Saulsbury v. State

• Decision Date: 29 May 1901
• Citation: 63 S.W. 568
• Parties: SAULSBURY v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W. 568

SAULSBURY v. STATE.

Court of Criminal Appeals of Texas.

May 29, 1901.

Appeal from Bell county court; G. M. Felts, Judge.

W. Saulsbury was convicted of pursuing the occupation of a peddler without having paid the occupation tax provided by law, and he appeals. Affirmed.

Saunders & Saunders, for appellant. Banks & Cochran and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted for pursuing the occupation of a peddler in Bell county without first having paid the occupation tax of $250, fixed by law, and his punishment assessed at a fine of $250. The agreed statement of facts shows substantially the following: "Appellant admitted that neither he nor his employers, Raterman & Luth, had paid the tax of $250 fixed by law upon the occupation of peddling out buggies in Texas for the year 1901, and further admitted that he had been, during the months of March and April, 1901, engaged in peddling buggies in Bell county, Texas, and was so engaged on the 2d day of March, 1901, when he was arrested under the complaint filed in this cause. The following is his account of the manner in which said buggies were received and sold by him: Raterman & Luth, a partnership firm composed of H. Raterman and Theodore Luth, are buggy manufacturers, living in the state of Ohio, and residents of that state. They have a factory at Cincinnati, where they manufacture buggies, hacks, and vehicles of other descriptions. In March, 1901, they shipped a car load of buggies from Cincinnati, Ohio, where their factory is located, to Temple, in Bell county, Tex., consigned to their own order. These buggies were shipped in a knocked-down condition; that is, some of them were packed as follows: The wheels were taken off the buggies, and the dashboards, tongues, and shafts were detached. The wheels and dashboards were packed and bound together in the same crate with the buggies, but the tongues and shafts were shipped separately. Others were entirely taken to pieces, and the different parts shipped separately; that is, the wheels, tops, springs, tongues, shafts, dashboards, axles, and bodies were separated from each other, and not bound together, and shipped through in that condition. The buggies were loaded in the cars in this condition at Cincinnati, and shipped through to Temple in the same condition. The defendant was employed by Raterman & Luth, as their agent at Temple, to sell said buggies. He, and the other employés of Raterman & Luth, received the buggies at Temple in their original packages in which they were shipped, unloaded them from the cars, placed them in a house rented by him, and put them together. Defendant peddled out these buggies through Bell county in the following manner: He hitched his team to a buggy, and drove through the country from place to place, offering the buggies for sale. Sometimes he trailed another buggy behind the one in which he was riding. His sales were made for cash, or partly for cash and partly on time. Where he sold for cash, the money was remitted to Raterman & Luth, at Cincinnati. When he sold on time, he took notes for the balance of the purchase money, payable to Raterman & Luth, in Cincinnati, and sent these notes to them. When sales were made of a buggy he had with him, he delivered the buggy at the time of the sale to the purchaser. If he found a person who wanted a different kind or a different priced buggy, and he had one of that description in stock in the house where he stored the buggies, he delivered it to him, the money and notes being remitted to his employer in the manner pointed out above. If he had no buggy in stock suitable to the wants of those to whom he was trying to sell, he would take his order for the kind of vehicle he wished and send it to his employers, who shipped one of that description to him, which he delivered the purchaser, remitting the money and notes in that instance, as above stated. The principal sales made by him, however, were from the buggies he carried around and delivered at the time of sale. Neither defendant nor Raterman & Luth had any place of business in Texas. The only place they had was the house mentioned above, which was rented for a month in which to temporarily store their vehicles while they were being peddled out. Defendant had no interest in the buggies whatever, and in all the matters above mentioned acted as their agent. He stopped in one county only long enough to sell buggies on hand, when he moved to another."

Counsel for appellant, in their able brief, insist the conviction cannot be sustained, because the occupation tax levied on peddlers, as applied to him, is violative of what is known as "interstate commerce"; and cites in support thereof the cases of French v. State (Tex. Cr. App.) 58 S. W. 1015; Kirkpatrick v. State (decided by this court) 60 S. W. 762; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368; Miller v. Goodman (Tex. Sup.) 40 S. W. 718. The Kirkpatrick Case rests in the main upon the French Case. In French's Case, this court was endeavoring to follow the case of Leisy v. Hardin, supra. There the court seemed to indicate that, until the property brought from another state was sold, it would still not be subject to taxation, as it would be violative of interstate commerce. At the time of the decision in the French and Kirkpatrick Cases, supra, our attention had not been called to Emert v. Missouri, 156 U. S. 296, 15 Sup. Ct. 367, 39 L. Ed. 430, which draws a distinction between a drummer and a peddler,—a distinction that we are willing to accede to, not because the one would be any the less exempt from interstate commerce, but because to that extent it is nearer in line with our views as expressed in Ex parte Asher, 23 Tex. App. 662, 5 S. W. 91. When considered abstractly, with all deference to the learned court rendering the decision, we are inclined to approve the language of Chief Justice Waite in his dissenting opinion in Robbins v. Taxing Dist., 120 U. S. 501, 7 Sup. Ct. 598, 30 L. Ed. 698, as follows: "I am unable to see any difference in principle between a tax on a seller by sample and a tax on a peddler; and yet I can hardly believe it would be contended that the provision of the same statute now in question, which fixed a license fee for all peddlers in the district, would be held to be unconstitutional in its application to peddlers who came with their goods from another state, and expected to go back." Be this as it may, we acquiesce in the decision of the supreme court of the United States, and under the authority of Emert v. Missouri, supra, we are constrained to overrule the Cases of French and Kirkpatrick, supra. In the Emert Case, the court held that the statute of a state, by which peddlers of goods going from place to place within the state to sell them are required, under a penalty, to take out and pay for license, and which makes no discrimination between residents or products of the state and those of other states, is not, as to peddlers of goods previously sent to them by manufacturers in other states, repugnant to the grant by the constitution to congress of the power to regulate commerce among the states. This decision cites with approval Machine Co. v. Gage, 100 U. S. 676, 25 L. Ed. 754. In Emert's Case the state of Missouri had levied an occupation tax upon all persons who should peddle certain kinds of goods, and defined a "peddler" to be one who dealt in the sale of such goods by going from place to place to sell them. Included in the class of goods designated was sewing machines. The Singer Manufacturing Company, a corporation of New Jersey, shipped its machines into the state of Missouri, and there delivered them to defendant, Emert, to be sold by him as their agent. Emert worked on a salary, and took the machines in a wagon, and, driving from place to place in Montgomery county, Mo., solicited orders for their sale and offered them for sale. The evidence showed that on the day named in the information he sold and delivered to one David Partucheck a machine, and that he had not previously paid the occupation tax. Upon appeal, the case was affirmed by the state court. State v. Emert, 103 Mo. 247, 15 S. W. 81, 11 L. R. A. 219. A writ of error was sued out to the...