Norfolk Western Railway Company v. John Sims

• Decision Date: 07 December 1903
• Docket Number: No. 74,74
• Parties: NORFOLK & WESTERN RAILWAY COMPANY et al., Plffs. in Err. , v. JOHN R. SIMS, Sheriff, etc
• Court: U.S. Supreme Court

191 U.S. 441

24 S.Ct. 151

48 L.Ed. 254

NORFOLK & WESTERN RAILWAY COMPANY et al., Plffs. in Err.,

v JOHN R. SIMS, Sheriff, etc.

No. 74.

Argued November 12, 1903.

Decided December 7, 1903.

This was a controversy between the sheriff of Person county, North Carolina, on the one part, and the railway company and Mrs. O. L. Satterfield on the other, which might have been the subject of a civil action, and which the parties agreed to submit, under the Code of North Carolina, to the judge of the superior court upon the following facts, and upon the question of the liability of the defendants for a license tax under § 52 of 'An Act to Raise Revenue,' ratified March 15, 1901. (Laws of 1901, p. 116.) The material part of the section reads as follows:

'Every manufacturer of sewing machines, and every person or persons or corporation engaged in the business of selling the same in this state, shall, before selling or offering for sale any such machine, pay to the state treasurer, a tax of $350, and obtain a license, which shall operate for one year from the date of the issue.'

The Norfolk & Western Railway Company, a Virginia corporation, operates a railroad from its main line at Lynchburg, Virginia, via Roxboro in Person county, North Carolina, to Durham in the same state. This company had itself complied with the revenue act of 1901, and paid a license tax for the privilege of carrying on its business as a common carrier within the state of North Carolina.

Sears, Roebuck, & Company (incorporated), of the city of Chicago, are manufacturers and dealers in sewing machines at Chicago, Illinois.

The defendant, Mrs. Satterfield, a resident of Person county, N. C., about November 1, 1901, sent an order by mail to Sears, Roebuck, & Co. for a sewing machine, which was shipped by them as railroad freight from Chicago to Mrs. Satterfield at Roxboro, the railway company at Chicago issuing, on behalf of itself and its connecting railroad lines, a through bill of lading therefor, under which the sewing machine was to be delivered to Mrs. Satterfield on surrender of the bill of lading, and payment of freight charges to the delivering carrier, the Norfolk & Western Railway Co.

The bill of lading was sent by Sears, Roebuck, & Co. by express, C. O. D., to the express agent at Roxboro, who received from Mrs. Satterfield the price of the sewing machine, and delivered the bill of lading to her. The express agent and the railway station agent were one and the same person. Mrs. Satterfield, having paid the purchase price, presented the bill of lading to the station agent, tendered the freight charges, and demanded the delivery of the sewing machine.

The railway company was willing and would have delivered the same had not the plaintiff, the sheriff and ex officio tax collector of Person county, insisted that Sears, Roebuck, & Co. could not sell the machine to Mrs. Satterfield without paying the license tax of $350, and forbade the delivery of the machine until the tax was paid, and thereupon levied upon the machine for such tax. He also insisted that the railway company would, by delivering the machine, be acting as the agent of Sears, Roebuck, & Co., and would be liable to prosecution for misdemeanor in aiding and abetting them in an unlawful sale of the sewing machine.

It also appears in the agreed statement of facts that other machines were sent by the same consignors to various purchasers in North Carolina, upon the lines of other interstate railroads, and were delivered upon the presentation of other bills of lading under the same conditions as above described.

The court found that Sears, Roebuck, & Co. were indebted to the state for $350 license tax; that the levy upon the machine was lawful and valid, and plaintiff was ordered to sell the machine and apply the proceeds to the payment of the tax. The judgment was affirmed by the supreme court of the state. 130 N. C. 556, 41 S. E. 673.

Messrs.Theodore W. Reath, William A. Guthrie, and Jos. L. Doran for plaintiffs in error.

Messrs. Robert D. Gilmer and James E. Shepherd for defendant in error.

Statement by Mr. Justice Brown:

[Argument of Counsel from pages 444-446 intentionally omitted] Mr. Justice Brown delivered the opinion of the court:

To the ordinary mind it seems a somewhat startling proposition that a manufacturing corporation, located and doing its main business in a distant city, having no manufactory in North Carolina, no stock in trade, no place for the sale of its goods there, and no agent authorized to sell them, can be compelled to take out a license required of all those 'engaged in the business of selling,' from the mere fact that it had done what hundreds of others were doing daily,—sent a single machine there upon a written order of a customer, and under an ordinary C. O. D. consignment. If this may be done, the revenues of every state may be largely increased by adopting a similar system, since a large part of the business of retail shops in the principal cities is done by orders received, filled, and the goods delivered in the same way. Of course, it is impossible to estimate the number of business houses in other states which are accustomed to collect their accounts in this manner.

If this were the law it would also follow that the consignor of every cargo of wheat sent to New York for export under a bill of lading, accompanied by a draft for the payment of the money in the usual method, might be compelled to take out a license in the state of New York as a dealer in produce, notwithstanding that all the real business was done in Chicago or North Dakota.

So, too, what the state may do directly it may authorize its municipalities to do, and if, under legislative sanction, each of the large towns in the state of North Carolina saw fit to adopt a similar license tax, the consequence would be, not a simple interference with interstate commerce, but a practical destruction of one important branch of it.

While it may be entirely true that the property in the thing sold does not pass under a C. O. D. consignment until delivery of the goods and payment to the carrier, and hence it may be said that the sale is not completed until then, yet, as matter of fact, the bargain is made, and the contract of sale completed as such, when the order is received in Chicago, and the machine shipped in pursuance thereof.

A sale really consists of two separate and distinct elements: first, a contract of sale, which is completed when the offer is made and accepted; and, second, a delivery of the property which may precede, be accompanied by, or follow, the payment of the price, as may have been agreed upon between the parties. The substance of the sale is the agreement to sell, and its acceptance. That possession shall be retained until payment of the price may or may not have been a part of the original bargain, but in substance it is a mere method of collection, and we have never understood that a license could be imposed upon this transaction except in connection with the prior agreement to sell, although, in certain cases arising under the police power, it has been held that the sale is not complete until delivery, and sometimes not until payment. Were it not for the opinion of the supreme court of North Carolina, we should have said that the words 'engaged in...