State v. Lichtenstein

• Decision Date: 24 November 1897
• Citation: 44 W.Va. 99
• Court: West Virginia Supreme Court
• Parties: State v, Lichtenstein

44 W.Va. 99

State v. Lichtenstein

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 1897

Decided Nov. 24, 1897

Constitutional Law Liquor License Interstate Commerce

So much of section 1, chapter 32, Code 1891, as requires a license to solicit or receive orders for spirituous liquors, is unconstitutional and void, as applied to those soliciting-orders for the sale of goods to be shipped from points outside this State to points within this State.

Error to Circuit Court, Mineral County.

Reuben Lichtenstein was indicted for violation of liquor law, and acquitted. The State brings error.

Affirmed.

T. S. Riley, Attorney General, for the State.

William C. Clayton and C. W. DaiLey, for defendant in error.

Brannon, Judge:

Lichtenstein was indicted in Mineral county for selling liquor, and also for soliciting and receiving orders for the sale of liquors, without a license to do so, and on trial was acquitted, and the State brings the case to this Court by her writ of error. As the facts show no sale in Mineral county, the goods being" shipped by express from Cumberland, Md., to the party buying, there was no offense of sale committed in Mineral county, and therefore there could be no conviction under the count of the indictment for selling State v. Hughes, 22 W. Va., 743. The prosecution was really for the act of soliciting-and receiving-an order in Mineral county for the sale of liquor by a dealer in Cumberland, Md., who, in pursuance of the order, shipped the liquor by express from Cumberland, consigned to the purchaser in Mineral county. Thus, the sole question in the case is whether the provision of Code 1891, c. 32, s. 1, that "no person without a State license therefor shall solicit or receive orders for spirituous liquors," etc., is repugnant to the federal constitution and law giving-power to congress to regulate commerce among the several states. Upon this question the Attorney General submits no argument for the State, and I have concluded that the question is very plain against the State, in itself and under decision of the Supreme Court of the United States, which, upon such a question must be all controlling. The case of Brennan v. City of Titusville, 153 U. S. 289, (14 Sup. Ct. 829), is alone decisive against the State, holding that an ordinance requiring agents soliciting orders for manufacturers of goods to take out a license and pay a tax, made by a municipal corporation under a statute of the state, is an exercise, not of the police power, but of the taxing power, and, when enforced against an agent sent by a manufacturer of goods in another state to solicit orders for the products of his manufactory, it imposes a tax on interstate commerce, in violation of the constitution of the United States. No question can be made, of course, to distinguish this from other cases, because the article sold was spirituous liquors; for spirituous liquors are property, and a legitimate subject of traffic and interstate commerce. Crutcher v. Kentucky, 141 U. S. 60, (11 Sup. Ct. 851); Leisy v. Hardin, 135 U. S. 100, (10 Sup. Ct. 681). It has often been held that a state law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce, no matter how specious the pretext may be for imposing it; no matter whether it be by way of dues laid on the transportation of the subject of interstate commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that taxation is a burden on that commerce, and amounts to a regulation of it, and belongs alone to congress. The fact that congress has made no regulation touching-it makes no difference, as that evinces an intent to leave interstate commerce free and open, and beyond the power of the state to make any regulation trenching on its freedom. Crutcher v. Kentucky, 141 U. S. 47, 58, (11 Sup. Ct. 851); Lcisy v. Hardin, 135 U. S. 100, (10 Sup. Ct. 681); Lyng v.. Michigan, 135 U. S. 161, (10 Sup. Ct. 725); Brennan v. City of Titusville, 153 U. S. 289, (14 Sup. Ct. 829); Bobbins v. 'Taxing Dist., 120 U. S. 489, (7 Supt. Ct. 592). The state statute imposes a tax on the act of an agent soliciting-and receiving orders for the sale of goods, and is, of course, a restriction, and to that extent a prohibition of interstate commerce, as the act applies to persons selling-outside and within the state. It is a tax on the business, and therefore is a clear restriction and limitation and regulation of interstate commerce, when it is applied to sales of merchandise outside the state, and brought into it, It will not do to say that the act is a mere police regulation, within the unlimited power of the state, and for two reasons: First. The act is a revenue or tax act, having for its sole purpose the production of revenue. The evil of spirituous liquors can justly be said not to enter into the statute, and, if at...