Bacon v. Locke

• Decision Date: 09 March 1906
• Citation: 83 P. 721,42 Wash. 215
• Parties: BACON v. LOCKE, Constable.
• Court: Washington Supreme Court

83 P. 721

42 Wash. 215

BACON v. LOCKE, Constable.

Supreme Court of Washington

March 9, 1906

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Application by George T. Bacon for writ of habeas corpus to obtain his release from the custody of respondent, W. F. Locke constable. From an order denying the application, petitioner appeals. Reversed.

Rose &amp Craven, for appellant.

Virgil Peringer, for respondent.

ROOT J.

Appellant was arrested upon a complaint charging him with the crime of peddling and canvassing without a license, in violation of an act of the Legislature approved March 14, 1905, and found at pages 372, 373 of the published Laws of 1905. He filed a petition for his release upon a writ of habeas corpus, which petition and application was by the honorable superior court denied. From this order and judgment he appeals to this court.

It is his contention that the statute in question is in conflict with certain provisions of the Constitutions of the United States and of this state. That portion of the statute involved herein reads as follows: 'That every person, firm or corporation who peddles out, or, after shipment to the state, canvasses and sells, by sample to users or consumers, clocks, agricultural implements, or machinery, stoves, ranges, windmills, lightning rods, wagons buggies, carriages, surreys, and other similar vehicles washing machines, sewing machines, churns, or groceries shall pay in advance a license tax of two hundred ($200.00) dollars for each calendar year, or portion thereof, to be paid in each county in which said occupation is pursued.' Appellant was agent of the Spaulding Manufacturing Company, whose factory is located at Grinnell in the state of Iowa. On the 3d of July, 1905, he sold to Julius Shields in Whatcom county, as per sample then exhibited, a carriage or wagon, taking his order for the same, and afterwards on the 5th of July delivering the wagon thus sold; said wagon being taken from the warehouse of the Spaulding company in said county, where it had a car load lot of carriages or wagons stored. It is urged by appellant that this statute discriminates against goods manufactured in other states, and consequently against the owners of said goods and their agents. Section 8, art. 1, of the United States Constitution contains the following: 'The Congress shall have power * * * to regulate commerce with foreign nations and among the several states and with Indian tribes.' Section 2 of article 4 contains the following: 'The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' Section 1 of the fourteenth amendment reads as follows: 'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' Section 12 of article 1 of the state Constitution reads as follows: 'No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.'

We think appellant's contention must be upheld. The clause 'after shipment to the state' has the effect of discriminating between goods manufactured in this state and those shipped here from a sister commonwealth. To avoid this was one of the prime purposes of the constitutional provisions hereinbefore quoted; and the decisions of the United States Supreme Court, as we understand them, have announced principles which, applied to this statute, would render it clearly obnoxious to the federal Constitution. Webber v. Virginia, 103 U.S. 344, 26 L.Ed. 565; Brennan v. Titusville, 153 U.S. 289, 14 S.Ct. 829, 38 L.Ed. 719; Woodruff v. Parham, 75 U.S. 140, 19 L.Ed. 382; Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347; Brown v. Maryland, 12 Wheat. 446, 6 L.Ed. 678; Ex parte Deeds (Ark.) 87 S.W. 1030; Brown v. Houston, 114 U.S. 622, 5 S.Ct. 1091, 29 L.Ed. 257; Howe Machine Co. v. Gage, 100 U.S. 676, 25 L.Ed. 754; Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430; Walling v. Michigan, 116 U.S. 446, 6 S.Ct. 454, 29 L.Ed. 691; Ward v. Maryland, 79 U.S. 418, 20 L.Ed. 449; Robbins v. Taxing Dist. Shelby Co., 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694.

In the case of Webber v. Virginia, 103 U.S. 350, 26 L.Ed 567, the Supreme Court, speaking through Mr. Justice Field, said: 'By these sections, read together, we have this result: The agent of the sale of articles manufactured in other states must first obtain a license to sell, for which he is required to pay a specific tax for each county in which he sells or offers to sell them; while the agent for the sale of articles manufactured in the state, if acting for the manufacturer, is not required to obtain a license or pay any license tax. Here there is a clear discrimination in favor of home manufacturers and against the manufacturers of other states. Sales by manufacturers are chiefly effected through agents. A tax upon their agents when thus engaged is therefore a tax upon them, and if this is made to depend upon the foreign character of the articles, that is, upon their having been manufactured without the state, it is to that extent a regulation of commerce in the articles between the states. It matters not whether the tax be laid directly upon the articles sold or in the form of licenses for their sale. If by reason of their foreign character the state can impose a tax upon them or upon the person through whom the sales are effected, the amount of the tax will be a matter resting in her discretion. She may place the tax at so high a figure as to exclude the introduction of the foreign article and prevent competition with the home product. It was against legislation of this discriminating kind that the framers of the Constitution intended to guard when they vested in Congress the power to regulate commerce among the several states. * * * Commerce among the states in any commodity can only be free when the commodity is exempted from all discriminating regulations and burdens imposed by local authority by reason of its foreign growth or...