Frank Kehrer v. Andrew Stewart

• Decision Date: 27 February 1905
• Docket Number: No. 152,152
• Citation: 49 L.Ed. 663,197 U.S. 60,25 S.Ct. 403
• Parties: FRANK E. KEHRER, Plff. in Err. , v. ANDREW P. STEWART
• Court: U.S. Supreme Court

197 U.S. 60

25 S.Ct. 403

49 L.Ed. 663

FRANK E. KEHRER, Plff. in Err.,

v ANDREW P. STEWART.

No. 152.

Argued January 24, 25, 1905.

Decided February 27, 1905.

Mr. Alexander W. Smith for plaintiff in error.

This was an action by Kehrer against the tax collector of the county of Fulton to recover back a tax of $200, with interest and costs, paid to Stewart under protest, such tax having been assessed against him under the general tax law of the state, of December 21, 1900, which provided that there should be assessed and collected 'upon all agents of packing houses doing business in this state, $200 in each county where said business is carried on.' Petitioner charged the law to be a violation of the 14th Amendment.

Defendant demurred to the petition, and this demurrer being overruled, a writ of error was taken from the supreme court, which reversed the judgment of the court below in overruling the demurrer. 115 Ga. 184, 41 S. E. 680. Plaintiff thereupon amended his petition, insisting that the tax denied him due process of law as well as the equal protection of the law, impaired the obligation of his contract with the firm, and was also in conflict with the commerce clause of the Constitution of the United States. The defendant demurred to the amended petition. The court sustained the demurrer and the supreme court affirmed its action. 117 Ga. 969, 44 S. E. 854.

[Argument of Counsel from pages 61-63 intentionally omitted] Mr.John C. Hart for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

This case arose upon the following state of facts:

Nelson Morris & Co., citizens of Illinois, were engaged, in the city of Chicago, in the business of packing meats for sale and consumption, and also had a place of business in Atlanta, Georgia, where they sold their products at wholesale, having in their employ several clerks and helpers, one of whom was the petitioner, who was employed as chief clerk and manager at a salary of $25 per week. The firm did not have anywhere within the state of Georgia any packing house for slaughtering, dressing, curing, packing, or manufacturing the products of any animals for food or commercial use, but took orders, which were transmitted and filled at Chicago, the meats sent to Atlanta, and there distributed in pursuance of such orders. Certain meats were also shipped from Chicago to Atlanta without a previous sale or contract to sell. These were stored in the Atlanta house of the firm in the original packages, and were kept and held for sale, in the ordinary course of trade, as domestic business. They were offered for sale to such customers as might require them, and until sold were stored and preserved and remained the property of the firm.

1. It was admitted by the supreme court of Georgia, in its opinion, and by both parties hereto, that a tax upon the seller of goods is a tax upon the goods themselves (Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347), and that a tax upon goods sold in another state, delivered to a common carrier, and consigned to the purchaser in the state of Georgia, was an illegal interference with interstate commerce. Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Norfolk & W. R. Co. v. Sims, 191 U. S. 441, 48 L. ed. 254, 24 Sup. Ct. Rep. 151; Stone v. State, 117 Ga. 292, 43 S. E. 740. It was therefore held that the tax, so far as applied to meats sold in Chicago, and shipped to the petitioner in Georgia for distribution, could not be supported; but that so far as the petitioner was engaged in the business of selling directly to customers in Atlanta, he was engaged in carrying on an independent business as a wholesale dealer, and was liable to the tax.

This decision was correct. In carrying on the domestic business, petitioner was indistinguishable from the ordinary butcher, who slaughters cattle and sells their carcasses, and in principle it made no difference that the cattle were slaughtered in Chicago and their carcasses sent to Atlanta for sale and consumption in the ordinary course of trade. Upon arrival there they became a part of the taxable property of the state. It made no difference whence they came and to whom they were ultimately sold, or whether the domestic and interstate business were carried on in the same or different buildings. In this particular the case is covered by that of Brown v. Houston, 114 U. S. 622, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091, wherein it was held that coal mined in Pennsylvania and sent by water to New Orleans, to be sold in open market there on account of the owners in Pennsylvania, became intermingled with the general property of the state, and liable to taxation under its laws, although it might have been after arrival sold from the vessel on which the transportation was made, without being landed, and for the purpose of being taken out of the country on a vessel bound to a foreign port. The same principle was applied in Emert v. Missouri, 156 U. S. 296, 39 L. ed. 430, 5 Inters. Com. Rep. 68, 15 Sup. Ct. Rep. 367, in which a license tax upon peddlers of goods, which made no distinction between residents and products of the state and of those of other states, was sustained. To the same effect is Howe Mach, Co. v. Gage, 100 U. S. 676, 25 L. ed. 754.

The case is readily distinguishable from that of Crutcher v. Kentucky, 141 U. S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851, wherein a state law requiring a license from agencies of foreign express companies was held to be a regulation of interstate commerce, so far as applied to a corporation of another state engaged in interstate business, although as incidental thereto it did some local business by carrying goods from one point to another in the state of Kentucky. The court observed that while the local business was probably quite as much for the accommodation of the people of the state as for the advantage of the company, this did not obviate the objection to the tax; that the regulations as to license and capital stock were imposed as conditions on the companies carrying on the business of interstate commerce, which was manifestly the principal object of its organization. 'These regulations are clearly a burden and a restriction upon that commerce. Whether intended as such or not, they operate as such. But taxes or license fees in good faith imposed exclusively on express business carried on wholly within the state would be open to no such objection.'

The same doctrine was applied to telegraph companies in Leloup v. Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380, wherein a general license tax upon the telegraph company was held to affect its entire business, interstate as well as domestic or internal, and was unconstitutional. This case, however, must be read in connection with the Postal Teleg. Cable Co. v. Charleston, 153 U. S. 692, 38 L. ed. 871, 4 Inters. Com. Rep. 637, 14 Sup. Ct. Rep. 1094, wherein we held that a license tax upon a telegraph company on business done exclusively within the state, and not including any business done to or from points without the state, and not including any business done for the government of the United States, was an exercise of the police power, and not an interference with interstate commerce. In line with this case is that of Ratterman v. Western U. Teleg. Co. 127 U....