The City of Indianapolis v. Bieler

• Decision Date: 15 March 1894
• Docket Number: 16,798
• Citation: 36 N.E. 857,138 Ind. 30
• Parties: The City of Indianapolis v. Bieler
• Court: Indiana Supreme Court

36 N.E. 857

138 Ind. 30

The City of Indianapolis v. Bieler

No. 16,798

Supreme Court of Indiana

March 15, 1894

Petition for Rehearing Overruled May 18, 1894.

From the Marion Circuit Court.

The judgment is reversed, with directions to grant a new trial and for further proceedings in accordance with this opinion.

L. O Bailey, A. Q. Jones, A. Baker, E. Daniels and J. E. Scott for appellant.

C. A. Korbly, W. O. Ford, D. W. Howe and C. F. Coffin, for appellee.

OPINION

Howard, C. J.

By section 23 of "An act concerning the incorporation and government of cities having more than one hundred thousand population according to the last preceding United States census, and matters connected therewith, and declaring an emergency," approved March 6th, 1891, Acts 1891, p. 137 (148), it is provided, amongst other things, that such cities shall have power "to tax, license and regulate distilleries and breweries, and the depots or agencies established in said city of all breweries and distilleries."

By virtue of the authority so given, the city of Indianapolis adopted the following:

"General Ordinance No. 17, 1891.

"An ordinance designating the license fee to be paid the city of Indianapolis by distilleries and breweries, and the depots or agencies in said city of all breweries and distilleries, and all wholesale dealers in malt liquor, as provided for by the Act of the General Assembly of Indiana, approved March 6, 1891.

"Section 1. Be it ordained by the common council of Indianapolis, that hereafter every person or persons, firm, corporation or company carrying on a distilling or brewing business within said city of Indianapolis, and all depots or agencies established in said city, of all breweries and distilleries, and all wholesale dealers in malt liquors, except as hereinafter provided, shall, before they are permitted to carry on their said business, pay to the city of Indianapolis, Indiana, for the general use and benefit of said city, the sum of one thousand dollars, which said sum of one thousand ($ 1,000) dollars shall be the annual city license fee to be charged.

"On payment of said sum of one thousand ($ 1,000) dollars, the applicant for such license shall present the receipt thereof to the city comptroller of said city, and such comptroller shall thereupon issue to such applicant a license to carry on and conduct such distilling or brewing business, or such depot or agency, or such wholesale dealing in malt liquor, as the case may be, for one year from such time, which license shall be signed by the mayor of said city.

"The terms of this ordinance, however, shall not apply to any resident engaged in the wholesale business of bottling, or bottling and vending bottled beer.

"Section 2. Said city comptroller shall keep a register of the names of every person or persons, firm, company, corporation, depot, agency or dealer receiving from said city such license, with the date when issued and the expiration of the same; for which services a comptroller's fee of one dollar ($ 1) shall be paid by the person receiving such license.

"Section 3. Any person or persons, firm, company, or corporation carrying on a distilling or brewing business in said city, or the owners or managers of the depots or agencies of any brewing or distilling business, or any wholesale dealer or dealers in malt liquor, who shall violate any of the provisions of this ordinance shall, upon conviction, be fined in any sum not exceeding one hundred dollars ($ 100), and each day's continuance in violation of this ordinance shall constitute a separate offense.

"Section 4. This ordinance shall take effect and be in force from and after its passage and publication one day each week for two successive weeks in 'The Sun,' a daily newspaper of general circulation, printed and published in the city of Indianapolis, Marion county, Indiana."

The appellee was arrested and fined in the police court of the city of Indianapolis, for the violation of sections one and three of this ordinance.

On appeal to the Marion Circuit Court there was a finding and judgment for the appellee, from which the city brings this appeal.

From the answer filed by appellee in the circuit court, to which answer a demurrer was overruled, it appears that at the time of the passage and taking effect of said ordinance the appellee was, and still is, the local agent in and for the city of Indianapolis, of the Anheuser-Busch Brewing Association, a corporation located and having its chief office and place of business in the city of St. Louis, in the State of Missouri, and organized under the laws of that State; that for a long time before and since the passage of said ordinance said association has been engaged in the manufacture of beer in the city of St. Louis, and in selling the same to citizens of Indianapolis and other cities and towns in the State of Indiana, said beer being shipped to, and sold by, appellee, partly in barrels, partly in kegs and partly in bottles; that before and since the passage of said ordinance, said association had, and still has, a depot in said city of Indianapolis, in charge of appellee as its local agent, where the beer shipped by said association for the supply of its customers in the city of Indianapolis and other places in the State of Indiana is temporarily stored until the same is disposed of and delivered by appellee to said customers; the said depot has been, and still is, used by said association only as incident to, and as a means of carrying on, its said business of supplying its customers in said city of Indianapolis and elsewhere in the State of Indiana, said depot being provided with facilities for what is called "cold storage," without which said beer could not be kept in good condition until delivered to its customers; that it has heretofore been, and still is, the custom of said association to ship in barrels and kegs and bottles, beer manufactured by it and designed for sale to its customers in Indianapolis and elsewhere in the State of Indiana, to appellee as its agent in said city, by whom it is then stored in said depot until taken out by him for delivery to said customers, all of the sales so made by him being at wholesale and none at retail.

In addition to the facts so averred, it was agreed on the trial, as shown by the bill of exceptions, that there are three breweries in the city of Indianapolis, all, however, owned and operated by one association, also located in said city; that there are but three persons, or firms, residing in said city who are engaged in bottling and vending bottled beer; that besides the corporation represented by appellee, there are several corporations, firms, and persons who own and control breweries at places outside of Indianapolis, and who are engaged in the business of selling at wholesale the beer manufactured by them to citizens of Indianapolis and of other cities and towns in Indiana, by means of depots, agencies and agents located in the city of Indianapolis; that some of these, including the corporation represented by appellee, are located outside the State of Indiana, while the others are located within the State, but without the city of Indianapolis; that the cost of issuing the license provided for in the ordinance does not exceed two dollars.

On this appeal the appellee contends that the ordinance in question is invalid, and in support of such contention advances the following propositions:

"First. That the ordinance in question is void in so far as it authorizes the taxation or licensing of depots or agencies of nonresident breweries engaged in interstate commerce.

"Second. That the ordinance is void because it makes unjust and illegal discriminations between those engaged in the same business, and tends to create monopolies.

"Third. That the illegal portions of the ordinance are so essential to, and are so intimately connected with, the general plan of it, as to render the whole ordinance illegal.

"Fourth. That neither the police power nor the taxing power delegated to the city by the city charter act, authorized the city to exact the license fee of $ 1,000."

As to the first proposition, it is now well settled that the power of congress is supreme over interstate commerce, as well as over foreign commerce; even so far that the failure of Congress to legislate upon the subject does not authorize interference by the State. Crutcher v. Kentucky, 141 U.S. 47, 35 L.Ed. 649, 11 S.Ct. 851; Wabash, etc., R. W. Co. v. Illinois, 118 U.S. 557, 30 L.Ed. 244, 7 S.Ct. 4; Brimmer v. Rebman, 138 U.S. 78, 34 L.Ed. 862, 11 S.Ct. 213.

In McLaughlin v. City of South Bend, 126 Ind. 471, 26 N.E. 185, it was said by this court: "The decisions of the Supreme Court of the United States declare that an ordinance requiring a license fee from agents representing citizens of another State, who offer goods not in this State for sale by sample, is void, because it assumes to establish a regulation affecting commerce between the States. McCall v. California, 136 U.S. 104, 34 L.Ed. 391, 10 S.Ct. 881; Stoutenburgh v. Hennick, 129 U.S. 141, 32 L.Ed. 637, 9 S.Ct. 256; Asher v. Texas, 128 U.S. 129, 32 L.Ed. 368, 9 S.Ct. 1; Robbins v. Shelby County Taxing District, 120 U.S. 489, 30 L.Ed. 694, 7 S.Ct. 592. * * * If the goods offered for sale had been in this State at the time of the sale, although there was no delivery to the purchaser at that time, the Federal decisions would not, as we believe, rule the case."

It is clear from the authorities, then, that if the goods are located in another State at the time they are sold in this State, the agent so selling the goods can not be required to take out a license. Robbins v. Shelby County Taxing Dist., supra, and other cases cited above; Martin v. Town...