In re Nichols

• Decision Date: 06 November 1891
• Parties: In re NICHOLS.
• Court: U.S. District Court — Western District of Pennsylvania

48 F. 164

In re NICHOLS.

United States Circuit Court, W.D. Pennsylvania.

November 6, 1891

Joseph R. McQuaide, for petitioner.

George A. Chase, for the city of Titusville.

REED J.

The petition of Charles D. Nichols states that he is a citizen of the state of New York, and is the agent and employe of P. T Collier, a citizen of the state of New York; that his business, as such employe and agent, is that of soliciting orders for the sale of books and periodicals published by said Collier in the city of New York, where all orders for books and periodicals taken by the petitioner for his employer are sent to be filled, and the goods are subsequently delivered by said Collier on such terms and conditions as meet his approval; that on October 3, 1891 while engaged in the business of soliciting orders for the sale of books and periodicals in the manner aforesaid in the city of Titusville, in the state of Pennsylvania, he was arrested upon a charge of violation of an ordinance of that city, requiring the payment of a license fee for the privilege of pursuing his business, as aforesaid, in the city, and, after a hearing, was sentenced to pay a fine of $78 and costs, and in default of payment was imprisoned. At the hearing upon the petition the facts developed were substantially as stated in the petition, except that it appeared that Mr. Collier, the employer, had a branch office or store-room in the city of Pittsburgh, from which he sent out the books which were needed to fill the orders taken by the canvassers. As needed to replenish the stock in the branch office in Pittsburgh, Mr. Collier shipped books from time to time from his main office or store-house in New York city. The ordinance in question provides--

'That all persons canvassing or soliciting within said city orders for goods, books, paintings, wares, or merchandise of any king, or persons delivering such articles under orders so obtained or solicited, shall be required to procure from the mayor a license to transact said business, and shall pay to the said treasurer therefor the following terms according to the time for which said license shall be granted, viz.: For one day, one dollar and fifty cents; for one week, five dollars; for three months, ten dollars; and for one year, twenty-five dollars: provided, that the provisions of this ordinance shall not apply to persons selling by sample to manufacturers or licensed merchants or dealers residing or doing business in said city.'

By a supplement the ordinance was amended in an immaterial matter relating to the amount of the license fee for one year.

In Robbins v. Taxing Dist., 120 U.S. 489, 7 S.Ct. 592, the statute of Tennessee in question provided that all drummers, and all persons not having a regular licensed house of business in the taxing district of Shelby county, offering for sale, or selling, goods by sample, should pay a certain sum per week or per month for such privilege. The supreme court held that, so far as applied to persons soliciting the sale of goods on behalf of individuals or firms doing business in another state, it was a regulation of commerce among the states, and violated the provisions of the constitution of the United States, which grants to congress the power to make such regulations.

In the case of Leloup v. Port of Mobile, 127 U.S. 640, 8 S.Ct. 1380, the supreme court say:

'In our opinion, such a construction of the

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