State v. Scott

• Decision Date: 17 February 1897
• Parties: STATE v. SCOTT.
• Court: Tennessee Supreme Court

39 S.W. 1

98 Tenn. 254

STATE v. SCOTT.

Supreme Court of Tennessee.

February 17, 1897

Appeal from criminal court, Davidson county; J. M. Anderson, Judge.

James McKinney Scott was indicted under the statute for soliciting pictures for enlargement by his principal in another state without having first paid a privilege tax and obtained a license. The indictment was quashed, and the state appeals. Affirmed.

G. W Pickle, Atty. Gen., for the State.

P. M Ester, for appellee.

CALDWELL J.

J. M Scott is under presentment for doing a privileged business without license. The substance of the charge is that he, as agent of the Chicago Portrait Company, a foreign corporation had solicited and received orders from citizens and residents of Davidson county, Tenn., for the enlargement of pictures, and forwarded them to his principal at Chicago, Ill., where the work was to be done; and that he, though not himself a photographer in this state, had done this without first paying a privilege tax and obtaining a license, as required by law. The judge of the criminal court quashed the presentment, and the state has appealed in error.

The presentment is in good form, and was found and returned with the requisite ceremony. This is virtually conceded. But the motion to quash goes beyond mere matters of pleading and regularity of action by the grand jury. It challenges the law, alleged to have been violated, as an illegal interference with interstate commerce. The learned judge below seems to have entertained that view of the law, and, for that reason, quashed the presentment. The statute in question provides that "persons, other than photographers of this state, soliciting pictures to be enlarged outside of this state," shall pay, in every county where so engaged, "each per annum, $25.00," as a privilege tax,-Acts 1895 (2d Sess.) c. 4, § 3, pp. 579, 588; and that any one presuming to exercise the privilege referred to without first paying that tax shall be guilty of a misdemeanor, and subject to be fined not less than $50 nor more than $500,-Id. § 17, p. 595.

Is this a valid law? Does it impose a burden upon interstate commerce? When epitomized, it declares the soliciting of pictures in this state, to be enlarged elsewhere, to be a privilege, and requires persons exercising that privilege to pay a prescribed tax. Undoubtedly the thing privileged is the occupation, for the time being, of agents, and the tax is laid upon them directly, and without reference to citizenship. That occupation, however, flows from and is a part of the contemplated business between citizens of different states, and those agents are but the representatives of their principals in other states, who pay them for their labor. The contemplation is that these soliciting agents will take orders from citizens of this state, and forward them, with the small pictures, to citizens of other states, who will, in those states and for the stipulated price, make enlarged pictures as directed, and send them thence into this state, to or for the persons giving the orders, respectively. Enlargement of pictures by citizens of other states for citizens of this state is the primary matter, though the tax is, in terms, laid upon other persons engaged, as agents, in the promotion thereof. The process of enlarging involves the making of a larger picture after the image or likeness of a smaller one. When this is done by one person, upon the order of another, and the larger picture is delivered for a consideration, the parties have certainly had a commercial transaction; and, if they be citizens of different states, and the picture be made in one state and sent into the other state as indicated in the statute and averred in the presentment, the transaction, as between the principals, is, as obviously, interstate commerce. The latter is a commercial transaction between citizens of different states, and that is what interstate commerce means. Whether the transaction be conducted directly and entirely by the principals themselves, or in part by the agency of another, is of no consequence; it is interstate commerce in both instances. So there is no room for doubt that the enlargement of pictures referred to in the statute is, to all intents and purposes, interstate commerce.

It may be said, though, and truly, as has been seen, that no tax is in terms, laid upon the business of enlarging pictures, nor upon the principals engaged in that business, nor upon the product, but only upon soliciting agents. Yet this makes no material difference. It renders the statute neither better nor worse in its ultimate legal effect, the agency of the intermediaries, who are directly taxed, being one of the means by which citizens of other states have commercial intercourse with citizens of this state. Instead of coming into this state themselves to solicit orders, those citizens of other states employ agents to do that for them; and what the agents do has the same relation to, and the same effect upon, the ultimate and finished transaction, as would the same thing if done in person by those citizens of other states. With respect to that particular matter, the agents stand before the law exactly as their principals would stand if they had come on the same mission, and, if the agents can be lawfully taxed, so could the principals, and vice versa. These soliciting agents are only representatives in this state of their principals in other states, and any tax laid upon them in their representative capacity is virtually a tax upon their principals (Robbins v. Taxing Dist., 120 U.S. 489, 7 S.Ct. 592; Brennan v. City of...