McCall v. People of the State of California

• Decision Date: 19 May 1890
• Parties: MCCALL v. PEOPLE OF THE STATE OF CALIFORNIA
• Court: U.S. Supreme Court

136 U.S. 104

10 S.Ct. 881

34 L.Ed. 392

MCCALL v. PEOPLE OF THE STATE OF CALIFORNIA.

May 19, 1890.

Order No. 1,589 of the board of supervisors of the city and county of San Francisco 'imposing municipal licenpses,' provides, among other things, as follows:

'Section 1. Every person who shall violate any of the provisions of this order shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not more than one thousand dollars, or by imprisonment no more than six months, or by both.' 'Sec. 10. The rates of license shall be according to the following schedule:' 'Subdivision 33. First. For every railroad agency, twenty-five dollars per quarter.'

The plaintiff in error, J. G. McCall, was an agent in the city and county of san Francisco, Cal., for the New York, Lake Erie & Western Railroad Company, a corporation having its principal place of business in the city of Chicago, and which operated a continuous line of road between Chicago and New York. He had not taken out a license for the quarter ending March 31, 1888, as required by the provisions of the aforesaid order. As such agent his duties consisted in soliciting passenger traffic in that city and county over the road he represented. He did not sell tickets to such passengers over that road or any other, but took them to the Central Pacific Railroad Company, where the tickets were sold to them. The only duty he was required to perform for such company was to induce people contemplating taking a trip east to be booked over the line he represented. He neither received nor paid out any money or other valuable consideration on account thereof. On the 3d of June 1888, the plaintiff in error was convicted of misdemeanor in the police judge's court of the city and county of San Francisco for violation of the provisions of the aforesaid order, and on the 16th of November of that year, after a motion for a new trial and a motion in arrest of judgment had both been denied, the court sentenced him to pay a fine of $20, and in default of the payment thereof to imprisonment in the county jail of the city and county until the same should be paid, for a period not exceeding 20 days. Upon appeal to the superior court of the city and county of San Francisco, that court affirmed the judgment below, and this writ of error was then sued out.

Jos. P. Kelly, for plaintiff in error.

Jas. D. Page, for defendant in error.

[Argument of Counsel from pages 105-107 intentionally omitted]

LAMAR, J.

There are three assignments of error, which are reducible to the single proposition that the order under which the plaintiff in error was convicted is repugnant to clause 3 of section 8, art. 1, of the constitution of the United States, commonly known as the 'commerce clause' of the constitution, in that it imposes a tax upon interstate commerce, and that, therefore, the court below erred in not so deciding, and in rendering judgment against the plaintiff in error. This proposition presents the only question in the case, and, if it appears from this record that the business in which the plaintiff in error was engaged was interstate commerce, it must follow that the lices e tax exacted of him as a condition precedent to his carrying on that business was a tax upon interstate commerce, and therefore violative of the commercial clause of the constitution. In the recent case of Lying v. State of Michigan, ante, 725, (decided April 28th ult.,) this court said: 'We have repeatedly held that no state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to congress.' In County of Mobile v. Kimball, 102 U. S. 691, 702, this court defined interstate commerce in the following language: 'Commerce with foreign countries and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities.' Pomeroy, in his work on Comstitutional Law, (section 378,) referring to the signification of the word 'commerce,' says: 'It includes the fact of intercourse and of traffic, and the subject-matter of intercourse and traffic. The fact of intercourse and traffic, again, embraces all the means, instruments, and places by and in which intercourse and traffic are carried on, and, further still, comprehends the act of carrying them on at these places, and by and with these means. The subject-matter of intercourse or traffic may be either things, goods, chattels, merchandise, or persons. All these may therefore be regulated.'

Tested by these principles and definitions, what was the business or occupation carried on by the plaintiff in error on which the tax in question was imposed? It is agreed by both parties that his business was that of soliciting passengers to travel over the railroad which he represents as an agent. It is admitted that the travel which it was his business to solicit is not from one place to another within the state of California. His business, therefore, as a railroad agent, had no connection, direct or indirect, with any domestic commerce between two or more places within the state. His employment was limited exclusively to inducing persons in the state of California to travel from that state into and through other states, to the city of New York. To what, then, does his agency relate, except to interstate transportation of persons? Is not that as much an agency of interstate commerce as if he were engaged in soliciting and securing the transportation of freight from San Francisco to New York city over that line of railroad? If the business of the New York, Lake Erie & Western Railroad Company, in carrying passengers by rail between Chicago and New York and intermediate points, in both directions, is interstate commerce, as much so as is the carrying of freight, it follows that the soliciting of passengers to travel over that route was a part of the business of securing the passenger traffic of the company. The object and effect of his soliciting agency were to swell the volume of the business of the road. It was one of the 'means' by which the company sought to increase, and doubtless did increase, its interstate passenger traffic. It was not incidentally or remotely connected with the business of the road, but was a direct method of increasing that business. The tax upon it therefore was, according to the principles established by the decisions of this court, a tax upon a means or an occupation of carrying on interstate commerce, pure and simple.

In Robbins v. Shelby Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592, the taxing district of Shelby county, Tenn., which included the city of Memphis, acting under the authority of a statute of that state, attempted to impose a license tax upon a 'drummer' for soliciting, within that district, the sale of goods for a firm in Cincinnati which he rp resented; but this court decided that such a soliciting of business constituted a part of interstate comerce, and that the statute of Tennessee imposing a tax upon such business was in conflict with the commerce clause of the constitution of the United States, and was therefore void. A like decision was rendered in Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380; and in Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1,...