State v. Bayer

• Decision Date: 14 August 1908
• Docket Number: 1942
• Citation: 97 P. 129,34 Utah 257
• Court: Utah Supreme Court
• Parties: STATE v. BAYER et al

97 P. 129

34 Utah 257

STATE v. BAYER et al

No. 1942

Supreme Court of Utah

August 14, 1908

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by the state against J. E. Bayer and others. Judgment for plaintiff. Defendants appeal.

REVERSED AND REMANDED WITH DIRECTIONS.

Van Cott, Allison & Riter, J. R. Haas, and A. C. Lyon for appellants.

APPELLANT'S POINTS.

Any state statute which prohibits by its express terms or by its necessary operation the taking of orders by non-residents for lawful subjects of commerce in other States or which imposes a license tax upon drummers or agents selling goods by sample or otherwise or soliciting trade or taking orders therefor is a regulation of commerce and is unconstitutional and invalid. (Robbins v. Shelby Taxing District, 120 U.S. 489; Leloup v. Port of Mobile, 127 U.S. 640; Asher v Texas, 128 U.S. 129; Corson v. Maryland, 120 U.S. 502; Brennan v. Titusville, 153 U.S. 289; Stoutenburgh v. Hennick, 129 U.S. 141; Caldwell v. North Carolina, 187 U.S. 622; Railway v Sims, 191 U.S. 441; In re White, 43 F. 913, 11 L. R. A. 184; In re Spain, 47 F. 208; Ex parte Loeb 72 F. 657; In re Bergen, 115 F. 339; Kessler v. Perilloux, 127 F. 1011; Shoe Co. v. Rubber Co., 156 F. 1; Ex parte Massey [Texas], 92 S.W. 1086; Clements v. Casper, 4 Wyo. 494, 35 P. 472; State v. O'Connor, 5 N.D. 629, 67 N.W. 824; Ex parte Rosenblatt, 19 Nev. 439, 14 P. 298; Ft Scott v. Pelton, 39 Kan. 764, 18 P. 954; Martin v. Rosedale, 130 Ind. 109, 29 N.E. 410; Bloomington v. Bourland, 137 Ill. 534, 27 N.E. 692; Range Co. v. Johnson, 84 Ga. 754, 11 S.E. 233; Ex parte Murray, 93 Ala. 78, 8 So. 868; Ward v. Maryland, 79 U.S. (12 Wall.) 418; Welton v. Missouri, 91 U.S. 275; Guy v. Baltimore, 100 U.S. 434; Webber v. Virginia, 103 U.S. 344; In re Watson, 15 F. 511 [Vt. Statute]; In re Schechter, 63 F. 695 [Minn. Statute]; Rogers v. McCoy, 6 Dak. 238, 44 N.W. 990; Vermont v. Pratt, 59 Vt. 590, 9 A. 556; Vines v. State, 67 Ala. 73; Murphy v. Sipe, 49 Ohio St. 536, 31 N.E. 884; Ames v. People, 25 Colo. 508, 55 P. 725; Brooks v. Mangan, 86 Mich. 576, 49 N.W. 633; State v. McGinnis, 37 Ark. 362; Marshalltown v. Blum, 58 Iowa 184, 12 N.W. 266; Commonwealth v. Caldwell [Mass.], 76 N.E. 955; State v. Furbush, 72 Md. 493; Commonwealth v. Myer, 92 Va. 809, 23 S.E. 915; Sayre v. Phillips, 148 Pa. St. 482, 24 A. 76; In re Jarvis, 66 Kan. 329, 71 P. 576; Fecheimer v. Louisville, 84 Ky. 306, 2 S.W. 65; Ex parte Deeds, 75 Ark. 542, 87 S.W. 1030; Bacon v. Locke [Wash.], 83 P. 721; Ex parte Thomas [Cal.], 12 P. 53; Commonwealth v. Hana [Mass.], 81 N.E. 149; Clements v. Casper, 4 Wyo. 494, 35 P. 472.)

Even if this statute were an exercise of the police power and was passed for the most laudable purpose of preventing fraud or promoting the public welfare it would be unconstitutional and invalid because it conflicts with powers which are exclusively granted to Congress. (Henderson v. Mayor of N.Y., 92 U.S. 259; Railroad v. Husen, 95 U.S. 465; In re Sanders, 52 F. 802; Collins v. New Hampshire, 171 U.S. 30; Ex parte Scott, 66 F. 45; In re McAlister, 51 F. 282; In re Ware, 53 F. 783; Stubbs v. People [Colo.], 90 P. 1114; In re Worthen, 58 F. 467.)

An occupation which is thus perfectly legal and lawfully conducted cannot be prohibited by a State, nor can conditions be annexed to the issuance of a license therefor which will virtually amount to such prohibition. A statute which has this effect and operation deprives citizens of their property without due process of law within the meaning of the Fourteenth Amendment to the United States Constitution. (In re Quong Woo, 13 F. 229; Laundry License Cases, 22 F. 701; Philadelphia v. Telegraph Co., 40 F. 615; LaJunta v. Heath [Colo.], 88 P. 459; Walsh v. Denver [Colo.], 53 P. 458, and cases cited; Yick Wo v. Hopkins, 118 U.S. 356.)

M. A. Breeden, Attorney-General, for the State.

RESPONDENT'S POINTS.

Section 2 of article 13 of the state Constitution, says: "Nothing in this Constitution shall be construed to prevent the Legislature from providing a stamp tax, or a tax based on income, occupation, licenses, franchises or mortgages." The tax levied is upon an occupation, under the taxing power of the State. The power to tax involves the power to destroy, and to use the language of Justice Frick in the Christensen Company Case it is "plenary and supreme." (Ogden v. Crossman, 17 Utah 66; Salt Lake v. Christensen Co., 33 Utah ; McCray v. U.S., 195 U.S. 24, 47 L.Ed. 78, 25 Cyc. 604, 612; St. Louis v. Sternberg, 69 Mo. 289.)

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This appeal involves the validity and construction of sections 1710x and 1710x1 of title 61, Comp. Laws 1907, which are as follows:

"No person, firm, or corporation, as principal or agent, shall peddle out, hawk, or, after shipment to this state, canvass, by going from house to house or from place to place, and sell or offer for sale, by sample, to users or consumers, clocks, agricultural implements, tools or machinery, stoves or ranges, wagons, buggies, carriages, surreys, or other similar vehicles, washing machines, churns, pictures, enlarged pictures, or picture frames, lightning rods, spectacles, jewelry, sewing machines, books or musical instruments, within this state, without previously obtaining a license therefor, as herein provided.

"No person, firm, or corporation, as principal or agent, shall engage in or conduct, as an itinerant vender, peddler, hawker, or traveling merchant, the business of peddling, selling, or bartering, or after shipment to this state, canvassing or selling by sample, clocks, agricultural implements, tools or machinery, stoves or ranges, wagons, buggies, carriages, surreys, or other similar vehicles, washing machines, or churns, pictures, enlarged pictures, or picture frames, sewing machines, books, lightning rods, spectacles, jewelry, or musical instruments, within this state, without previously obtaining a license therefor, as herein provided."

In the complaint filed against the appellants it is alleged that they, "after shipment into the State of Utah of certain buggies and carriages, did then and there unlawfully and willfully engage in and conduct, as itinerant venders, peddlers, hawkers, and traveling merchants, the business of peddling, selling, bartering, canvassing, and selling the same, by sample, without previously obtaining a license therefor." The cause was submitted to the court on an agreed statement of facts, which, in substance, is: That the Spaulding Manufacturing Company, a copartnership, is engaged in the business of manufacturing wagons and carriages at Grinnell, in the State of Iowa. That all the members of the copartnership are citizens and residents of that State. The appellants Bayer and Bacon are residents and citizens of Iowa, and appellants Stayner and Eckhart are citizens and residents of Utah. That the appellants were employed by the Spaulding Manufacturing Company as salesmen. "That said defendants, while so employed as salesmen by said company and in the discharge of their duty, after shipment into this State of a car load of carriages and buggies, engaged in the pursuit or business of canvassing and selling by sample and otherwise certain buggies or carriages to people residing in the county of Davis and State of Utah. That said defendants canvassed the towns of Farmington and Centerville, in said county, with samples, and exhibited on or about November 15, 1907, samples of buggies and carriages to Charles O. Rollings, and sold to him a certain carriage, and agreed to deliver a carriage similar in all respects to the sample thus exhibited to the said purchaser within thirty days thereafter, and thereafter, within such stipulated time, did deliver a carriage similar to the sample aforesaid, and during the times mentioned in said complaint the procedure aforesaid was repeated. That said defendants during the times mentioned in said complaint, and in said Davis county, trailed vehicles through said Davis county, in some instances selling and thereupon delivering such trailed vehicles, and in some instances said trailed vehicles were sold and there was taken in exchange other vehicles, which were trailed for a distance and then again sold, all of the aforesaid matters occurring in said Davis county and during the times mentioned in said complaint. That said vehicles so sold to the said purchasers were manufactured by said company at its factory in Grinnell, State of Iowa, with the exceptions aforesaid, and the vehicles so sold and delivered belonged to and were the property of said company, and were sold for and on its behalf, and the said vehicles so manufactured in Grinnell, Iowa, were sent from there to Davis county, Utah, for the purpose of being sold, and for no other purpose. That such vehicles were not out of the possession of said company or its agents from the time of their receipt within the State of Utah until the same were sold and delivered as aforesaid." Upon such facts the defendants were found guilty and adjudged to pay a fine.

On appeal they urge that the enactment contravenes section 1 art. 8, Const. U.S. relating to the power of Congress to regulate commerce among the several States, section 2, art. 4, providing that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States, and section 1 of the fourteenth amendment providing that no State shall make or enforce any law which abridges the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws, and section 24, art. 1 of the State Constitution which provides that all laws of a general nature shall be uniform in operation....