
    The Kroger Grocery & Baking Co. v. Schwer, Aud., et al.
    (Decided October 21, 1929.)
    
      Messrs. King, Ramsey & Flynn and Mr. Clarence Moyer, for appellants.
    
      Messrs. Nichols, Morrill, Wood, Marx & Cintér and Mr. C. C. Sieinemaim, for appellee.
   Lloyd, J.

The plaintiff, the appellee, is an Ohio corporation conducting a series of chain stores, so called, of which there are about 1,700 in the state of Ohio, four of them being located in the city of San-dusky, and each of the four being licensed to sell cigarettes at retail.

The evidence shows two sales of cigarettes to have been made at one of these stores, one in February, 1928, of two cartons, and one in April, 1928, of five cartons; and further shows that in February, 1928, a sale of two cartons was made in each of two of the other stores and a sale of four cartons in the third. Each carton of cigarettes contains ten packages. In each package there are twenty cigarettes. A case or container of cigarettes contains fifty cartons.

The auditor and treasurer of Erie county, being informed of the above-mentioned sales, levied against each of these Sandusky stores the assessment provided by Section 5894, General Code, to be paid by those ‘ ‘ engaged in the wholesale business of trafficking in cigarettes, ’ ’ together with the penalty imposed for failure to deliver to the county auditor the statement as to such business required by law. The plaintiff sought and secured a temporary injunction in the court of common pleas enjoining the collection of these assessments, and, upon final hearing, it was made perpetual. From this decree the defendants, George A. Schwer, county auditor, and others, have appealed to this court.

The only question involved is whether the sales of cigarettes by plaintiff hereinabove enumerated constituted engaging “in the wholesale business of trafficking in cigarettes ’ ’ within the meaning of Section 5894, General Code. According to Webster, the term “traffic” means “to pass goods and commodities from one person to another for an equivalent in goods or money,” and the term “business,” in a general sense, includes every kind of employment the purpose of which is to gain a livelihood or obtain a profit, but as used in this statute it has, in our judgment, a more restricted meaning. The Legislature has not defined what shall constitute “wholesale business,” as that term is used in this statute, although it would seem peculiarly proper, if not essential, that this should have been done.

Every one at all familiar therewith, knows that it has always been customary for retail dealers in cigarettes to sell, upon request therefor, one or more scartons, and hitherto no one has questioned the propriety of doing so. It would seem, therefore, that it must be assumed that the Legislature intended the statute to apply to sales of larger quantities than custom had established as being within the proper scope of retail business. Since, under the statute, each of the stores of plaintiff must be considered a separate place of business, we have before us four actions rather than one, because the question of whether any one of them is “engaged in the wholesale business of trafficking in cigarettes” must be determined by the character of the business conducted in each store and not by the aggregate of the business carried on in all of them, since the statute provides that the assessment to be paid is “for each place where such business is carried on.” In the instant cases, whatever may be the facts otherwise, the evidence discloses but a single sale of one or more cartons in any of these stores, except in one of them, where one sale of two cartons was made in February and one of five cartons in April of 1928. In our judgment, a single act or transaction, or two isolated and separate transactions, at least under the circumstances disclosed by the evidence, do not constitute engaging “in the wholesale business of trafficking in cigarettes” within the intent and purpose of this statute.

We therefore find in favor of the plaintiff.

Decree for plaintiff.

Williams, J., concurs.

Richards, J., not participating.  