Charles Cook v. County of Marshall

• Court: U.S. Supreme Court
• Writing for the Court: Brown
• Citation: Charles Cook v. County of Marshall, 196 U.S. 261, 25 S.Ct. 233, 49 L.Ed. 471 (1905)
• Decision Date: 16 January 1905
• Docket Number: No. 98,98
• Parties: CHARLES P. COOK et al., Plffs. in Err. , v. COUNTY OF MARSHALL, Iowa

196 U.S. 261

25 S.Ct. 233

49 L.Ed. 471

CHARLES P. COOK et al., Plffs. in Err.,

v COUNTY OF MARSHALL, Iowa.

No. 98.

Argued December 9, 12, 1904.

Decided January 16, 1905.

This was a petition by the owner and tenant of a certain room in the city of Marshalltown, Iowa, addressed to the board of supervisors, for the remission of a tax of $300, imposed upon the business of selling cigarettes, which business was carried on by Charles P. Cook, one of the plaintiffs in error. The petition being denied, an appeal was taken to the district court, where a demurrer was interposed, which was sustained by that court, and an appeal taken to the supreme court, where the judgment of the district court was affirmed. 119 Iowa, 384, 93 N. W. 372.

Messrs. Junius Parker, W. W. Fuller, and Frank S. Dunshee for plaintiffs in error.

[Argument of Counsel from pages 262-264 intentionally omitted] Mr. F. E. Northup for defendant in error.

[Argument of Counsel from pages 264-268 intentionally omitted] Mr. Justice Brown delivered the opinion of the court:

This case involves the constitutionality of § 5007 of the Iowa Code, imposing a tax of $300 per annum upon every person, and also upon the real property and the owner thereof, whereon cigarettes are sold or kept for sale. The section is printed in full in the margin.

The facts of the case were that the plaintiff, Charles P. Cook, carried on a retail cigar and tobacco store upon premises leased by him from his co-plaintiff. Cook ordered his cigarettes of the American Tobacco Company, at St. Louis. They were delivered to an express company, and brought by such company from St. Louis, or other places outside of the state of Iowa, directly to the place of business of the plaintiff, in small pasteboard boxes, containing ten cigarettes each, each package being sealed and stamped with the revenue stamp. These packages were shipped absolutely loose, and were not boxed, baled, wrapped, or covered, nor were they in any way attached together. Nothing appears in the record to indicate the means used in transporting these cigarettes from the factory of the manufacturer to the place of business of the retail dealer, and we are left to infer that they were shoveled into and out of a car, and delivered to plaintiffs in that condition. The pack-

Sec. 5007. Taw on sale.—There shall be assessed a tax of $300 per annum against every person, partnership, or corporation, and upon the real property and the owner thereof, within or whereon any cigarettes, cigarettes wrapper, or any paper made or prepared for the use in making cigarettes, or for the purpose of being filled with tobacco for smoking, are sold or given way, or kept with the intent to be sold, bartered, or given away, under any pretext whatever. Such tax shall be in addition to all other taxes and penalties, shall be assessed, collected, and distributed in the same manner as the mulct liquor tax, and shall be a perpetual lien upon all property, both personal and real, used in connection with the business; and the payment of such tax shall not be a bar to prosecution under any law prohibiting the manufacturing of cigarettes or cigarettes paper, or selling, bartering, or giving away the same. But the provisions of this section shall not apply to the sales by jobbers and wholesalers in doing an interstate business with customers outside of the state ages were not separately or otherwise addressed, but at the time they were delivered to the express company the driver gave a receipt showing the number of packages and the name of the person to whom they were to be sent, retaining a duplicate himself.

The constitutionality of the act as applied to the plaintiffs was attacked upon two grounds:

(1) That it was an attempt to interfere with the power of Congress to regulate commerce between the states.

(2) That it denied to the plaintiffs the equal protection of the laws.

The argument of the plaintiffs is the same as that which was pressed upon our attention a few years ago in Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132, that the packages of ten cigarettes were each the original packages in which these cigarettes were imported from other states, and that, under the decisions of this court in Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678, Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, and Schoolenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757, they were entitled to the immunities attaching to original packages. We reviewed these and a large number of other cases in our opinion, and came to the conclusion that these boxes were in no just sense original packages within the spirit of the prior cases, and that their shipment in this form was not a bona fide transaction, but was merely a convenient subterfuge for evading the law forbidding the sale of cigarettes within the state. This case differs from that only in the fact that in the Austin Case the packages were thrown loosely into baskets, which were shipped on board the train, and carried to Austin's place of business. These baskets, it is argued, might have been considered as the original packages.

This difference, however, was not insisted upon as distinguishing the two cases in principle. Indeed, it was admitted to be one not of 'great magnitude or seeming legal significance.' The main argument of the plaintiffs was frankly addressed to a reconsideration of the principle involved in the Austin Case, and a reinsistence upon the position there taken that the packages in which the cigarettes were actually shipped must govern, and that we cannot look to the motives which actuated such shipment, or to the fact that ordinary importations of cigarettes were made in boxes containing a large number of these so-called original packages. We have carefully reconsidered the principle of that case, and, without repeating the arguments then used in the opinions, we have seen no reason to reverse or change the views there expressed.

The term 'original package' is not defined by any statute, and is simply a convenient form of expression adopted by Chief Justice Marshall in Brown v. Maryland, to indicate that a license tax could not be exacted of an importer of goods from a foreign country who disposes of such goods in the form in which they were imported. It is not denied that, in the changed and changing conditions of commerce between the states, packages in which shipments may be made from one state to another may be smaller than those 'bales, hogsheads, barrels, or tierces,' to which the term was originally applied by Chief Justice Marshall, but, whatever the form or size employed, there must be a recognition of the fact that the transaction is bona fide one, and that the usual methods of interstate shipment have not been departed from for the purpose of evading the police laws of the states.

In Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, quarter barrels, and even one-eighth barrels and cases of beer, were recognized as original packages or kegs, though the size of such packages and the usual methods of transporting beer do not seem to have been made the subject of discussion. There is nothing in the opinion to indicate that it was not legitimate to ship beer in kegs of this size. So, too, in Schollenberger v. Pennsylvania, oleomargarine transported and sold in packages of 10 pounds weight was recognized as bona fide, but it was expressly found by the jury in that case that the package was an original package, as required by the act of Congress, and was of such 'form, size, and weight as is used by producers or shippers for the purpose of securing both convenience in handling and security in trans- portation of merchandise between dealers in the ordinary course of actual commerce, and the said form, size, and weight were adopted in good faith, and not for the purpose of evading the laws of the commonwealth of Pennsylvania, said package being one of a number of similar packages forming one consignment, shipped by the said company to the said defendant.' While it may be impossible to define the size or shape of an original package, the principle upon which the doctrine is founded would not justify us in holding that any package which could not be commercially transported from one state to...