Leonard v. Reed

• Decision Date: 04 October 1909
• Parties: LEONARD v. REED, County Clerk and Recorder, et al.
• Court: Colorado Supreme Court

104 P. 410

46 Colo. 307

LEONARD v. REED, County Clerk and Recorder, et al.

Supreme Court of Colorado, En Banc.

October 4, 1909

Error to District Court, El Paso County; Robert E. Lewis, Judge.

Action by Leroy Leonard against W. H. Reed, County Clerk and Recorder, and others Judgment for defendants, and plaintiff brings error. Reversed and remanded.

H. K Wing and R. L. Chambers, for plaintiff in error.

R. L Holland, for defendants in error.

GABBERT, J.

The sole question presented for our determination is the constitutionality of the itinerant vendors' act (Sess Laws 1905, p. 274, c. 114), and an act entitled 'Revenue' (chapter 157, p. 408, Acts 1903). Leonard paid the license fee exacted by the itinerant vendors' act, and also the tax levied upon his property under the provisions of chapter 157 of the Acts of 1903. Thereafter an agreed case was submitted to the district court, the purpose of which was to determine whether he was entitled to recover the fee and tax so paid. From the facts agreed upon in the trial court, so far as necessary to consider in determining the constitutionality of the acts in question, it appears that in the summer of 1905 Leonard was a citizen of the United States, a nonresident of the state of Colorado, and that his place of residence was Pasadena, Cal.; that he was then engaged in selling manufactured goods, wares, and merchandise in a storeroom rented by him for that purpose in the city of Colorado Springs; that the occupation of such room was temporary, and without intention to engage in permanent trade therein; that his stock of merchandise consisted of articles brought into this state; and that Reed, county clerk and recorder of El Paso county, demanded of him as a license for the privilege of conducting his business the sum of $250 which was paid to Reed under protest. It further appears that Leonard brought his stock of merchandise into El Paso county and state of Colorado subsequent to May 1, 1905; that, pursuant to the revenue act involved, a tax in the sum of $41.09 was assessed against this stock, which sum he paid to the county treasurer of El Paso county under protest. September 30, 1905, judgment was rendered in favor of the defendants, Reed and others, from which the plaintiff appealed.

We have no jurisdiction to entertain the appeal. Section 388, Mills' Ann. Code. But by virtue of the provisions of section 388a, Id., we have directed the clerk to enter the action as pending on writ of error. Were it not for the fact that appellees have entered an appearance, we would be compelled, on the authority of Brady v. People (Colo.) 101 P. 340, to dismiss the appeal, and refuse to consider it on error.

The term 'itinerant vendor,' as defined by the itinerant vendors' act, includes any person who engages in either a temporary or transient business in this state, in one locality or by traveling from place to place selling merchandise, and also 'those who, for the purpose of carrying on their temporary or transient business, hire, lease, or occupy a building, structure, tent, car, boat, vehicle, storeroom, or place of any kind for the exhibition and sale of any manufactured goods, wares or merchandise.' The succeeding section declares that the act shall not apply to commercial travelers or agents selling to merchants in the usual course of business. This act was under consideration in Smith v. Farr, 44 Colo. ----, 104 P. 401, wherein we held that the Constitution of the United States confers upon Congress the sole power to regulate commerce among the several states, and therefore interstate commerce cannot be taxed by a state. We also held that, as applied to the facts of that case, the law was invalid for the reason that it was nothing more or less than the imposition of a tax upon nonresidents bringing merchandise into the state for the privilege of selling to the consumer. Such is the effect of the law in the case at bar. Plaintiff in error is required to pay the license fee exacted for the privilege of disposing of his merchandise at a storeroom because he temporarily occupies it without the intention of engaging in permanent trade at that place. His temporary occupation results from the fact that he is a nonresident, bringing with him from a sister state articles of merchandise which he seeks to dispose of to those purchasing for their own use. A resident merchant, permanently engaged in selling the same class of merchandise at a storeroom in Colorado Springs, is exempted from the payment of such license. This imposes a burden upon the nonresident coming to the state for the purpose of engaging in commerce by requiring him to pay for the privilege of selling articles of merchandise brought with or sent to him from the outside, from which the resident, permanently engaged in business, is exempted. That it is not a tax imposed upon the merchandise of plaintiff because it had become a part of the general mass of the property of the state is manifest from the fact that in addition to the license fee exacted the act of 1903, supra, provides for the levy of a tax, and under which a tax was in fact levied in addition to the license fee exacted, the validity of which we shall consider later. The existence of this provision serves to strengthen our conclusion in Smith v. Farr, wherein it was stated, as applied to the facts of that case: 'The license exacted is nothing more or less than a tax imposed upon outside manufacturers for the privilege of selling their products in this state direct to the consumer, for the reason that manufacturers within the state are relieved from that burden.'

The fourteenth amendment to the federal Constitution provides: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, * * * nor deny to any person within its jurisdiction the equal protection of the laws.' The act exempts from its operation commercial travelers or agents selling to merchants in the usual course of business. This is a discrimination without any reason. An itinerant vendor, as defined by the act, could maintain a temporary place of business next door to plaintiff, and engage in selling the same character of merchandise to merchants without paying a license fee. A burden is thus imposed upon one itinerant vendor from which another is exempt. We can see no reason why one temporarily occupying a storeroom and selling to merchants may do so without paying a license fee, while another, who sells the same article from his temporary place of business to a consumer, must pay that fee. Classification which is natural and reasonable is valid. That which is arbitrary and capricious is not. In short, as we held in Smith v. Farr, supra, under the statute one may enjoy a right which is denied another within the same jurisdiction in like circumstances, and for that reason the statute is obnoxious to the fourteenth amendment to the federal Constitution.

The federal Constitution further provides: 'The citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states.' Section 2, art. 4. The statute under consideration clearly violates this provision. When analyzed for results, we find that the citizen of another state who comes to Colorado to temporarily engage in the sale of merchandise in a storeroom...