Taking Steps Against Peddlers: The Fate of Early Colorado Legislation, 0616 COBJ, Vol. 45 No. 6 Pg. 61
| Author | Frank Gibbard |
Frank Gibbard
Historical Perspectives
About the Author
Frank Gibbard is a staff attorney with the Tenth Circuit Court of Appeals(303) 844-5306, frank_gibbard@calO.uscourts.gov. The views expressed are those of the author and not of the Tenth Circuit or its judges. Gibbard thanks Wendy Lamar of the Tenth Circuit Library for her research assistance. Readers are encouraged to contact Gibbard with topic suggestions or to volunteer to write Historical Perspectives articles. A collection of Historical Perspectives articles published in The Colorado Lawyer is available for purchase from CBA-CLE. Visit cle.cobar.org/books for complete information.
Here is a story that may sound familiar. A group of "brick and mortar" stores has lodged a complaint with the state legislature about a group of upstart competitors. They argue it is unfair they are required to pay taxes to support the local government, but these competitors, who do not have physical storefronts, are not. To compound the injustice, the competitors do not have the expense of keeping up a physical location in the community.
Are these merchants complaining about the many Internet businesses that have sprouted over the past couple of decades, or lower-overhead service providers like Uber or Airbnb? No, this particular plaint was made long before the World Wide Web was spun, in the year 1750 to be exact, by a group of Rhode Island merchants.1 The merchants complained about itinerant peddlers who were hawking goods in their communities, arguing they were engaging in unfair competition.
State and local legislatures paid attention to such concerns. Over the next 200 years, governments passed many laws and ordinances restricting wandering peddlers. A typical tactic involved imposing exorbitant licensing fees on the itinerant merchants.2 As we will see, Colorado was not immune from this regulatory impulse.
A Brief History of Hawking
The origin of the itinerant peddler of goods is lost among the shadows of time. The wandering Aramean who made his way to ancient Egypt cannot have been the first of his kind,3 and pastoral nomads were eventually joined by enterprising hawkers and walkers of every sort. In Europe, where the trade was often carried on by Jewish or Roma merchants and Irish "tinkers," its known history extends at least as far back as medieval times.
The word "peddler" entered the English language in the late 14th century, though cognates of the word were in use as surnames as far back as circa 1200.4 The word's actual origin is unknown, and it may relate to another word of unknown origin, "ped," meaning "panier" or "basket."5Other commentators have drawn a connection to the French word "pied," meaning foot, reasoning (perhaps spuriously) that the term arose because most peddlers traveled on foot6
In America, the business of itinerant peddling peaked in the 1800s, just before the rise of the railroads and mail order catalogs. But from the beginning, the peddling or "hawking" trade enjoyed a mixed reputation in this country. On one hand, peddlers permitted people in isolated communities to benefit from manufactured goods such as tin ware, clocks, and books that they might otherwise have had no opportunity to purchase. On the negative side, peddlers earned a reputation for selling shoddy goods and otherwise attempting to cheat their customers. The "Yankee peddler," if sometimes admired for his entrepreneurial spirit, was also resented for his sharp practices.
With the rise of the railroads, and later the development of the highway system, the peddler did not so much disappear as mutate into the traveling salesman. Salesmen, even if itinerant, often worked for a particular firm to sell that firm's products. Many of them did not actually "peddle" goods but instead took orders for a company's products for later delivery. The company in question might actually have a brick-and-mortar location within a state or a community, giving its outside sales force a patina of settled respectability.
Notwithstanding these innovations, goods-peddlers of the traditional variety continued to hawk their wares door-to-door. Judging from the wording of the relevant statutes, they were a primary target of anti-peddling legislation. But as the early Colorado cases demonstrate, the many forms of door-to-door sales presented some difficult conceptual distinctions. The question "who is a peddler?" did not always find an easy answer.
The Kennedy Case
One of the earliest Colorado cases involving this topic was the 1897 case of Kennedy v. People ex rel. Town of La Junta.7 The town of La Junta had passed a law requiring "persons who shall pursue the avocation of hawker or peddler" within the town to obtain a license or risk a daily fine of between $ 10 and $25.[8] The peddler's license itself cost $15 a day, a sum equivalent to at least $400 per day in today's dollars.9 The exorbitant license fee plainly was intended to ward off itinerant salesmen by greatly increasing their overhead cost.
To avoid ensnaring more favored forms of commerce in the statutory net, the statute went to some length to define who was and was not required to obtain a license. It required the following categories of people to obtain a peddler's license to do business:
"[a]ny itinerant person who shall hawk, vend or peddle goods, wares or merchandise, household furniture, clocks, jewelry, gold, silver or plated ware, sewing machines, spectacles, drugs, nostrums, perfumes or any thing [sic], either by delivering the goods at the time or by taking orders for the future delivery of the same";
"any person who shall offer to vend, hawk or peddle any goods, wares or merchandise, or such other things as are above enumerated in any of the ways above stated"; and
"any person who shall under color or pretense of bona fide merchants take up a temporary residence in the town of La Junta for the purpose of disposing of their goods, wares or merchandise of whatever kind whether at auction or at retail."10
But the statute also exempted the following categories of traveling vendors:
"colporteurs selling only Bibles or other religious works";
"the class of men known as drummers, who solicit orders from men in business at their place of business"; and
"merchants permanently located in said town selling goods from their delivery wagons regularly sent out from their places of business to take and fill orders."11
A.C. Kennedy was an agent of a mercantile business in Trinidad that sold wholesale and retail goods. He was paid a salary to go door-to-door with a catalog and samples of his employer's products, "soliciting] orders for the future delivery of merchandise in the town of La Junta."12 He carried his samples in a wagon owned by his employer. The goods his customers ordered were shipped by rail to the town. He did not consider himself a "peddler."
On May 17, 1895, Mr. Kennedy fulfilled one of...
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