of 1897, as amended.' From that judgment an appeal was taken to the county court where the cause was tried de novo by a jury, resulting again in a conviction, and that judgment was affirmed by the supreme court of the state (167 Mich. 417, 132 N. W. 1071). This writ of error was then prosecuted.
There are several assignments of error of a Federal nature, but the consideration of one-the asserted repugnancy of the statute upon which the warrant was based to the commerce clause of the Constitution of the United States-will enable us to dispose of the case. The statute provides:
Violation of the statute was made a misdemeanor punishable by fine or imprisonment.
Briefly stated, the material facts, which are uncontro- [232 U.S. 665, 668] verted, are as follows: The defendant resided in the city of Chicago, where he was engaged in the general merchandise business, but much of his time was spent in the state of Michigan, soliciting orders for groceries and other merchandise to be shipped from his Chicago store. Duplicates of the orders secured were mailed by him to his manager in Chicago, and goods corresponding to the orders were shipped in carload lots from the Chicago store, consigned to the defendant at St. Joseph and other points in Berrien county, Michigan. Upon the arrival of the cars at St. Joseph the goods were delivered to the customers by draymen employed by the defendant, who filled the orders at the car by checking from the original orders, there being no identifying marks on the packages, except as to their contents. Customers living at a distance received notice by mail of the arrival of the cars, and called or sent for their goods. If for any reason any orders were undelivered, the goods corresponding to such orders were returned to the Chicago store, or placed in a storeroom which the defendant hired in Benton Harbor, Michigan, and there is some evidence tending to show that occasional sales were made by the defendant from the storeroom and from the car without previous solicitation.
Upon the above facts the trial court charged the jury as follows:
... * *
And the correctness of the charge thus given was in terms sustained by the supreme court of the state in its opinion.
The charge as thus given and affirmed is clearly in conflict with the rule announced in Crenshaw v. Arkansas, 227 U.S. 389 , 57 L. ed. 565, 33 Sup. Ct. Rep. 294, and the cases there reviewed. Indeed, [232 U.S. 665, 670] reference to authority is unnecessary, since it was admitted in the argument at bar that the judgment below, in so far as it affirmed the action of the trial court in holding that there could be a conviction because of the deliveries of merchandise from the cars to fill orders previously solicited and obtained, was erroneous because in conflict with the commerce clause of the Constitution. But it is said although there was manifestly reversible error from this point of view, nevertheless, as from another point of view there was a ground adequate to sustain the judgment, there should be an affirmance. The court below, it is said, not only placed its affirmance upon the erroneous ruling as to the sales made under orders, but also upon the ground that there was evidence showing some sales made from the car or storeroom not under previous orders, and as the latter sales were not within the shelter of the commerce clause, therefore the affirmance on that ground was an independent non-Federal conclusion sustaining the action of the court and calling for the duty of affirmance. But this proposition disregards the fact that the only charge made against the accused was for peddling, and that the instructions of the court and the whole course of the trial conclusively established that the sales made from the car, as the result of the orders solicited, formed the sole basis for the prosecution, and the conviction therefore related to that, and to that alone. If, then, it be admitted that the judgment below was placed upon two grounds, such admission would not establish that the judgment rested upon an independent state ground adequate to sustain it, since the first ground, it is admitted, was Federal and erroneous, and the second ground, if upheld, would amount to a condemnation without hearing, and therefore constitute a denial of due process of law. Thus the proposition, if sustained, would require us to hold that an admitted violation of one constitutional right must be left uncorrected because at the same time another and equally [232 U.S. 665, 671] fundamental constitutional right was disregarded; a conclusion which would give effect to both wrongs obviously demonstrates our plain duty to reverse and remand for further proceedings not inconsistent with this opinion.