French v. State

• Decision Date: 17 October 1900
• Citation: 58 S.W. 1015
• Parties: FRENCH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1015

58 S.W. 1015

FRENCH v. STATE.

Court of Criminal Appeals of Texas.

October 17, 1900.

Appeal from Mills county court; John M. Furman, Judge.

J. A. French was convicted of peddling with horses without having paid an occupation tax, and he appeals. Reversed.

Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted under the law authorizing an occupation tax of peddlers with two horses, and his punishment assessed at a fine of $10. Appellant presents several assignments, but it is only necessary to consider one, to wit, that the proof showed that, as a peddler, he was engaged in the sale of property which was protected by the constitution of the United States as interstate commerce, and that the state had no authority to require him to pay a tax. The proof shows that defendant was the agent of the Estey Organ Company, of St. Louis, Mo., and his method of selling the organs was as follows: He traveled in a two-horse hack all over Mills county, Texas, taking an organ along with him, and whenever he made a sale of the same style organ as he carried he delivered it at once to the party who purchased. If the party wanted a different style organ than the one he carried with him, he made a contract, and sent the order in to the St. Louis house, and the organ is shipped to defendant, who takes it in person upon his said two-horse wagon or hack, and delivers it at the residence of the purchaser, receiving therefor money and notes payable to the company, which said notes were always forwarded to the company. The defendant guarantied the notes which he took in favor of the company. It seems, if the purchaser so desired, the instrument would be shipped direct to the purchaser. The proof further showed, in regard to the sale of the organ in this case, that defendant came to the house of Willett Johnson, in Mills county, Texas, on July 12, 1899, driving a pair of horses to a hack, and represented his business as an organ dealer, and sold to witness an organ, telling witness that he had the organ at the residence of a certain man living seven or eight miles distant, in Hamilton county. A few days later defendant brought the organ to witness' house in Mills county, delivered it to the purchaser, who settled for the same in cash and notes; the notes being made payable to the Estey Organ Company, St. Louis, Mo. The question thus presented is, was the sale here made of property subject to interstate commerce? For, if it was, it is conceded that the state had no authority to tax the peddler engaged in interstate commerce, either directly on the goods sold or by indirection on his occupation of selling such property while it was under the protection of the constitution as interstate commerce. See Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368; Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347. It is also conceded that the organ in question was protected from any interference by the state during its transit from St. Louis, Mo., up to the time of its arrival at its destination in the state of Texas. If it had been previously sold, it would be protected until its delivery to the purchaser. If it had not been sold, it would be protected up to the time of its arrival in the warehouse or depository of the manufacturer, if he had one in this state; and the later decisions hold that it would be equally protected after its...