Ex parte Hanson

• Citation: 28 F. 127
• Parties: Ex parte HANSON.
• Decision Date: 24 June 1886
• Court: U.S. District Court — District of Oregon

28 F. 127

Ex parte HANSON.

United States District Court, D. Oregon.

June 24, 1886

H. Todd Bingham and Edward W. Bingham, for petitioner.

Zera Snow and Albert H. Tanner, for respondent.

DEADY J.

This is a petition by Emilius W. Hanson for a writ of habeas corpus. The amended petition states that the petition is unlawfully restrained of his liberty by Samuel B. Parish, the chief of police of the city of Portland; that the petitioner is a resident of Seattle, Washington, and is the salesman of the Northwestern Cracker Company of that place, which is there engaged in the manufacture of breadstuffs, and in the sale of the same there and elsewhere; that, as the agent of said company, the petitioner, on May 20, 1886, at Portland offered to sell breadstuffs, manufactured thereby, upon an agreement that the same were to be manufactured in Seattle and shipped thence to the purchasers in Portland, whereupon said Parish arrested the petitioner because he did not have a license from Portland 'as a drummer and commercial traveler' for selling goods as aforesaid, as required by ordinance 4817, entitled 'An ordinance to license, tax and regulate drummers and commercial travelers,' and approved March 4, 1886; that manufacturers or merchants of Portland are not taxed for the privilege of selling goods at their places of business therein, and do not employ persons to go about, from place to place, within said town, offering to sell goods by sample or otherwise; that said ordinance was designed and intended to discriminate in favor of goods held in Portland for sale, against goods held elsewhere and offered for sale therein, and, by reason of the tax thereby imposed on the latter, does in fact so discriminate, and is therefore in conflict with the constitution of the United States, which gives congress the power to regulate commerce among the states, and void; and the proceeding thereunder against the petitioner is therefore without due process of law, and contrary to the fourteenth amendment.

Briefly stated, the ordinance in question requires 'drummers and commercial travelers' to pay a license of $25 per quarter, or $3 per day for less than six days, or $2 per day for any greater number of days; and, in default thereof, to be punished by a fine of not less than $10 nor more than $200, or by imprisonment not less than 5 nor more than 90 days. 'A drummer or commercial traveler' is defined by the ordinance as follows:

'All persons who shall go about, from place to place, within the corporate limits of the city of Portland, soliciting the purchase of goods, wares, or merchandise, or offering to sell, barter, or deliver any goods, wares, or merchandise, by sample or otherwise, are hereby defined (declared) to constitute drummers and commercial travelers.'

Notice of the application was required to be given to the city attorney, who appeared and contested the right to the writ.

A tax or charge for a license to sell goods is, in effect, a tax on the goods themselves. Welton v. Missouri, 91 U.S. 278. It is now well settled that a tax imposed by a state, directly or indirectly, on the products of another state, when brought within its limits, or offered for sale therein, which in effect discriminates against said products, and in favor of those of the state imposing the tax, is a regulation in restraint of commerce among the states, and as such is a usurpation of the power conferred on congress by the constitution of the United States. Ward v. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U.S. 275; Guy v. Baltimore, 100 U.S. 434; Walling v. Michigan, 116 U.S. 446; S.C. 6 S.Ct. 454. On the other hand, where the tax or charge is imposed equally on the products of the state imposing it and those introduced from other states, the law or ordinance imposing the same is not a regulation of commerce, but only a legitimate exercise of the taxing power of the state. Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, Id. 148; In re Rudolph, 6 Sawy. 295; S.C. 2 F. 65; Ex parte Robinson, 12 Nev. 263.

On its face this ordinance makes no discrimination between the products of this state and any other state or country. 'All persons' who engage in the business of going about from place to place within the city soliciting the purchase of goods, without any reference to the place of their production or manufacture, are required to take out the license and pay the tax. The agent of the cracker company of Portland and the cracker company of Seattle are each included in the terms of the ordinance, and alike punishable for its violation.

But admitting this, counsel for the petitioner insist that this ordinance does in fact discriminate against the Seattle cracker company, because the Portland cracker company, having a place of business in the city, does not have the same need for an agent to go from house to house and take orders for goods, and therefore is not likely to employ one, and may thus escape the payment of the tax. A court will look behind or beyond the mere words of a statute, however chosen or arranged, to see if, in its actual operation, it must necessarily result in discrimination. But this ordinance is not obnoxious to the charge of discrimination in its operation because, under the circumstances, the Seattle company is more likely to employ a drummer than the Portland one. Indeed, this very argument seems to have been considered by the supreme court in the analogous case of Hinson v. Lott, supra. In that case a statute of Alabama imposing a tax on dealers in spirituous liquors of 50 cents a gallon on each gallon offered for sale within the state, and brought there from without it, was held valid, because the statute also provided that a tax of 50 cents a gallon should be paid by the Alabama distiller on each gallon of whisky and brandy manufactured in the state from fruit. The tax on the distiller was considered the equivalent of that imposed on the dealer, so that there was no discrimination against the latter, neither in purpose nor effect. The terms 'whisky' and 'brandy' were considered the equivalent of 'spirituous liquors,' and it was assumed that they were not manufactured in Alabama from any article but 'fruit.' Mr. Justice NELSON dissented from the opinion of the court in this and the preceding case of Woodruff v. Parham, supra, and, in the course of his opinion, sought to maintain that the Alabama statute, however well intended or phrased, did, by reason of the peculiar circumstances of the case, operate unequally, and result in a discrimination against the spirituous liquors not produced in the state. By way of illustration, he said, (8 Wall. 146:)

'Alabama is a cotton-growing state, and depends upon the northern states bordering on the Mississippi and the Ohio for most of her corn, wheat, and flour. She cannot, therefore, be a state largely engaged in the manufacture of whisky. The tax, so far as regards her own people, is probably nearly nominal.'

But the doctrine of the cases appears to be that so long as the...