Overton v. The City of Vicksburg

• Decision Date: 27 March 1893
• Citation: 70 Miss. 558,13 So. 226
• Court: Mississippi Supreme Court
• Parties: H. M. OVERTON v. THE CITY OF VICKSBURG

13 So. 226

70 Miss. 558

H. M. OVERTON v. THE CITY OF VICKSBURG

Supreme Court of Mississippi

March 27, 1893

March 1893

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

Appellant is a citizen of Louisiana. He was acting as agent for the Southern Installment Manufacturing Company, a corporation domiciled at New Orleans in said state, selling goods in this state. In the prosecution of its business, this company employed a number of agents or canvassers in the different states, appellant being one of the number. They were furnished with samples of the goods to be sold, and carried them from house to house soliciting orders. When an order would be obtained, it would be forwarded to the house at New Orleans, which would ship the goods to the agent making the sale, and he would deliver the same to the purchaser collecting the first installment of the purchase-money, which was applied as a part of his commission for making the sale. The remaining payments would be received by a collecting agent. Appellant was engaged in the prosecution of this business in the city of Vicksburg, when he was arrested for failing to comply with an ordinance of the city requiring all transient peddlers to pay a privilege tax and procure a license. This tax appellant refused to pay. He made no sales except in the manner above stated. He was convicted in the mayor's court, and, on appeal to the circuit court, was again convicted. Hence this appeal.

Reversed and remanded.

George Anderson, for appellant.

This is another instance of a city trying to regulate interstate commerce. Richardson v. State, recently decided by this court on the authority of Robbins v. Shelby County, 120 U.S. 489, is decisive of this case.

It is immaterial that defendant delivered the goods and collected the first payment thereon. The authorities uniformly held that in such cases a license tax cannot be imposed. State v. Agee, 83 Ala. 110; Ex parte Murray, 93 Ib., 78; McLaughlin v. South Bend, 126 Ind. 471; 41 F. 775; 47 Ib 208, 539.

R. V. Booth, for appellee.

This case is distinguishable from Robbins v. Shelby County, 120 U.S. 490, and similar cases. Appellant was not taxed for selling goods situated in another state. The tax was imposed for peddling goods in this state and collecting the price therefor. Can a foreign establishment have a depot for the reception of goods here, and sell them by agent, without bearing the burdens imposed on domestic dealers in the same business?

There is no sale without a delivery, and, as the delivery is made here after the goods come within the jurisdiction, the sale is made here. When goods are purchased through a drummer in the ordinary course, they are delivered to a carrier, and the title passes eo instanti to the consignee, and this completes the sale.

The law which seeks to exempt from the common burdens. of taxation should be...