Chicago Portrait Co. v. City of Macon

• Decision Date: 08 April 1899
• Parties: CHICAGO PORTRAIT CO. v. MAYOR, ETC., OF CITY OF MACON.
• Court: U.S. District Court — Southern District of Georgia

147 F. 967

CHICAGO PORTRAIT CO. v. MAYOR, ETC., OF CITY OF MACON.

United States Circuit Court, S.D. Georgia, Western Division.

April 8, 1899

Claud Estes and Malcolm D. Jones, for complainant.

Minter Wimberly, City Atty., for defendant.

SPEER District Judge.

The Chicago Portrait Company, a corporation of the state of Illinois, brings its bill against the mayor and council of the city of Macon, and asks an injunction against the enforcement of a tax upon the complainant's agents, upon the ground that such enforcement is repugnant to article 1 Sec. 8, par. 3, of the Constitution of the United States. W L. Chrystal was one of the complainant's agents. His case was taken as typical of the others, and the case submitted upon the following agreed upon facts:

'Chrystal was a nonresident of the state of Georgia. The Chicago Portrait Company was a corporation of Chicago, Ill., with its principal office and place of doing business in Chicago. Chrystal was a special agent of the Chicago Portrait Company and had been sent to Macon for the Purpose of delivering certain pictures to customers who had ordered pictures enlarged. That such pictures were enlarged in Chicago, and after they were finished they were consigned to the Chicago Portrait Company in bulk at Macon, Ga., for said customers, and were received by Chrystal as an agent of the Chicago Portrait Company for the purpose of delivering the same to the parties who had ordered them and receiving the pay therefor at the contract price. That such pictures were the property of the Chicago Portrait Company, until the same had been received and paid for by the respective customers who had ordered the work done. In case a customer refused to receive the picture, the same was shipped back to said company. That each and every customer had the privilege of receiving his picture framed or unframed, and had a choice between frames of different prices. That the orders for said pictures had been previously taken by other agents of the Chicago Portrait Company and forwarded, with the pictures to be enlarged, to Chicago, where the work of enlargement was to be done, and that Chrystal had been sent to Macon to make delivery of and to collect for said work, and was engaged at the same at the time he was arrested.'

The bill contains the usual averment that the injury attempted by the city of Macon is noncomputable and irreparable in damages; that equity should take jurisdiction to avoid a multiplicity of suits-- there being a large number of agents here engaged in the same capacity with Chrystal. The prayer is for an injunction to restrain and enjoin the city of Macon from arresting the agents of complainant who are now here, or who might at any time be sent to the city of Macon for the purpose of soliciting orders for pictures to be enlarged, or who may be here for the purpose of delivering and collecting for such pictures after they are enlarged and returned for delivery, and from attempting to collect from complainant a license or tax for its business by the mayor and council of the city of Macon, or from otherwise interfering with the agents of the complainant, or the conduct of its business.

The license ordinance of the city of Macon, in contemplation of which the tax is demanded, is as follows:

'Peddlers or hawkers, meaning those who sell any article of merchandise, books, etc., or from house to house solicit orders therefor, whether sold direct or delivered at a later period, shall pay a license per month of, and no license shall be prorated, $5.00.

'And each and every person engaged in the above business shall be subject to license, and such license shall include the delivery of the article sold: provided, that this license shall not apply to traveling salesmen, commonly known as drummers, selling to the trade only.'

While there are other averments in the bill and in the not properly verified answer of the defendant, the attention of the court has been, of course, restricted to the recital of agreed upon facts above stated. This being true, it is difficult to perceive anything in the business tax except an instance of interstate commerce. The Chicago Portrait Company sends its agents to Macon for the purpose of soliciting for the business in which it is engaged. That business is the manufacture of enlarged photographs. It is conducted exclusively in another state. It certainly cannot be contended that these soliciting agents are taxable by this state or by any corporation created by it. They are not peddlers, because they do not sell either by retail or by sample, and they do not carry their goods with them. They are merely traveling solicitors for the corporation engaged in the business ...