State v. Wheelock

Decision Date10 October 1895
Citation64 N.W. 620,95 Iowa 577
PartiesSTATE OF IOWA[*] V. A. WHEELOCK, Appellant
CourtIowa Supreme Court

Appeal from Shelby District Court.--HON. A. B. THORNELL, Judge.

The defendant was convicted of the crime of being an itinerant vendor of drugs and nostrums and publicly professing to cure diseases and injuries without a license. From the judgment which imposes a fine of one hundred dollars, he appeals.-- Affirmed.

Affirmed.

Pfau & Young and Whitney Bros. for appellant.

The power vested in Congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes is a power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other than those prescribed in the Constitution.

Leisy v. Hardin, 135 U.S. 100, 34 L.Ed. 128, 3 Inters. Com. Rep. 36; Gibbons v. Ogden, 22 U.S. 9 Wheat. 1, 6 L.Ed 23; Brown v. Maryland, 25 U.S. 12 Wheat. 419, 6 L.Ed. 678; Bowman v. Chicago & N.W. R. Co. 125 U.S. 465, 31 L.Ed. 700, 1 Inters. Com. Rep. 823.

While by virtue of its jurisdiction over persons and property within its limits, a state may provide for the security of the lives, limbs, health and comfort of persons and the protection of property so situated, yet a subject-matter which has been confined by the Constitution exclusively to Congress is not within the jurisdiction of the police power of the state, unless placed there by congressional action.

Henderson v. Wickham, 92 U.S. 259, 23 L.Ed. 543; Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 24 L.Ed. 527; Walling v. Michigan, 116 U.S. 446, 29 L.Ed. 691; Robbins v. Shelby County Tax. Dist. 120 U.S. 489, 30 L.Ed. 694; Leisy v. Hardin, supra.

Whenever a particular power of the general government is one which must necessarily be exercised by it, and Congress remains silent, this is not only not a concession that the powers reserved by the states may be exerted as if a specific power had not been elsewhere reposed, but, on the contrary, the only legitimate conclusion is that the general government intended that the power should not be affirmatively exercised.

Mobile County v. Kimball, 102 U.S. 691, 26 L.Ed. 238; Brown v. Houston, 114 U.S. 622, 29 L.Ed. 257; Wabash, St. L. & P. R. Co. v. Illinois, 118 U.S. 557, 30 L.Ed. 244; Robbins v. Shelby County Tax. Dist. 120 U.S. 489, 30 L.Ed. 694; Leisy v. Hardin, 135 U.S. 100, 34 L.Ed. 128, 3 Inters. Com. Rep. 36.

The license is in effect a tax upon the goods shipped and sold by the licensee, upon the property of a nonresident while in the hands of the owner, and, before the same has become a part of the mass of the property of the state seeking to tax it, is a measure regulating interstate commerce, and therefore void.

Brown v. Maryland, 25 U.S. 12 Wheat. 419, 6 L.Ed. 678; Leloup v. Port of Mobile, 127 U.S. 640, 32 L.Ed. 311, 2 Inters. Com. Rep. 134; Robbins v. Shelby County Tax. Dist. and Wabash, St. L. & P. R. Co. v. Illinois, supra; Cook v. Pennsylvania, 97 U.S. 566, 24 L.Ed. 1015; State Freight Tax Case, 82 U.S. 15 Wall. 232, 21 L.Ed. 146; Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U.S. 1, 24 L.Ed. 708; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 29 L.Ed. 158; Wabash, St. L. & P. R. Co. v. Illinois, supra; Ratterman v. Western U. Teleg. Co. 127 U.S. 411, 32 L.Ed. 229, 2 Inters. Com. Rep. 59.

The smallness of the license or tax does not eliminate its regulative character.

Brown v. Maryland, 25 U.S. 12 Wheat. 439, 6 L.Ed. 685; State Freight Tax Case, 82 U.S. 232, 21 L.Ed. 146.

The purpose for which the license for selling proprietary medicine in the state of Iowa is exacted does not render the statute constitutional if in effect it lavs a burden upon interstate commerce.

State Freight Tax Case, supra.

Because the statute in question is indiscriminative it is not for that reason constitutional, in so far as it applies to the facts in the case at bar.

Bowman v. Chicago & N.W. R. Co. 125 U.S. 507, 31 L.Ed. 714, 1 Inters. Com. Rep. 825; Robbins v. Shelby County Tax. Dist. 120 U.S. 489, 30 L.Ed. 694; State Freight Tax Case, supra.

The right to tax applies equally as well to the principal as to agent.

Robbins v. Shelby County Tax. Dist. supra.

Interstate commerce cannot be interdicted or regulated under cover of police power.

Leisy v. Hardin, 135 U.S. 100, 34 L.Ed. 128, 3 Inters. Com. Rep. 36; Cooley v. Port Wardens, 53 U.S. 12 How. 299, 13 L.Ed. 996; Robbins v. Shelby County Tax. Dist. and Bowman v. Chicago & N.W. R. Co. supra.

Milton Remley and Thos. A. Cheshire for the state.

The state has power to levy a tax upon occupations.

State v. Bair (Iowa) 60 N.W. 486; Howe Mach. Co. v. Gage, 100 U.S. 676, 25 L.Ed. 754; Hinson v. Lott, 75 U.S. 8 Wall. 148, 19 L.Ed. 387; Woodruff v. Parham, 75 U.S. 8 Wall. 123, 19 L.Ed. 382; Nathan v. Louisiana, 49 U.S. 8 How. 73, 12 L.Ed. 992; Brown v. Maryland, 25 U.S. 12 Wheat. 419, 6 L.Ed. 678; Ward v. Maryland, 79 U.S. 12 Wall. 418, 20 L.Ed. 449; Kirtland v. Hotchkiss, 100 U.S. 499, 25 L.Ed. 562; Wiggins Ferry Co. v. East St. Louis, 102 Ill. 574; Corson v. State, 57 Md. 266; Marshalltown v. Blum, 58 Iowa 184, 43 Am. Rep. 115; Pacific Junction v. Dyer, 64 Iowa 38.

The statute under which defendant was indicted does not discriminate against nonresidents.

State v. Gouss, 85 Iowa 21; State v. Parsons, 124 Mo. 436.

The law in question is within the police power of the state as well as the taxing power.

Thorpe v. Rutland & B. R. Co. 27 Vt. 140, 62 Am. Dec. 625; Com. v. Alger, 7 Cush. 84; Slaughter-House Cases, 83 U.S. 16 Wall. 36, 21 L.Ed. 394; Council Bluffs v. Kansas City, St. J. & C. B. R. Co. 45 Iowa 342, 24 Am. Rep. 773; Tiedeman, Pol. Powers, section 85; Gibbons v. Ogden, 22 U.S. 9 Wheat. 1, 6 L.Ed. 23.

After the box, or barrel, or crate in which goods are shipped is opened, the articles contained therein, because done up in small boxes, bottles, or cans, cannot be called and treated as original packages.

Keith v. State, 91 Ala. 2, 10 L. R. A. 430; State v. Parsons, supra; Com. v. Schollenberger, 156 Pa. 201, 22 L. R. A. 155, 4 Inters. Com. Rep. 488; In re Harmon, 43 F. 372; Smith v. State, 54 Ark. 248; State v. Chapman, 1 S.D. 414, 10 L. R. A. 432.

OPINION

Robinson, J.

The conviction of the defendant was had under section 10 of chapter 75 of the Acts of the Eighteenth General Assembly, as amended by section 2 of chapter 137 of the Acts of the Nineteenth General Assembly and section 3 of chapter 83 of the Acts of the Twenty-first General Assembly, which contains the following: "Any itinerant vendor of any drug, nostrum, ointment or appliance of any kind intended for the treatment of diseases or injury, who shall by writing or printing or by any other method publicly profess to cure or treat diseases or injury or deformity by any drug, nostrum, or manipulation, or other expedient shall pay a license of one hundred dollars per annum, to be paid to the treasurer of the commission of pharmacy. * * * Any person violating this section shall be deemed guilty of a misdemeanor and shall upon conviction pay a fine of not less than one hundred and not more than two hundred dollars." In July, 1894, the defendant was engaged in the business of selling, on commission, proprietary medicines which were manufactured in the state of Minnesota by J. R. Watkins, and were owned by him until sold. He was a resident of Minnesota, and the medicines were placed in glass bottles, securely corked, sealed, and capped, and were brought into the state, and sold in the original packages in which they were placed by the manufacturer. The medicines as prepared, and as received in this state by the defendant, were a legitimate subject of commerce, and were not injurious to the public health. They were transported by Watkins from the place where they were manufactured to Harlan, in this state, where they were received by the defendant, and there offered for sale. In making the sales he traveled from place to place with a team and wagon, and, while so engaged, sold one of the packages to one M. B. Howe, in Shelby county, in the condition in which it was sent from Minnesota. He did not at that or any other time represent himself to be a physician, nor assume to determine the ailments of the people; but he distributed printed circulars of Watkins', which represented the medicines to be a cure for certain diseases named in the circulars, and the defendant represented that the medicine sold by him was as stated in the circular. At the time the business described was carried on, and the sale specified was made, the defendant did not have a license as contemplated by the statute, nor was he a physician or registered pharmacist. At that time, Howe was a resident of this state.

The appellant contends that the acts under which he was convicted are repugnant to that part of section 8 of article 1 of the constitution of the United States which provides that the congress shall have power to regulate commerce among the several states, and the only question we are required to determine is whether the claim thus made is well founded. The record clearly shows that it must be regarded, for the purposes of this case, as conceded that the defendant was an itinerant vendor of drugs and nostrums, without a license within the meaning of the statutes of this state which we have set out, and that the medicines he sold were in the original packages in which they were shipped into this state. It is true that the power vested in congress to regulate commerce among the several states is a power complete in itself to prescribe the rules by which that commerce is to be governed; that it is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a...

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