State v. Emert

• Decision Date: 27 January 1891
• Citation: 15 S.W. 81,103 Mo. 241
• Parties: STATE v. EMERT.
• Court: Missouri Supreme Court

15 S.W. 81

103 Mo. 241

STATE v. EMERT.

Supreme Court of Missouri.

January 27, 1891.

INTERSTATE COMMERCE — PEDDLER'S LICENSE — SEWING-MACHINE AGENTS.

Rev. St. Mo. § 7212, requiring all peddlers to pay a license fee, and section 7211, declaring that whoever sells certain classes of goods by going from place to place shall be deemed a peddler, is not a regulation of interstate commerce as applied to one who, as the agent of a manufacturer in another state, thus sells and delivers sewing-machines which have already been sent into the state.

Appeal from circuit court, Montgomery county; E. M. HUGHES, Judge.

Seneca N. Taylor, for appellant. The Attorney General, for the State.

MACFARLANE, J.

Plaintiff was prosecuted upon information before a justice of the peace for following the business of a peddler without having license therefor. The case was appealed to the circuit court of Montgomery county, where it was tried, defendant found guilty, and a fine of $50 imposed upon him. From the judgment he has appealed to this court, on the ground that a constitutional question is involved. The case was submitted to the court upon the following agreed statement of facts: "For the purpose of dispensing with evidence in the above-entitled cause in the circuit court, it is agreed by and between the parties to said cause that the following are the facts in said case, and that said cause may be decided by the court on the following agreed statement, to-wit: (1) That for more than five years last past the Singer Manufacturing Company has been, and still is, a corporation, duly organized under the laws of the state of New Jersey, and a citizen of that state. (2) That on and prior to the 26th day of June, 1889, E. S. Emert, defendant, was in the employ of said Singer Manufacturing Company on a salary for his services, and at said time, in pursuance of said employment, was engaged in going from place to place in said Montgomery county, Mo., with a horse and wagon, soliciting orders for the sale of Singer sewing-machines, having with him in said wagon a certain new Singer sewing-machine, which on said day he offered for sale to various persons, at different places in said county, and on said day the defendant did find a purchaser for said machine, and did sell and deliver the same to David Portuchek, in said county. (3) That said Singer machine in question was manufactured by said Singer Manufacturing Company at its works in the state of New Jersey, and that said machine belonged to and was the property of said company, and that it was forwarded to this state by said company, and delivered to defendant as its agent, for sale on its account, and said machine was sold on account of the said manufacturing company; that said machine was of the value of fifty dollars, and the defendant at the time of said sale had no peddler's license." The statute under which defendant was convicted is as follows: "Sec. 7211. Whoever shall deal in the selling of patents, patent-rights, patent or other medicines, lightning-rods, goods, wares, or merchandise, except books, charts, maps, and stationery, by going from place to place, to sell the same, is declared to be a peddler. Sec. 7212. No person shall deal as a peddler without a license; and no two or more persons shall deal under the same license, either as partners, agents, or otherwise; and no peddler shall sell wines or spirituous liquors." Sec. 7217. This section fixes the license fee to be paid for peddling with horse and buggy at $25 for six months for the use of the state. Sec. 7219 fixes a penalty of $50 for dealing as a peddler with horse and wagon without license.

Defendant insists that this statute, as applied to him, under the statement of facts agreed to, is obnoxious to that provision of the federal constitution (section 1, art. 8) which delegates to congress the sole power to regulate commerce among the states. This subject has of late years received much discussion and consideration from the courts of the country, both state and federal, and many of the questions involved have been firmly established. It is conceded by all that a law of a state which imposes a tax upon articles manufactured in or imported from another state, as a condition of the right to sell and dispose of them, would be in violation of this provision of the constitution. The difficulty, in each case, has been to determine the effect of the particular law under consideration; to determine whether, in that case, the commercial power of the federal government had ceased, and the power of the state had commenced. Solving these questions as they arose, it has been settled that it matters not whether the tax is imposed directly upon the commodity sold, or, by way of license, exacted of the parsons who make the sales, the restriction on commerce would be the same in either case. Welton v. Missouri, 91 U. S. 275; Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592. By force of these decisions of the court having the highest judicial authority over the subject, it is settled that the sale of goods which are in another state at the time of the sale, for the purpose of introducing them into the state in which the regulation is made, is interstate commerce; that a tax on a sale of such goods before they are brought into the state is a tax on interstate commerce itself; that the imposition of a license tax upon the person making such sale is, in its effect, a tax upon the goods themselves; that a state cannot tax goods beyond its jurisdiction. Hynes v. Briggs, 41 Fed Rep. 469, citing Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091; Woodruff v. Parkham, 8 Wall. 123; Cook v. Pennsylvania, 97 U. S. 566; Welton v. Missouri, 91 U. S. 275. It has been equally well settled that as soon as goods are brought into a state, and have become a part of its general mass of property, it becomes taxable in the same manner as other similar property in the state. Brown v. Maryland, 12 Wheat. 419; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091; Machine Co. v. Gage. 100 U. S. 676. The question of most difficulty is to determine, in individual cases, whether the property brought into one state from another has become a part of the general mass of the property of such state. The only rule yet laid down is that, so long as it remains in the original package in which it was brought into the state, it is beyond the control of state laws attempting to restrict or prohibit its sale. Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. Rep. 681. The rule is more elaborately stated by Chief Justice MARSHALL, in Brown v. Maryland, supra, who, after suggesting the difficulties that might arise in distinguishing between what would be laying a duty on imports and what would be the acknowledged power of states to tax persons and property within their territory, says: "Yet the distinction exists, and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present to say, generally, that, when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property of the country, it has,...