Ex parte Murray

• Decision Date: 12 February 1891
• Citation: 93 Ala. 78,8 So. 868
• Parties: EX PARTE MURRAY.
• Court: Alabama Supreme Court

8 So. 868

93 Ala. 78

EX PARTE MURRAY.

Supreme Court of Alabama

February 12, 1891

Application for writ of habeas corpus.

John Gindrat Winter and A. A. Wiley, for petitioner.

W. L. Martin, Atty. Gen., for the State.

PER CURIAM.

The petitioner, having been arrested under warrant charging him with the offense of peddling without a license, and having been committed to prison by the magistrate, applied to the judge of the city court of Montgomery to be discharged on habeas corpus. The judge refused to discharge him, and thereupon he renews his application to this court. The agreed facts are that petitioner, who resides in the state of Georgia, is the agent and representative of William Erskine, who deals in what is commonly known as "peddlers' goods," and who resides and is doing business in Atlanta, Ga.

The petitioner's mode of doing business is as follows: He goes from place to place, and from house to house, carrying his samples in a pack on his back, sells by samples, and afterwards sends his orders to Erskine, who forwards to him goods to fill the orders, and petitioner delivers the goods in person, and collects the money therefor, charging a commission. We are unable to distinguish this case in principle from the case of State v. Agee, 83 Ala. 110, 3 South. Rep. 856. In that case it was held that the provision of the revenue law, imposing a license tax on "itinerant dealers in fruit-trees, vines, or shrubs, or plants of any kind," so far as it applies to a foreign traveling agent selling goods by sample for a non-resident individual or firm doing business in another state, is an attempted regulation of commerce, and unconstitutional. That case followed the decision in Robbins v. Shelby Co. Taxing Dist., 120 U.S. 489, 7 S.Ct. 592, which was regarded as binding on this court. In the case last referred to the supreme court of the United States decided that a state statute, requiring all drummers soliciting orders for the sale of goods to pay a tax for such privilege, so far as it applies to persons soliciting such orders on behalf of non-resident individuals or firms, is a regulation of commerce among the states, and violates the provision of the constitution which grants to congress the power to make such regulations. The writ of habeas corpus will be awarded, unless the petitioner is content to renew his application to a court or judge of primary jurisdiction.