120 U.S. 489 (1887), Robbins v. Taxing Dist. of Shelby County, Tenn.

Citation:120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694
Case Date:March 07, 1887
Court:United States Supreme Court

Page 489

120 U.S. 489 (1887)

7 S.Ct. 592, 30 L.Ed. 694




United States Supreme Court.

March 7, 1887


Page 490

[7 S.Ct. 592] Luke E. Wright, for paintiff in error.

S. P. Walker, for defendant in error.



This case originated in the following manner: Sabine Robbins, the plaintiff in error, in February, 1884, was engaged at the city of Memphis, in the state of Tennessee, in soliciting the sale of goods for the firm of Rose, Robbins & Co., of Cincinnati, in the state of Ohio, dealers in paper and other articles of stationery, and exhibited samples for the purpose of effecting such sales,--an employment usually denominated as that of a [7 S.Ct. 593] 'drummer.' There was in force at that time a statute of Tennessee, relating to the subject of taxation in the taxing districts of the state, applicable, however, only to the taxing district of Shelby county, (formerly the city of Memphis,) by which it was enacted, among other things, that 'all drummers, and all persons not having a regular licensed house of business in the taxing district, offering for sale or

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selling goods, wares, or merchandise therein, by sample, shall be required to pay to the county trustee the sum of ten dollars ($10) per week, or twenty-five dollars per month, for such privilege; and no license shall be issued for a longer period than three months.' Act 1881, c. 96, § 16. The business of selling by sample, and nearly 60 other occupations, had been by law declared to be privileges, and were taxed as such; and it was made a misdemeanor, punishable by a fine of not less than five, nor more than fifty, dollars, to exercise any of such occupations without having first paid the tax, or obtained a license required therefor. Under this law, Robbins, who had not paid the tax nor taken a license, was prosecuted, convicted, and sentenced to pay a fine of $10, together with the state and county tax, and costs; and, on appeal to the supreme court of the state, the judgment was affirmed. This writ of error is brought to review the judgment of the supreme court, on the ground that the law imposing the tax was repugnant to that clause of the constitution of the United States which declares that congress shall have power to regulate commerce among the several states.

On the trial of the cause in the inferior court, a jury being waived, the following agreed statement of facts was submitted to the court, to-wit: 'Sabine Robbins is a citizen and resident of Cincinnati, Ohio, and on the --- day of ---, 1884, was engaged in the business of drumming in the taxing district of Shelby county, Tennessee,--i. e., soliciting trade, by the use of samples, for the house or firm for which he worked as drummer; said firm being the firm of 'Rose, Robbins & Co.,' doing business in Cincinnati, and all the members of said firm being citizens and residents of Cincinnati, Ohio. While engaged in the act of drumming for said firm, and for the claimed offense of not having taken out the required license for doing said business, the defendant, Sabine Robbins, was arrested by one of the Memphis or taxing district police force and carried before the Hon. D. P. Hadden, president of the taxing district, and fined for the offense of drumming without a license. It is

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admitted the firm of 'Rose, Robbins & Co.' are engaged in the selling of paper, writing materials, and such articles as are used in the book-stores of the taxing district of Shelby county, and that it was a line of such articles for the sale of which the said defendant herein was drumming at the time of his arrest.' This was all the evidence, and thereupon the court rendered judgment against the defendant, to which he excepted, and a bill of exceptions was taken.

The principal question argued before the supreme court of Tennessee was as to the constitutionality of the act which imposed the tax on drummers; and the court decided that it was constitutional and valid. That is the question before us, and it is one of great importance to the people of the United States, both as respects their business interests and their constitutional rights. It is presented in a nutshell, and does not, at this day, require for its solution any great elaboration of argument or review of authorities. Certain principles have been already established by the decisions of this court, which will conduct us to a satisfactory decision. Among those principles are the following:

1. The constitution of the United States having given to congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system, or plan of regulation. This was decided in the case of Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299, 319, and was virtually in volved in the case of Gibbons v. Ogden, 9 Wheat. 1, and has been confirmed in many subsequent cases; among others, in Brown v. Maryland, 12 Wheat. 419; [7 S.Ct. 594] Passenger Cases, 7 How. 283; Crandall v. Nevada, 6 Wall. 35, 42; Ward v. Maryland, 12 Wall. 418, 430; State Freight Tax Cases, 15 Wall. 232, 279; Henderson v. Mayor of New York, 92 U.S. 259, 272; Railroad Co. v. Husen, 95 U. s. 465, 469; Mobile v. Kimball, 102 U.S. 691, 697; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 203, 5 S.Ct. 826; Wabash R. Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4.

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2. Another established doctrine of this court is that, where the power on congress to regulate is exclusive, the failure of congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the states, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. This was held by Mr. Justice JOHNSON in Gibbons v. Ogden, 9 Wheat. 1, 222; by Mr. Justice GRIER in the Passenger Cases, 7 How. 283, 462; and has been affirmed in subsequent cases. State Freight Tax Cases, 15 Wall. 232, 279; Railroad Co. v. Husen, 95 U.S. 465, 469; Welton v. Missouri, 91 U.S. 275, 282; County of Mobile v. Kimball, 102 U.S. 691, 697; Brown v. Houston, 114 U.S....

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