Kehrer v. Stewart
| Decision Date | 30 May 1903 |
| Parties | KEHRER v. STEWART. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A legislative act which imposes a specific tax on certain business occupations, and which does not become operative until the commencement of the year following its passage, is not retroactive or violative of that section of the federal Constitution which forbids a state's passing any ex post facto law, or law impairing the obligation of contracts.
2. A tax on the privilege of selling goods is, in effect, a tax on the goods themselves.
3. One who, in this state, as the agent of a principal residing in another state, takes orders on such principal for the purchase of goods held in such other state, and who, when the goods are shipped by his principal to him, receives them in this state, and delivers them in the original packages to the customers from whom he obtained the orders, and upon delivery receives from them the price of the goods, is engaged in interstate commerce.
4. When goods, the property of a resident of another state, are shipped from that state to the owner's place of business in this state, there to be stored and offered for sale in open market by his agent, the business of selling them in this state is not interstate commerce, but is subject to taxation by the state.
(a) The Constitution of the United States protects such goods only to the extent of preventing state legislation which imposes on them, because of their origin, burdens which are not imposed upon goods the product of the state imposing such burdens.
5. One who is subject to a specific occupation tax by reason of his conducting, for another, a domestic business within this state, is not rendered exempt from such tax because he also conducts for the same principal other business which is not subject to state taxation.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by F. E. Kehrer against A. P. Stewart. Judgment for defendant, and plaintiff brings error. Affirmed.
Smith Hammond & Smith, for plaintiff in error.
Black & Jackson, for defendant in error.
Suit was brought by Kehrer against Stewart in the city court of Atlanta. This suit was based upon the exaction by the defendant, who was tax collector of the county, of a specific tax assessed against petitioner as agent in Fulton county "of Nelson Morris & Co., a packing house doing business in this state." This tax was alleged to be illegal and void as applied to the petitioner, who had paid it under protest and to prevent the immediate seizure of his property and person. A demurrer to the petition was overruled, and Stewart brought the case to this court, where the judgment was reversed. An amendment to the petition was then made in the lower court and allowed. The demurrer was renewed, and the court sustained the same. To this judgment Kehrer excepted.
The substance of the original petition is stated in 115 Ga. 184 41 S.E. 680. The amendment, without stating any new facts pertinent thereto, contained several reasons or arguments to show that the exaction of the tax from the petitioner was contrary to the fourteenth amendment to the Constitution of the United States, in that it deprived him of his property without due process of law, was a denial to him of the equal protection of the laws, and abridged his privileges, and also to show that the act imposing this tax was violative of the Constitution of this state, in that the tax was not uniform but based upon an unjust and arbitrary classification. With these questions we do not now deal. They were raised and passed upon when the case was here before, and have been adjudicated against the petitioner. He cannot review the former decision, or reopen a binding adjudication by adding to his petition a detailed argument of the points already made and decided. We shall therefore confine our discussion to the questions made by the amendment which were not passed upon before, and which are therefore not res judicata. These questions are (1) whether the act imposing the tax is ex post facto, or impairs the obligation of contracts; and (2) whether the act is an illegal interference with interstate commerce.
1. The statutory enactment under discussion imposed a specific tax "upon all agents of packing-houses doing business in this state," and made penal the pursuit of such an occupation by any one who had not paid the tax, which was $200 per annum. Some five months before the passage of the act, the petitioner entered into a contract of employment with Nelson Morris & Co. under which he was to be paid a stipulated sum per week for his services as chief clerk and manager of their house in Atlanta, Ga. Under these facts, the statute is clearly not retroactive as applied to petitioner, nor can we see how it can be regarded as in any sense retroactive. It does not relate to any act or acts done prior to its passage, but only to the pursuit of the designated occupation after the commencement of the year following the passage of the act, by one who has failed to pay the tax imposed for the year in which he engages in that occupation. Nor is the petitioner's contract violated. In the first place, it appears that his contract is not for any definite term. He is subject at any time to be discharged without notice, and he was apparently under no obligation to continue his service after the imposition of the tax on his occupation. But even were this not true, the statute would not be objectionable as impairing the obligation of his contract. The state has generally a right to impose taxes upon occupations. One who lives in a state, and pursues therein an occupation which is not taxed, is bound to know that the Legislature may at any time, in the exercise of legislative discretion and power, impose a reasonable tax upon his occupation. He cannot, merely by contracting with other private persons to continue to pursue his occupation, deprive the Legislature and the state of the right to raise revenue by taxing his occupation. If the tax is in other respects constitutional, it cannot be held invalid merely because it adds to his expenses an item which he, not foreseeing a change in legislative policy, had not anticipated when he entered into the contract.
2, 3 4. The ground principally relied upon was that the tax was an illegal interference with interstate commerce. From the petition as amended, it appeared: That Nelson Morris & Co. are a partnership composed of citizens of the state of Illinois. "A packing house is a place where the business of slaughtering animals, and dressing and preparing the products of their carcasses for food and other commercial purposes, is carried on." Nelson Morris & Co. "do not anywhere within the state of Georgia slaughter, dress, cure, pack, or manufacture products of any animals for food or commercial use." They have in Atlanta a place of business, where, at wholesale, they sell fresh, cured, and salt meats, and the products that have been manufactured from the carcasses of slaughtered animals, but conduct at that place no other kind of business. Petitioner had no interest in the business, other than that of a paid employé. He was the chief clerk and manager of the Atlanta place of business before the passage of the act imposing the tax, and continues to fill the same position. Petitioner, as chief clerk and manager, or superintending agent, is one of the agencies of Nelson Morris & Co., who are engaged in the business of curing and packing meats for commerce, and who, as part of their business, ship to other states in the United States meats, and the products thereof, to be sold to customers calling for same. As a necessary part of this last-mentioned department, they have a place of business in Atlanta where meats, and the products thereof, are put and temporarily held for sale, and, as another part in the conduct of their business, they employ petitioner as chief clerk and manager, who, in connection with the other employés, conducts the business in Atlanta of selling and distributing the products of the packing house of Nelson Morris & Co., shipped from the packing house to Atlanta. In order for Nelson Morris & Co. to dispose of the products shipped from their packing house in Illinois to the city of Atlanta, it is necessary for them to have a place of business in Atlanta where such packing-house products can be stored and preserved until sold and delivered, and to have in their employ at their place...
To continue reading
Request your trial