State v. Emert

• Decision Date: 27 January 1891
• Citation: 15 S.W. 81,103 Mo. 241
• Parties: The State v. Emert, Appellant
• Court: Missouri Supreme Court

15 S.W. 81

103 Mo. 241

The State v. Emert, Appellant

Supreme Court of Missouri, Second Division

January 27, 1891

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Seneca N. Taylor for appellant.

(1) The so-called peddler's law, so far as it applies to the selling of the machine in question, is a regulation of commerce among the states, and violates the provisions of the constitution of the United States, which grants to congress the power to make such regulations. "Interstate commerce cannot be taxed at all by a state, even though the same amount of tax should be levied on domestic commerce, or that which is carried on solely within the state. Robbins v Taxing District, 120 U.S. 489; County of Mobile v Kimball, 102 U.S. 691; Leisy v. Hardin, 135 U.S. 100. This power vested in congress, "to regulate commerce with foreign nations, and with the Indian tribes, is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitation other than those prescribed in the constitution. It is coextensive with the subject upon which it acts, and cannot be stopped at the external boundary of the state, but must enter its interior and must be capable of authorizing the disposition of those articles which it introduces, so that they may become mingled with the common mass of property within the territory entered." Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat 419; Leisy v. Hardin, 135 U.S. 108. (2) The taxation in question does not come within the police power of the state. Henderson v. Mayer, 92 U.S. 259; Railroad v. Husen, 95 U.S. 465; Walling v. Michigan, 116 U.S. 466; Robbins v. Taxing District, 120 U.S. 489. (3) The taxation in question is an impost on imports, and, therefore, obnoxious to article 1, section 10, of the constitution of the United States.

John M. Wood, Attorney General, for the State.

As the statute, as amended, does not discriminate against goods which are not the product of this state, it is not liable to the objection which prevailed against the former statute, and its provisions may be enforced. Welton v. State, 91 U.S. 275; Robbins v. Taxing District, 120 U.S. 489; Machine Co. v. Gage, 100 U.S. 676; Ward v. Maryland, 20 U.S. [Law Ed.] 449; Woodruff v. Parham, 19 U.S. [Law Ed.] 383.

OPINION

Macfarlane, J.

Plaintiff was prosecuted upon information before a justice of the peace, for following the business of a peddler without having a license therefor. The case was appealed to the circuit court of Montgomery county, where it was tried, defendant found guilty and a fine of $ 50 imposed upon him. From the judgment he has appealed to this court, on the ground that a constitutional question is involved.

The case was submitted to the court upon the following agreed statement of facts:

"For the purpose of dispensing with evidence in the above-entitled cause, in the circuit court, it is agreed, by and between the parties to said cause, that the following are the facts in said case, and that said cause may be decided by the court on the following agreed statement, to-wit:

"First. That, for more than five years last past, the Singer Manufacturing Company has been, and still is, a corporation, duly organized under the laws of the state of New Jersey, and a citizen of that state.

"Second. That on and prior to the twenty-sixth day of June, 1889, E. S. Emert, defendant, was in the employ of said Singer Manufacturing Company on a salary for his services, and at said time, in pursuance of said employment, was engaged in going from place to place in said Montgomery county, Missouri, with a horse and wagon, soliciting orders for the sale of Singer sewing machines, having with him in said wagon a certain new Singer sewing machine, which, on said day, he offered for sale to various persons, at different places in said county, and on said day the defendant did find a purchaser for said machine, and did sell and deliver the same to David Portuchek, in said county.

"Third. That said Singer machine, in question, was manufactured by said Singer Manufacturing Company at its works in the state of New Jersey, and that said machine belonged to and was the property of said company, and that it was forwarded to this state by said company and delivered to defendant as its agent, for sale on its account, and said machine was sold on account of the said manufacturing company; that said machine was of the value of $ 50, and the defendant at the time of said sale had no peddler's license."

The statute under which defendant was convicted is as follows: "Sec. 7211. Whoever shall deal in the selling of patents, patent rights, patent or other medicines, lightning rods, goods, wares or merchandise, except books, charts, maps and stationery, by going from place to place, to sell the same, is declared to be a peddler.

"Sec. 7212. No person shall deal as a peddler without a license; and no two or more persons shall deal under the same license, either as partners, agents or otherwise; and no peddler shall sell wines or spirituous liquors."

Section 7217 fixes the license fee to be paid for peddling with horse and buggy at $ 20 for six months, for the use of the state.

Section 7218 fixes a penalty of $ 50 for dealing as a peddler with horse and wagon without license.

Defendant insists that this statute, as applied to him, under the statement of facts agreed to, is obnoxious to that provision of the federal constitution (sec. 1, art. 8) which delegates to congress the sole power to regulate commerce among the states.

This subject has, of late years, received much discussion and consideration from the courts of the country, both state and federal, and many of the questions involved have been firmly established. It is conceded by all, that a law of a state which imposes a tax upon articles manufactured in, or imported from, another state, as a condition of the right to sell and dispose of them, would be in violation of this provision of the constitution. The difficulty, in each case, has been to determine the effect of the particular law under consideration. To determine whether in that case the commercial power of the federal government had ceased and the power of the state had commenced. Solving these questions as they arose, it has been settled that it matters not whether the tax is imposed directly upon the commodity sold, or by way of license exacted of the persons who make the sales, the restriction on commerce would be the same in either case. Welton v. State, 91 U.S. 275, 23 L.Ed. 347; Robbins v. Taxing District, 120 U.S. 489, 30 L.Ed. 694, 7 S.Ct. 592.

By force of these decisions of the court having the highest judicial authority over the subject, it is settled, that the sale of goods which are in another state at the time of the sale, for the purpose of introducing them into the state in which the regulation is made, is interstate commerce; that a tax on a sale of such goods, before they are brought into the state, is a tax on interstate commerce itself; that the imposition of a license tax upon the person making such sale is, in its effect, a tax upon the goods themselves; that a state cannot tax goods beyond its jurisdiction. Hynes v. Briggs, 41 F. 468, citing Robbins v. Taxing District, supra; Brown v. Houston, 114 U.S. 622, 29 L.Ed. 257, 5 S.Ct. 1091; Woodruff v. Parham, 75 U.S. 123, 8 Wall. 123, 19 L.Ed. 382; Cook v. Pennsylvania, 97 U.S. 566, 24 L.Ed. 1015; Welton v. State, supra.

It has been equally well settled that as soon as goods are brought into a state, and have become a part of its general mass of property, they become taxable in the same manner as other similar property in the state. Brown v. Maryland, 25 U.S. 419, 12 Wheat. 419, 6 L.Ed. 678; Brown v. Houston, supra; Machine Co. v. Gage, 100 U.S. 676, 25 L.Ed. 754. The question of most difficulty is, to determine in individual cases, whether the property brought into one state from another has become a part of the general mass of the property of such state. The only rule yet laid down is, that so long as it remains in the original package in which it was brought into the state, it is beyond the control of the state laws attempting to restrict or prohibit its sale. Leisy v. Hardin 135 U.S. 100, 34 L.Ed. 128, 10 S.Ct. 681. The rule is more elaborately stated by Chief Justice Marshall in Brown v. Maryland, supra, who, after suggesting the difficulties that might arise in distinguishing between what would be laying a duty on imports and what would be the acknowledged power of states to tax persons and property within their territory, says: "Yet the distinction exists and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property of the country it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition of the constitution."

The right of the state to require a license tax on certain avocations, and among them that of a peddler, is not questioned in this case, and has been recognized by the supreme court of the United States in many of the cases bearing on this question. Machine Co. v. Gage supra. Whoever shall deal in selling goods, wares and merchandise, by going from place to place to sell the same, is declared to be a peddler by the...