Wagner v. City of Covington Gilligan v. Same v. 10 11, 1919
| Decision Date | 08 December 1919 |
| Docket Number | Nos. 61,62,s. 61 |
| Parties | WAGNER et al. v. CITY OF COVINGTON. GILLIGAN v. SAME. Argued Nov. 10 & 11, 1919 |
| Court | U.S. Supreme Court |
Messrs. Harry Brent Mackoy and W. H. Mackoy, both of Cincinnati, Ohio, for plaintiffs in error.
[Argument of Counsel from pages 95-98 intentionally omitted] Mr. A. E. Stricklett, of Covington, Ky., for defendant in error.
This was an action brought by plaintiffs in error in a state court of Kentucky against the city of Covington, a municipal corporation of that state, to recover license fees theretofore paid by them under certain ordinances of the city for the conduct of their business in Covington, and to enjoin the enforcement against them of a later ordinance calling for further like payments. The several ordinances, each in its turn, required all persons carrying on certain specified businesses in the city to take out licenses and pay license fees; among others, the business of wholesale dealer in what are known as 'soft drinks.' Plaintiffs were and are manufacturers of such drinks, having their factory and bottling works in the city of Cincinnati, in the state of Ohio, on the opposite side of the Ohio river from Covington. They have carried on and do carry on the business of selling in Covington soft drinks, the product of their manufacture, in the following manner: They have a list of retail dealers in Covington to whom they have been and are in the habit of making sales. Two or three times a week a wagon or other vehicle owned by plaintiffs is loaded at the factory in Cincinnati and sent across the river to Covington, and calls upon the retail dealers mentioned, many of whom have been for years on plaintiffs' list and have purchased their goods under a general understanding that plaintiffs' vehicle would call occasionally and furnish them with such soft drinks as they might need or desire to purchase from plaintiffs. When a customer's place of business is reached by the vehicle the driver goes into the storeroom and either asks or looks to see what amount of drinks is needed or wanted. He then goes out to the vehicle and brings from it the necessary quantity, which he carries into the store and delivers to the customer. Upon his trips to Covington he always carries sufficient drinks to meet the probable demands of the customers, based on past experience; but, with the exception of occasional small amounts carried for delivery in response to particular orders previously received at plaintiff's place of business in Cincinnati, all sales in Covington are made from the vehicle by the driver in the manner mentioned. Sometimes the driver succeeds in selling there the entire supply thus carried upon the wagon; sometimes only a part thereof; or he may return after having made but a few sales, or none at all, in which event he carries the unsold supply back to plaintiffs' place of business in Cincinnati. The soft drinks in question are delivered in stopped bottles or siphons, according to their nature, and these are placed (at the bottling works) in separate wooden or metal cases, each case being open at the top and holding a certain number of bottles or siphons, according to the nature of the drinks and the custom of the trade. The filled bottles or siphons are carried upon the vehicle, sold, and delivered in these cases; each case remaining entire and unbroken, and nothing less than a case being sold or delivered. The retail dealers usually pay cash, and purchase only the contents of the bottles, while the bottles and cases remain the property of plaintiffs and are subsequently collected, when empty, by plaintiffs' drivers or agents on their regular visits. There are, however, a few customers who pay for and thereafter own the bottles in which distilled water is delivered. The ordinances were and are respectively applicable to all wholesale dealers in such soft drinks in Covington, whether the goods were or are manufactured within or without the state.
The trial court, and on appeal, the Court of Appeals of Kentucky, gave judgment for defendant, overruling the contention of plaintiffs that the ordinances as carried into effect against them were repugnant to the 'commerce clause' (article 1, § 8) of the Constitution of the United States (177 Ky. 385, 197 S. W. 806), and upon this federal question the case is brought here by writ of error.
It is important to observe the precise point that we have to determine. It is indisputable that with respect to the goods occasionally carried upon plaintiff's wagon from one state to the other in response to orders previously received at their place of business in Cincinnati, plaintiffs are engaged in interstate commerce, not subject to the licensing power of the Kentucky municipality. The Court of Appeals in the present case, in line with its previous decisions in City of Newport v. Wagner, 168 Ky. 641, 646, 182 S. W. 834, Ann. Cas. 1917A, 962, and City of Newport v. French Brothers Bauer Co., 169 Ky. 174, 183 S. W. 532, recognizing the authority of the decisions of this court bearing upon the subject, conceded that this part of plaintiffs' business was not subject to state regulation. 177 Ky. 388, 197 S. W. 806. At the same time the court held that with respect to the remaining and principal part of the business conducted in Covington, that which consists in carrying a supply of goods from place to place upon wagons, exposing them for sale, soliciting and negotiating sales, and immediately delivering the goods sold, plaintiffs were subject to the licensing ordinances; and it is with this alone that we have to deal. If, with respect to this portion of their business, plaintiffs may be subjected to the regulatory power of the state acting through the municipality, we are not concerned with the question whether the general language of the ordinances, if applied with respect to some other method of dealing with goods brought from state to state, might be repugnant to the federal Constitution.
From the facts recited it is evident that, in essence, that part of plaintiffs' business which is subjected to regulation is the business of itinerant vender or peddler; a traveling from place to place within the state, selling goods that are carried about with the seller for the purpose. Plaintiff...
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