City Of Laurens v. Elmore

• Decision Date: 06 July 1899
• Citation: 55 S.C. 477,33 S.E. 560
• Parties: CITY OF LAURENS. v. ELMORE.
• Court: South Carolina Supreme Court

33 S.E. 560

55 S.C. 477

CITY OF LAURENS.

v.ELMORE.

Supreme Court of South Carolina.

July 6, 1899.

LICENSES—VALIDITY OP ORDINANCE—INTERSTATE COMMERCE.

Under Const. U. S. art. 1, § 8, confiding to congress the power to regulate interstate commerce, an ordinance of a city, fixing a special license tax for all occupations carried on within said city, is void as to the agent of a nonresident company, engaged in delivering pictures under a contract previously made between the customer and said company, and selling frames to customers only, with whom the purchase of the same is voluntary, and independent of the contract for the picture.

Appeal from common pleas circuit court of Laurens county; G. W. Gage, Judge.

C. R. Elmore was convicted in the mayor's court of the city of Laurens of the violation of an ordinance. The circuit court having reversed the judgment of the mayor's court, the city of Laurens appeals. Affirmed.

F. P. McGowan and W. R. Richey, for appellant.

Ball, Simkins & Ball, for respondent

POPE, J. This is an appeal from the judgment of the circuit court, which reversed the judgment of the mayor's court of the city of Laurens, wherein the defendant was adjudged guilty of the violation of an ordinance of such city, fixing a special license tax for all occupations carried on within said city of Laurens, S. C. It seems that the Chicago Portrait Company, of Chicago, in the state of Illinois, is engaged in the business of enlarging pictures or photographs, and selling frames to such pictures. This company carries on this work through agents, who deliver such work, when completed, under a contract previously made between the customer and said company. To purchase the frames is entirely voluntary, but the company only sends frames to its customers in contracts for enlarging pictures or photographs. Of course, it is lawful for the city of Laurens to exact a license from persons doing business within the limits of such city, unless the same contravenes the laws of the United States. The circuit judge held that the proposed special license was in contravention of the clause of the United States constitution which confides to congress the power to regulate interstate commerce. This court, in the recent case of State v. Coop, 52 S. C. 508, 30 S. E. 609, held that one who delivers a portrait already sold in a frame, with option to the purchaser to buy a frame, as set out in the contract of sale of the portrait, is not a hawker and peddler, under Code Cr. Proc. $294, in selling the frame to the purchaser of the portrait This decision was bottomed upon the two prior cases of State v. Moorehead, 42 S. C. 211, 20 S. E. 544, and Alexander v. Greenville Co., 49 S. C. 527, 27 S. E. 469; and all these cases are decided in view of section 8, art. 1, of the constitution of the United States. If congress has had confided to it under the terms of the federal constitution, the duty of regulating commerce between the states, its jurisdiction is exclusive; and the states can only exercise any interference with such commerce by special power given therefor by congress. No power has been confided by congress to the states of this Union, except in a few cases; and the present instance is not one of them. Hence the ordinance of the city council of Laurens now in question is unlawful, and therefore the circuit judge committed no error in the ruling appealed from. See Brennan v. City of Titus-ville, 153 U. S. 289, 14 Sup. Ct 829. It is the judgment of this court that the judgment of the circuit court be affirmed.

GARY, A. J., concurs In result

JONES, J. I concur in the opinion by Mr. Justice POPE in so far as it is held therein that the ordinance in question and the sentence thereunder are void, as an interference with interstate commerce, as applied to the act of the defendant in reference to the delivery of enlarged pictures or photographs as the agent of the Chicago Portrait Company, a resident of Chicago, III., pursuant to orders theretofore given. To this extent the ruling is in perfect accord with the decisions of the United States supreme court, a number of which are cited in the case of Brennan v. City of Titusville, 153 U. S. 289, 14 Sup. Ct 829, referred to in the opinion by Mr. Justice POPE. But I am unable to agree in so far as the opinion holds the ordinance requiring a license to sell picture frames within the city of Laurens is void as applied to the act of the defendant in this case. The record, or brief, to which alone we may look for the facts of this case, shows that defendant "delivered the enlarged pictures or photographs pursuant to orders theretofore given, and that he only sold picture frames to persons who had given orders for enlarged photographs." Here, then, is the distinct fact that the picture frames were not sold and delivered pursuant to any interstate order or contract therefor. I admit that, if the picture frames had been sold and delivered pursuant to the contract for delivery of the...