State v. Willingham

• Decision Date: 15 November 1900
• Citation: 9 Wyo. 290,62 P. 797
• Parties: STATE v. WILLINGHAM
• Court: Wyoming Supreme Court

62 P. 797

9 Wyo. 290

STATE v. WILLINGHAM

Supreme Court of Wyoming

November 15, 1900

RESERVED questions from the District Court, Laramie County HON. RICHARD H. SCOTT, Judge.

The facts in this case were stated by Mr. Justice Corn, who delivered the opinion of the court, as follows:

The defendant was convicted before a justice of the peace of a violation of an ordinance of the city of Cheyenne, entitled "An ordinance concerning city licenses," and sentenced to pay a fine of $ 50 and costs. The ordinance is as follows:

"Section 1. That any person or persons, company or corporation, who shall, directly or indirectly, keep a store, or sell, vend or retail any goods, wares, or merchandise, without being first duly authorized by a license, as hereinafter provided, the person or persons, company or corporation, so offending, shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars; Provided, this ordinance shall not be construed to apply to the sale of goods, wares, or merchandise, by merchants or other persons, who pay an annual tax upon such goods, wares, or merchandise, assessed according to the revenue laws of this city; Provided, further, that this ordinance shall not apply to traveling agents, who sell exclusively by sample or otherwise, to regular merchants doing business in this city.

"Sec. 2. That from and after the passage and approval of this ordinance any person or persons, company or corporations, not paying an annual tax as hereinbefore provided, shall pay a license of twenty-five dollars per month; Provided, that no license shall be issued for less time than one month."

It appears that the defendant, as agent of the Chicago Portrait Company, a concern engaged in the business of making portraits and picture frames in Chicago, solicited orders in Cheyenne; and the portraits and frames ordered were subsequently shipped from Chicago to Cheyenne, being consigned to the Chicago Portrait Company. The defendant was engaged in delivering them to his customers and collecting the prices agreed upon at the time the orders were given, when he was arrested. The company had no place of business in the State of Wyoming, and was doing business in this State only as was being done by Willingham at the time of his arrest. The persons to whom said portraits and frames were delivered were not regular merchants doing business in the city of Cheyenne paying taxes to the city, and the defendant had no license. He appealed to the District Court, which has reserved certain questions for the decision of this court. The questions are very long, and the substance of them is sufficiently stated in the opinion of the court.

W. R. Stoll, for the defendant.

The defendant was engaged in interstate commerce, and as applied to him the ordinance is void. (Robbins v. Tax. Dist., 120 U.S. 489; Asher v. State, 128 U. S, 129; Stoutenburgh v. Hennick, 129 id., 141; Brennan v. Titusville, 153 id., 287; Clements v. Casper, 4 Wyo., 494; In re Spain, 47 F. 208; In re Mitchell, 62 id., 576; Ex parte Hough, 69 id., 330; Ex parte Holman (Tex.), 36 S. W., 441; State v. Scott (Tenn.), 39 S. W., 1; Talbutt v. State, 39 Tex. Cr. App., 64; State v. Lichtenstein (W. Va.), 28 S. E., 753; Baxter v. Thomas, 4 Okla., 605; State v. O'Connor (N. D.), 67 N. W., 824; State v. Rankin (S. D.), 76 N. W., 299; State v. Coop (S. C.), 30 S. E., 609; City of Laurens v. Elmore, 33 id., 560; In re Nichols, 48 F. 164; In re Tyerman, id., 167; Ames v. People (Colo.), 55 P. 725; Gibbons v. Ogden, 9 Wheat., 1; Brown v. Md., 12 id., 419; The Passenger Cases, 7 How., 283; Cooley v. Board, 12 id., 299; Almy v. People, 24 id., 169; Veazie v. Moor, 14 id., 568; Gilman v. Phil., 3 Wall., 713; R. R. Co. v. Pa., 15 id., 232; Welton v. State, 91 U.S. 275; Mobile v. Kimball, 102 U.S. 691; Ferry Co. v. Com., 114 id., 196; Brown v. Houston, id., 622; Cardwell v. Bridge Co., 113 id., 205, Walling v. People, 116 id., 446; Pickard v. Pullman C. Co., 117 id., 34; Ry. Co. v. People, 118 id., 557; Kennedy v. People, 49 P. 373.)

The ordinance violates our constitutional provision as to equality and uniformity of taxation. (Ames v. People, 55 P. 725; Buffalo v. Reamey, 55 N. Y. S., 792.)

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE

(after stating the facts).

There are two principal questions presented in this case: First, whether the ordinance is void because in violation of the interstate commerce clause of the Constitution of the United States; and, second, whether it is void as in violation of the provision of Section 28, Article 1, of our State constitution that "all taxation shall be equal and uniform."

The principles which control the decision of the first question, with the authorities, were set out in a very clear and well-considered opinion by Chief Justice Groesbeck in the case of Clements v. The Town of Casper, 4 Wyo. 494, 35 P. 472. We do not deem it necessary to rehearse the reasoning of the court in that case. But since that decision was rendered the Supreme Court of the United States have again passed upon the question in a case where the facts were almost identical with those in the one before us. Brennan v. Titusville, 153 U.S. 289, 38 L.Ed. 719, 14 S.Ct. 829. In that case a maker of portraits and picture frames in Chicago had sent his agent into the State of Pennsylvania to solicit orders for pictures and picture frames by going personally to citizens and residents of that State. Upon receiving orders for pictures and frames the agent forwarded such orders to the manufacturer in Chicago, where the goods were made and shipped by him to the purchasers in Titusville, by railroad freight or express, the express companies or the manufacturer's agents collecting the price of the goods and forwarding the amounts to him at Chicago. The ordinance of the city of Titusville required that persons so employed in canvassing or soliciting in the city should procure a license from the mayor, paying therefor certain sums fixed by the ordinance: but providing that its provisions should not apply to persons selling by samples to manufacturers or licensed merchants or dealers residing and doing business in said city. After examining the authorities the court decided that it must be held that the license tax imposed upon the defendant was a direct burden upon interstate commerce, and was, herefore, beyond the power of the State. Those decisions are controlling in this case, and the ordinance in question must be held to be void as in conflict with the interstate commerce clause of the constitution.

The second proposition, that the ordinance is void because in conflict with the provision of the constitution of this State requiring that "all taxation shall be equal and uniform," stands upon entirely different ground.

The sovereignty may, in the discretion of its Legislature, levy a tax on every species of property within its jurisdiction, or on the other hand, it may select any particular species of property, and tax that only, if in the opinion of the Legislature that course will be wiser. And what is true of property is true of privileges and occupations also; the State may tax all, or it may select for taxation certain classes and leave the others untaxed. Considerations of general policy determine what the selection shall be in such cases, and there is no restriction on the power of choice unless one is imposed by constitution. Cooley on Taxation 570. In a number of the States it has been held that the constitutional requirement of equality and uniformity does not apply at all to the taxation of occupations, owing to the fact that the taxation of all occupations equally would work the greatest possible injustice and is impossible, in practice. But, if applicable at all, it does not deprive the Legislature of the power of dividing the objects of taxation into classes. It merely obliges the Legislature to impose an equal burden upon all those who find themselves in the same class. State v. Lathrop, 10 La. Ann. 398. To be uniform, taxation need not be universal. Certain objects may be made its subject, and...