Kansas City v. McDonald

• Decision Date: 02 March 1915
• Docket Number: No. 16835.,16835.
• Citation: 175 S.W. 917
• Parties: KANSAS CITY v. McDONALD.
• Court: Missouri Supreme Court

175 S.W. 917

KANSAS CITY v. McDONALD.

No. 16835.

Supreme Court of Missouri, Division No. 1.

March 2, 1915.

Motion to Transfer to Court in Banc Denied April 1, 1915.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Action by Kansas City against. John W. McDonald. From a judgment for plaintiff, defendant appeals. Reversed.

George A. Neal, of Kansas City, for appellant. A. F. Evans, City Counselor, and Jay M. Lee, Asst. City Counselor, both of Kansas City, for respondent.

BROWN, C.

This suit is founded upon an ordinance of Kansas City to recover a fine alleged to have been incurred by defendant by engaging in the occupation, calling, and trade of merchandise broker without first having procured a license to do so. The ordinance prescribed a fee of $25 per year for the license and imposed a fine of not less than $10 nor more than $500 for engaging in the occupation without it. It contained the following definition:

"A merchandise `broker' is any person, firm, or corporation having an office or place of business in Kansas City, and selling merchandise or goods of any kind by sample."

The city had judgment for 5200, from which this appeal was taken. The cause was tried upon the following agreed statement of facts:

"(1) The defendant, John W. McDonald, is in the employ of the Van Camp Packing Company, a corporation organized under the laws of the state of Indiana, and a resident of the city of Indianapolis, Ind., and that it Lever had a residence in the state of Missouri; that this company is engaged in the manufacture of meats, fruits, and vegetables which it packs into cans to be supplied to the trade throughout the country; and that the same are sold and shipped to other states and countries than the state of Indiana, in interstate commerce.

"(2) That for many years defendant McDonald was engaged by the Van Camp Packing Company as a traveling salesman, popularly known as a `drummer,' and as the territory where the defendant was assigned was in the West, comprising the states of Missouri, Kansas, Oklahoma, Nebraska, South Dakota, and parts of Illinois and Kentucky, and other states, he purchased a home at Kansas City, Mo., and removed to Kansas City with his family, and went out from that point to visit the territory assigned to him and sold the goods of the Van Camp Packing Company. The sales were made to the jobbers or wholesale dealers by taking orders for the goods, which orders were forwarded to the Van Camp Company, at Indianapolis, to be filled. The defendant had nothing further to do with the sales. If the orders were filled the goods were shipped and the collections made by the Van Camp Company.

"(3) The defendant found the business in this territory more than he could personally transact himself, and he organized a force of men for the Van Camp Company, who reported to him, and who went out from Kansas City. Mo., to parts of the territory that would be designated by defendant. Each of the men employed by him, however, took orders for goods and sent the same to the Van Camp Company at Indianapolis through the defendant to be filled and shipped, as heretofore shown. For many years the defendant had these men report to him for' duty at his residence in Kansas City. Mo., but after a time, as he added to the number of men from time to time, he obtained an office down town, where these men reported and got their instructions and directions to go upon the road, and at this time there is employed some 27 salesmen under the immediate direction and instruction of the defendant, 4 of whom were assigned to the territory of Kansas City, Mo., and Kansas City, Kan., the balance of the force to other parts of the territory above shown. The salesmen who have to do with sales to jobbers and wholesale dealers in Kansas City, Mo., and Kansas City, Kan., occasionally when the wholesaler declines to give orders for goods on account of dullness of business, have gone out to the trade and taken orders for goods to be filled by the local wholesale dealers, and these orders were presented to the local wholesale dealers as evidence that there is a demand for goods. The only inducement on the part of the Van Camp salesmen is to induce the local wholesale dealer to give orders to the Van Camp Company for goods. These occasional soliciting of orders from the local retail dealers, to be filled by local wholesale dealers by the salesmen working under the defendant, are entirely gratuitous, without compensation either from the Van Camp Company, from defendant, or from the wholesale dealers, but are inspired simply as a means of influencing the local wholesale dealer to give orders. The defendant and all of the men employed by him, or working under his directions and instructions, as heretofore shown, are on salary paid by the Van Camp Packing Company. The defendant himself is on a salary of $10,000 per annum, and the compensation of the men working under his instructions are paid different salaries, according to their experience, and according to contract made by them with the defendant for said Van Camp Company. The defendant, as he understands the matter, is merely a salesman for the Van Camp Packing Company, of Indianapolis, Ind., with authority to employ the necessary men to aid him in canvassing the territory for the Van Camp Company and to instruct them and superintend and systematize their labors.

"(4) The goods were sold by sample, and the orders taken by the defendant and the men working under his directions were sent to the company for which they worked, i. e., the Van Camp Packing Company, at Indianapolis, which company had the right to accept or reject the order. If the order was accepted, the company shipped the goods to the purchaser and collected the purchase money for the same, otherwise than through the defendant.

"(5) In the conduct of his business in Kansas. City, Mo., the salesmen under defendant's control go to the local retailer and take orders for the goods of the Van Camp Packing Company, using samples of the goods sought to be sold to secure the order, and after the order is secured the salesman asks the retailer with which local wholesaler or jobber he would like to have the order placed, and the order is placed with the jobber so designated."

The only question is whether the sale of the goods as described in the statement was exclusively "commerce among the several states." If it was, it is not denied that the imposition of the tax was in violation of the interstate commerce clause of the federal Constitution, and the judgment should be reversed. Otherwise it should stand.

As was said by the Supreme Court of the United States in Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649:

"To carry on interstate commerce is not a franchise or a privilege granted by the state; it is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States."

It does not depend upon the license or permission of the state in which it is done, because it is within the province of national and not of state legislation. The word "commerce," as used in the provision of the Constitution we are considering, is not confined to mere buying and selling, but, as was said by Chief Justice Marshall in the case of Gibbons v. Ogden, 9 Wheat. 1, 189 (6 L. Ed. 23): "It is something more; it is intercourse." It not only includes traffic, or buying and selling, but all those means and methods of intercourse which are necessary to the commercial unity of the nation. It includes the transportation, with all its means and facilities, not only of the property in...