Garbutt v. State

• Decision Date: 07 January 1918
• Citation: 116 Miss. 424,77 So. 189
• Court: Mississippi Supreme Court
• Parties: GARBUTT v. STATE

77 So. 189

116 Miss. 424

GARBUTT v. STATE

Supreme Court of Mississippi

January 7, 1918

October 1917

Division B

APPEAL from the circuit court of Stone county, HON. JAMES NEVILLE Judge.

W. H Garbutt was convicted of violation of chapter 94, Laws 1912 and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Mize & Mize, for appellants.

We submit that said act under which appellant was arrested is in violation of the Constitution of the United States and acts of Congress, and that a peremptory instruction should therefore have been given the defendant.

Chapter 94, Acts of 1912, provides that each emigrant or employment agent, or person engaged in hiring laborers or soliciting emigrants or laborers to go beyond the limits of the state, must pay an annual license of five hundred dollars in every county where he operates or solicits emigrants or laborers to go beyond the limits of the state, must pay an annual license of five hundred dollars in every county where he operates or solicits emigrants or laborers, to be paid into the state or treasury.

This statute is manifestly unconstitutional in that it imposes a tax on interstate commerce. The carrying of persons or providing for the carrying of persons from one state to another is interstate commerce. No state can impose a tax on the transportation of persons or goods by interstate railways or other lines of interstate travel, or upon the occupation or business of carrying on interstate commerce or the offices or agencies of railways and other companies engaged in it. Black's Constitutional Law, p. 246.

The business of an agent, being to solicit passenger traffic out of California into and through other states to New York is a part of interstate commerce, which cannot be restricted or taxed by law. McCall v. Proxee of Cal., 136 U.S. 104, 34 Law Ed. 391. We see no difference between this California case and the instant case.

The absence of legislation by Congress will not give a state power to regulate or tax or to impose any other restriction upon the transmission of property or telegraphic messages from one state to another. Wabash, etc., Ry. v. Illinois, U. S. S.Ct. 30 Law Ed. 244.

A state statute imposing a capitation tax on every person leaving a state by any railroad or stage coach, to be paid by the railroad companies and stage coach proprietors is invalid, as infringing the rights of citizens of the United States to pass and re-pass through every part of the country. Crandall v. Nevada, 6 Wall. 835 U. S. Supreme Ct. Rep., 18 Law Ed. 745.

It makes no difference as to the validity of a tax on interstate commerce whether the commerce is carried on by an individual or a corporation. Gloucester Ferry Co. v. Penn, U. S. S.Ct. Rep., 29 Law Ed. 158. A state law which requires a party to take out a license for the carrying on of interstate commerce is unconstitutional and void. Crutcher v. Kentucky, U. S. S.Ct. Rep., 35 Law Ed. 649.

When a law of a state imposes a license tax on boats under such circumstances and with such effect as to constitute a regulation of commerce, either foreign or interstate, it is void on that account. Moran v. New Orleans, U. S. Sup. Ct., 28 Law Ed. 653. A state is without authority to impose a tax or other restriction upon the transmission of persons or property or telegraphic messages from one state to another. U. S. S.Ct. Rep., 30 Law Ed. 244. The right to solicit or take orders for interstate business is part of interstate commerce and not subject to state regulation. Vance v. Vandercook Co., U. S. S.Ct. 42 Law Ed. 1100.

The several states may not lay any restrictions upon immigration. It is not within the power of any state to impose taxes on such immigration or upon the masters of or owners of vessels bringing foreigners into their ports, for the privilege of so doing, or upon the aliens themselves. Such a tax would be an unlawful regulation of foreign commerce. Black on Constitutional Law (3 Ed.), Hornbook Series, p. 228; U. S. S.Ct. 12 Law Ed. 702. A license cannot be required by a state of an agent whose business is to solicit passenger traffic for an interstate carrier. U. S. S.Ct. Rep., 34 Law. Ed. 391.

The court will see, from the above authorities, that the transportation of persons from one state to another is as much interstate commerce as the transportation of commodities or other property, and a reading of said authorities will show that it is wholly beyond the power of a state to pass a law requiring license from any person desiring to carry on such business. This statute plainly imposes a tax on the business of a person engaged in interstate commerce.

Furthermore we submit that said statute is absolutely void because the license fixed is unreasonable, a privilege tax must be reasonable. Joseph v. Randolph, 46 Am. St. Rep. 347, 71 Ala. 499.

In the face of this decision we cannot see how the court can escape the conclusion that the act under which appellant was tried is unconstitutional and void. This decision is authority for both of our contentions: (1) it is a tax on interstate commerce, and (2) the amount of license required is prohibitory.

Earl Floyd, assistant attorney-general, for the state.

The appellant contends that the said act is unconstitutional for the double reason that it constitutes an interference with interstate commerce, and also that the tax of five hundred dollars is prohibitory and void. In support of his contention he cites several cases touching only indirectly on the question involved, and, therefore. I will not burden the court in pointing out the obvious inapplicability of the various decisions cited by him, but will rest the state's case on a few decisions absolutely pertinent to the issue involved.

In the case of Williams v. Fears, 179 U.S. 270, 45 L.Ed. 199 (1900), affirming 110 Ga. 584, 35 S.E. 699, 50 L. R. A. 685 (1900), a similar statute of the state of Georgia imposing a license tax on emigrant agents engaged in the business of hiring persons to labor outside of the state was held not to be a burden on interstate commerce. The above case was followed under like conditions in State v. Napier, 63 S.C. 60, 41 S.E. 10 (1902): State v. Hunt, 129 N.C. 686, 40 S.E. 216, 85 Am. St. Rep. 758, 1901. While in the case of Williams v. Fears, supra, the question of the tax being prohibitory was not presented, yet FULLER, C. J., seized the occasion to anticipate such an attack by saying:

"The amount of the tax imposed on occupations varies with the character of the occupation. Dealers in futures are compelled to pay one thousand dollars annually for each county in which the business is carried on; circus companies exhibiting in cities or towns of twenty thousand inhabitants or more, one hundred dollars each day of exhibition;...