In re Kinyon

• Citation: 9 Idaho 642,75 P. 268
• Parties: IN RE KINYON
• Decision Date: 17 February 1904
• Court: United States State Supreme Court of Idaho

75 P. 268

9 Idaho 642

IN RE KINYON

Supreme Court of Idaho

February 17, 1904

INTERSTATE COMMERCE-LICENSE TAX ON SOLICITORS-RESTRAINT OF TRADE AND COMMERCE.

1. A law requiring solicitors taking orders for goods and merchandise to obtain a license and pay a tax therefor is in violation of the third clause of section 8, article 1 of the constitution of the United States, when applied to persons acting as agents and solicitors for citizens of other states in the sale of property not at the time within this state.

2. A manufacturer of goods who carries on his business of manufacturing in another state may send his agents into this state to solicit orders for the products of his manufactory without paying to the state a license tax therefor, and he is protected in so doing by the federal constitution.

3. Act of March 16, 1901, providing for licensing of peddlers hawkers and solicitors taking orders for goods, is unconstitutional, and an unwarranted interference with interstate commerce, in so far as it attempts to impose such burden upon the authorized solicitors and agents of citizens of other states trying to introduce and sell their goods in this state.

4. Where the property, prior to the sale, has been transported to this state, and becomes subject to the jurisdiction thereof, a contract concerning the same does not look to interstate transportation for its consummation, and is subject to state regulations and control.

(Syllabus by the court.)

ORIGINAL petition by Irven Kinyon for a writ of habeas corpus. By consent, writ waived and petitioner discharged.

Forney & Moore, for Petitioner.

This case involves the constitutionality of the act of March 16 1901, Sixth Session Laws of Idaho page 159, to provide for the licensing of peddlers, hawkers and solicitors, and prescribing penalty for failure to comply with the provisions of this act. Section 8 of this act provides that the same shall not be construed to apply to runners traveling for wholesale houses and taking orders for merchants only, nor to peddlers or hawkers in farm products. The applicant for this writ was convicted of the violation of this act in selling stoves and ranges manufactured in the state of Missouri. It is contended on the part of the petitioner that this act is in violation of the federal constitution, in that it is a regulation of commerce, control over which is by the supreme law of the land vested in Congress. It is further contended that a sale, by sample or otherwise, of goods not yet brought into the state, and owned by a nonresident, cannot be subject to a state tax or license fee, as that would constitute a regulation of interstate commerce. (Stockard v Morgan, 185 U.S. 27, 22 S.Ct. 576, 46 L.Ed. 785, also see exhaustive note in which all of the recent cases are decided; Caldwell v. North Carolina, 187 U.S. 622, 23 S.Ct. 229, 47 L.Ed. 336; Norfolk & Western Ry. Co. v. Sims, 191 U.S. 441, 24 S.Ct. 151, 48 L.Ed. 254; State v. Hickox, 64 Kan. 650, 68 P. 35; Ex parte Hough, 69 F. 330; Ex parte Thomas, 71 Cal. 204, 12 P. 53.) It is further contended that section 8 of the act hereinbefore referred to is repugnant to section 5 of article 8 of the constitution of Idaho. (French v. Teschemaker, 24 Cal. 518; People v. Judge, 17 Cal. 547.)

John A. Bagley, Attorney General, and W. E. Stillinger, for the State, file no brief.

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

The petitioner has made an original application in this court for a writ of habeas corpus, and alleges that he is illegally and wrongfully imprisoned and detained under a charge of soliciting orders within this state for wrought iron ranges, manufactured by the Wrought Iron Range Company of St. Louis, Missouri, to be shipped into this state under such orders and contracts. It appears that the petitioner, a resident of the state of Washington, was soliciting orders from a price list and by sample carried with him by horse and cart, and that he had no interest in the goods for which he was soliciting orders, but that the same are manufactured and kept in the state of Missouri, and that upon the forwarding of such orders the goods are thereupon shipped to the agent for delivery. No license was ever secured for this purpose as required by act of March 16, 1901 (Sess. Laws 1901, p. 555), and the petitioner was accordingly arrested for a violation of that act, in that he solicited orders without first procuring a license as required by law. The provisions of the act involved in this case are as follows:

"Section 4. License. Each peddler or solicitor taking orders for groceries, clothing, hardware, or other mercantile establishments shall pay a license of not less than seventy-five ($ 75) dollars, nor more than one hundred and twenty-five ($ 125) dollars per year."

"Section 8. Applicable when. The provisions of this act shall not be considered to apply to runners traveling for wholesale houses and taking orders from merchants only, nor to peddlers or hawkers in farm products."

Section 9 of the act makes its violation a misdemeanor and punishable by fine or imprisonment in case of failure to pay such fine.

The prisoner was tried and convicted in the justice's court in and for Latah county, and a fine was thereupon imposed, and on failure to pay the same he was committed to the custody of the sheriff of Latah county. Upon the trial in the justice's court the prosecuting attorney for Latah county and the attorneys for the prisoner entered into an agreed statement of facts which purports to embody all the material facts in the case, and is as follows:

"The Wrought Iron Range Company is a corporation duly organized and existing under the laws of the state of Missouri and are manufacturers and wholesale dealers in stoves and ranges in the city of St. Louis, in the said state of Missouri, and with no place of business in the state of Idaho.

"That the defendant herein is the duly authorized soliciting agent of the said Wrought Iron Range Company, for the sale of stoves and ranges in the state of Idaho and that, as such agent and solicitor, the defendant herein has engaged in the business of selling and offering to sell, stoves and ranges in the said state of Idaho by sample and by list; that on the second day of February, A. D. 1904, the defendant, as such agent, solicitor and representative of the said Wrought Iron Range Company, sold, by sample and by list, a certain stove and range of the said Wrought Iron Range Company to one E. C. Lloyd, in said county of Latah, state of Idaho.

"That neither the defendant nor the said Wrought Iron Range Company paid any tax or procured a license from the county auditor of Latah county before engaging in said business, and making said sale, as required by the act of March 16, 1901, Sixth Session Laws, page 155.

"That prior to the commencement of this action, the board of county commissioners of Latah county fixed the license under the act hereinbefore referred to as follows: Peddler or hawker, on foot, $ 25 per year; peddler or hawker, with wagon, $ 50 per year; peddler or solicitor taking orders for groceries, clothing, hardware or other merchandise, $ 100 per year."

By agreement of the respective counsel for the petitioner and the state, two questions have been submitted to the court as the leading and controlling questions which determine the issue as to whether or not the petitioner is entitled to his discharge. They are: "1. Is the act of March 16, 1901, Sixth Session Laws, page 155, providing for the licensing of peddlers, hawkers and solicitors in contravention of section 8, article 1 of the constitution of the United States? 2. Is section 8 of the said act of March 16, 1901, unconstitutional and void in this: that it is not uniform and discriminates unjustly against this defendant?"

The controlling question in this case is: Does the act of March 16, 1901, conflict with section 8, article 1 of the federal constitution, in that it affects or interferes with interstate commerce? It appears to us that this act in no way interferes with the interstate commerce provisions of the constitution, unless it be in so far as it has the effect of imposing a license tax upon agents or solicitors who obtain orders within this state for goods manufactured and owned by citizens of other states. This question has been so repeatedly discussed and passed upon by the supreme court of the United States that any discussion thereof by us is entirely obviated, and we will therefore content ourselves with a review of some of the leading authorities from that court in order that we may arrive at their ultimate conclusion in the premises.

Robbins v. Taxing District of Shelby County, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694, is one of the leading authorities on this question, and has perhaps been cited more frequently than any other case on the particular question here involved. That was a prosecution against Robbins for drumming or soliciting orders by samples within the taxing district of Shelby county, Tennessee, for a firm doing business in Cincinnati, Ohio, without having procured a license for carrying on such business or trade as required by a statute of the state of Tennessee, imposing a license on drummers and other persons selling goods by sample or otherwise for carrying on such business or occupation. The...