Alexander v. State

• Decision Date: 26 November 1890
• Citation: 12 S.E. 408,86 Ga. 246
• Parties: Alexander. v. State.
• Court: Georgia Supreme Court

86 Ga. 246

12 S.E. 408

Alexander.

v.State.

Supreme Court of Georgia.

Nov. 26, 1890.

Dealing in Futures—Taxation—Interstate Commerce.

1. Acts Ga. 1888, p. 22, taxing the business of buying and selling "futures, " is not a violation of the interstate commerce clause of the constitution of the United States.

2. The requirements of the statute that the tax be paid by every individual, firm, or agent "engaged in the business of selling or buying" futures apply to one soliciting customers in the state, who on obtaining a customer receives his money and telegraphs his offer to a firm in another state, and if the offer is accepted forwards the money, and thereafter pays to the customer his profits or collects from him his losses.

Error from city court, Richmond county; Eve, Judge.

Leonard Phinizy, for plaintiff in error.

C. H. Cohen, for defendant in error.

Simmons, J. The general tax act for 1880 and 1890, in the 18th paragraph of section 2, (Acts 1888, p. 22,) levies a license tax as follows: "Upon every individual or firm, or his or their agents, engaged in the business of selling or buying farm products, sugar, coffee, and salt and meat for future delivery, (commonly called 'futures, ') five hundred dollars each per annum for the county where such business is carried on: provided, that this tax shall not be demanded of any cotton warehouseman, dealer in cotton, or any provision broker, who takes orders in the regular course of their trade only for the actual and bona fide delivery of cotton and other produce so ordered, and where by the terms of the contract it is not left to the option of the party so ordering, or the party taking such order, to avoid the delivery of the produce or products by paying the difference in the market price of such produce or products at the time of delivery: provided, further, that such cotton warehouseman, dealer in actual cotton, or any provision broker, does not carry on the business of buying futures in connection with his or their other business." Section 4 of the act provides, in substance, that, before any person taxed as above provided for shall be authorized to carry on said business, "they shall go before the ordinary of the county in which they propose to do business, and register their names, place of business, and at the same time pay their taxes to the tax collector. * * * Any person failing to register with the ordinary as herein required shall be liable to indictment for a misdemeanor, and on conviction shall be fined not less than fifty dollars nor more than two hundred dollars, at the discretion of the court trying the same, or be imprisoned as prescribed by section 4310 of the Code. " It appears from the record in this case that Alexander, the plaintiff in error, failed to go before the ordinary and register his name and place of business, and to pay the license tax to the tax collector. He was indicted, tried, and convicted under this act. He moved for a new trial upon the several grounds set out in his motion, which was denied by the trial judge, and he excepted. The plaintiff in error contends that the court erred in refusing to give the following in charge to the jury: "The act of December 26, 1889, was not intended to apply to parties non-resident soliciting orders in this state and executing said orders out of this state for future delivery of cotton. To make it apply to such parties would be to make it violate article 1, § 8, par. S, of the constitution of the United States, and I so charge you." And he further complains that the court erred in substituting in lieu thereof this language: "I give you in charge this part of the third request with this qualification, viz.: Provided the contracts were such as could not be avoided by payment of the actual price or the difference in price at any time." To treat this exception technically, there are two reasons why the judge should not have given this request in charge: (1) Because there was no act of December 26, 1889, on the subject, the act applicable being the act of December 26, 1888; and (2) it does not appear that Alexander, the defendant in the court below, was a nonresident of the state of Georgia soliciting orders in this state, but it does appear that he was a resident of the county...