City of Eldorado Springs v. Highfill
| Decision Date | 05 July 1916 |
| Parties | CITY OF ELDORADO SPRINGS v. F. J. HIGHFILL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cedar Circuit Court. -- Hon. B. G. Thurman, Judge.
Affirmed.
Charles E. Gilbert and J. F. Rhodes for appellant.
(1) A sale in this State of goods which are in another state at the time of said sale, is interstate commerce, and no license is or can be required for making such sale, being violative of section 8 of article 1 of the Constitution of the United States. State v. Looney, 214 Mo. 216; State v Emert, 103 Mo. 245; Hynes v. Briggs, 41 F. 469; Robbins v. Taxing District, 120 U.S. 489; Brown v. Houston, 114 U.S. 622; Welton v. State of Missouri, 91 U.S. 275; Woodruff v. Parhan, 8 Wall. 123; Cook v. Pennsylvania, 97 U.S. 566; Emert v. Missouri, 156 U.S. 296; Dozier v State, 218 U.S. 123; Brookfield v. Kitchen, 163 Mo. 546; State v. Hoffman, 50 Mo.App. 585. (2) The plaintiff city has no power to license, tax and regulate any business or occupation unless specific authority is granted to it to do so by the Legislature and Sec. 9399, R. S. 1909 governing cities of the fourth class does not give said city any authority to assess a tax against a "canvasser or agent taking orders or selling goods to customers by canvassing or going about from house to house" and that part of said ordinance is null and void. Independence v. Cleveland, 167 Mo. 384; Knox City v. Thompson, 19 Mo.App. 523; Hannibal v. Price, 29 Mo.App. 280; Dillon on Mun. Corporations (1 Ed.), sec. 55; St. Louis v. Laughlin, 49 Mo. 599; Grumley v. Webb, 44 Mo. 444; St. Louis v. Herthel, 88 Mo. 128; Constitution of Missouri, sec. 3, art. 10; Kansas City v. Grush, 151 Mo. 128; St. Louis v. Spiegel, 60 Mo. 587. (3) The defendant is not a peddler. Sec. 10282, R. S. 1909; Trenton v. Clayton, 50 Mo.App. 535; 1 Dillon on Mun. Corp. (4 Ed.), sec. 89.
R. N. Banister for respondent.
(1) If the judgment on the circuit may be sustained on any theory of the law applicable to the facts, on either count of the complaint, it must stand. Rinard v. Railroad, 164 Mo. 270; Hess v. Ganz, 90 Mo.App. 439. (2) Respondent being a city of the fourth class had the power and authority under its charter (Sec. 9399, R. S. 1909) "to license, and to levy and collect a license tax on . . . hawkers, peddlers, . . . merchants of all kinds, . . . and all other business, trades and avocations whatever." (a) Appellant and his business at El Dorado Springs bring him within the designation "merchants of all kinds." Kansas City v. Lorber, 64 Mo.App. 608; Kinney's Law Dict. & Glos. 459; Anderson's Law Dict. 671; 20 Am. & Eng. Ency. (2 Ed.), p. 579. (b) But if appellant was not a merchant of any kind, and his business not that of a dealer in merchandise, it certainly was ejusdem generis with that of dealing, buying and selling merchandise, and that will suffice under the all-embracing clause "all other business, trades and avocations whatever." Kansas City v. Lorber, 64 Mo.App. 608; Kansas City v. Vinquist, 36 Mo.App. 584; Brookfield v. Kitchen, 163 Mo. 551; St. Louis v. Woodruff, 71 Mo. 92; St. Louis v. Herthel, 88 Mo. 128; Connor v. Carterville, 125 S.W. 861. (3) Appellant, in his transactions at respondent city, was not engaged in interstate commerce, and he cannot hide behind the Aegis of the Federal Constitution under any yet construction and application of section 8, article 1, of that instrument. He was not the agent of the Pennsylvania company in his dealings with his customers. The very latest cases in this court in point are these of Jewel Tea Co. v. Carthage, 257 Mo. 383, and Fleming v. Mexico, 171 S.W. 321, and under the standards there set up appellant does not fill the measure.
This suit was brought in the mayor's court of El Dorado Springs, charging defendant with violating an ordinance of said city in engaging in the business of a canvasser or agent by taking orders or selling goods to customers without taking out a license authorizing him so to do. He was convicted as charged and his punishment assessed at a fine of $ 20. He appealed to the circuit court of Cedar County, where the judgment below was affirmed. He thereupon perfected an appeal to the Springfield Court of Appeals and filed therein an application for a transfer of the cause to the Supreme Court on the grounds (1) that a Federal question was involved necessitating a construction of the United States Constitution; and (2) that a construction of the State Constitution was also necessary to a determination of his rights. The application was granted and the case transferred to this court.
The material parts of the ordinance in question are as follows:
The formal sufficiency of the complaint charging defendant with a violation of this ordinance is not questioned. The defendant at the time of his arrest was going from house to house carrying samples of aluminum wares for kitchen and cooking purposes, exhibiting same to prospective purchasers, many of whom agreed to buy from him wares similar to the samples and to pay for same upon delivery after satisfactory examination. Two separate orders for goods of the kind agreed to be purchased were made by the defendant. One was directly to the manufacturing company of the wares at a point in Pennsylvania and the other to a branch establishment of the same company in East St. Louis, Illinois. Each of these orders directed the company addressed to send to defendant a quantity of their wares sufficient in each case to meet the requirements of the prospective sales he had made. In no case did he furnish the manufacturing company with the names of particular purchasers of any of the wares ordered. Before making these orders he had in each case furnished the company with letters of credit to cover the cash amount of the particular order. The goods in each order were billed and shipped to defendant in bulk and he paid the freight charges thereon. Upon their receipt he sorted and delivered them in accordance with the conditional orders theretofore made, and if the goods were accepted they were paid for by the purchasers. He had an agreement with the manufacturing company that he might return at its expense goods on any order to the amount of $ 20 not taken by any one person to whom he had contracted to sell them and who had declined to receive same, and for goods so returned he was to be credited at the wholesale price of such articles.
I. Defendant's contention is that he was, as the agent of the manufacturing company, engaged in interstate commerce and hence not amenable to the license laws of this State nor to municipal ordinances. To sustain this contention he cites Fleming v. Mexico, 262 Mo. 432, 171 S.W. 321; Jewel Tea Co. v. Carthage, 257 Mo. 383, 165 S.W. 743; and Kansas City v. McDonald, 175 S.W. 917.
A comparison, or if there be differences, a contrast, of the facts in these cases with those in the instant case will enable it to be determined whether they may with propriety be cited as sustaining defendant's contention. Preliminary to this review it is well to understand what is meant by "interstate commerce" as applied to this case.
The judicial meaning of the term "commerce" as first definitely declared in Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23, is that it is not traffic alone, but "it is intercourse." Comprehensively speaking, it describes the intercourse between nations, but here it is confined to the intercourse between persons, firms or corporations of the different States.
"Importation," says Sanborn, J., in Butler Bros. Shoe Co. v. United States Rubber Co., 156 F. (C. C. A.) 1, "is the indispensable element, the test, of interstate commerce." Generally speaking, therefore, wherever there is a negotiation, contract, trade or dealing between persons of different states in which importation is an essential feature or forms a component part of the transaction it may be denominated "interstate commerce." [Text Book Co. v. Pigg, 217 U.S. 91, 54 L.Ed. 678, 30 S.Ct. 481.]
Necessarily there are limitations upon this definition due to differences in the facts in particular cases. In no case has it been held that the act of Congress regulating interstate commerce is to be so construed as to interfere with the power of a State to fully regulate its police and taxing powers and its domestic trade, provided, of course, the State act does not conflict with the plain provisions of the Federal statute. Cases seeming to hold to the contrary will be found upon analysis to contain other controlling facts governing the court's conclusion and not merely an interference with the powers named.
The term here involved and necessary to a determination of this case having been defined, a review of the rulings of this court thereon is in order.
In Fleming v. Mexico, supra, an agent of a foreign...
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