Wrought Iron Range Co. v. Campen

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the case).
• Citation: Wrought Iron Range Co. v. Campen, 135 N. C. 506, 47 S. E. 658 (N.C. 1904)
• Decision Date: 27 May 1904
• Parties: WROUGHT IRON RANGE CO. v. CAMPEN, Sheriff.

47 S.E. 658

135 N.C. 506

WROUGHT IRON RANGE CO. v. CAMPEN, Sheriff.

Supreme Court of North Carolina

May 27, 1904

Appeal from Superior Court, Pamlico County; Moore, Judge.

Action by the Wrought Iron Range Company against A. B. Campen sheriff of Pamlico county. From a judgment for defendant plaintiff appeals. Reversed.

This action was brought to restrain the collection of a license tax, and to recover the property levied upon and seized by the sheriff to enforce the payment of it. The case was heard upon the complaint, treated as a case agreed, the facts alleged therein being admitted. The complaint is as follows:

"The plaintiff complains of the defendant, and alleges:

(1) That the Wrought Iron Range Company, the plaintiff in this case, is a corporation duly organized and created under the laws of the state of Missouri, with its general offices located in the city of St. Louis, Mo., in which city and state it also has a factory, in which are manufactured all the ranges sold by its traveling salesmen throughout the United States, and the plaintiff has been engaged during the year 1903 in selling ranges in Pamlico county, North Carolina, as is hereinafter set out.

(2) That the defendant is the duly qualified and acting sheriff of Pamlico County, North Carolina.

(3) That the manner in which said company has sold all its ranges and transacted all its business in Pamlico County, North Carolina, during the year 1903, prior to the filing of this suit, and the manner in which it proposes to hereinafter sell its ranges and conduct its business so long as it remains in said county and state, is as follows: The agents employed by plaintiff in the sale of its ranges and the transaction of its business in said county and state are as follows: S. H Dew, officially designated by plaintiff as division superintendent; _____, officially designated by plaintiff as traveling salesmen; and _____, officially designated by plaintiff as deliveryman. Plaintiff has other salesmen and deliverymen operating in North Carolina, but the names only of those operating in Pamlico county in 1903 are hereinbefore set out.

(4) That each and every one of said agents of said plaintiff in said county of Pamlico, state of North Carolina, is paid by the plaintiff for his services to said plaintiff a stipulated and contractual compensation, together with his necessary expenses, while engaged in the sale or delivery of plaintiff's ranges, or any other services rendered by them for said plaintiff in said county and state. Further than this stipulated compensation, no one of said agents has any monetary or financial interest whatever in the sales, proceeds of sales, or business transacted by plaintiff in said county and state.

(5) That each of said agents hereinbefore referred to as traveling salesmen was furnished by plaintiff with a wagon, team, and sample range, all of which were and are the sole and undivided property of plaintiff, and each of said salesmen was assigned to a certain and determinate territory in said Pamlico county by the agent hereinbefore referred to as division superintendent.

(6) That each of said traveling salesmen, in his appropriate territory within the limits of said Pamlico county, exhibited his sample range to prospective purchasers, and solicited their orders for ranges similar in all respects to the samples exhibited, to be delivered to purchasers within thirty days from date of said orders. In no instance in said county and state did said traveling salesmen solicit orders for, sell or deliver to any purchaser, the sample ranges intrusted to them by plaintiff, nor did either of said salesmen deliver any ranges to purchasers in said county and state, the orders for which had been obtained either by himself or the other traveling salesmen hereinbefore referred to.

(7) That, in all cases in said county and state where orders were obtained by said traveling salesmen, purchasers were required to sign and did sign and deliver to said salesmen two promissory notes, of equal amount, and of the same tenor and date, one of which was made payable in November, 1904, and the other in November, 1905, conditioned for the delivery at the premises of the purchaser within thirty days from date of a No. 1,900 range, same as sample exhibited, and to be void only upon the condition that said plaintiff refused to deliver said range as specified in notes, and for no other cause whatever.

(8) That all orders obtained by said salesmen for the future delivery of ranges under the terms and conditions aforesaid were by the respective salesmen who obtained or secured said orders turned over to plaintiff's agent hereinbefore referred to as division superintendent.

(9) That said division superintendent, after investigating the financial conditions of said purchaser, selected such as he regarded as responsible for their contracts, turned their orders over to the deliverymen hereinbefore mentioned, delivered to said deliverymen the ranges ordered by said purchasers, whereupon said agents proceeded to deliver to said purchasers the ranges according to the terms and conditions specified in the promissory notes hereinbefore mentioned.

(10) That, for the purpose of making such deliveries, each said deliveryman was furnished with a wagon and team, which were and are the exclusive property of the plaintiff, and said deliverymen, for their services in making said deliveries of ranges, were and are paid a stipulated compensation and their necessary expenses by said plaintiff. Further than the said compensation, said deliverymen have no monetary or financial interest in the sale, proceeds of sales, or business of said plaintiff.

(11) That all ranges sold by the plaintiff or its agents in said county and state were sold and delivered to its customers in the original form or packages in which they were shipped into the state of North Carolina from plaintiff's factory in St. Louis, Missouri. All of said ranges were shipped in car-load lots, each car containing sixty separate and distinct ranges, and consigned to plaintiff at New Bern, in Craven county, North Carolina, in care of its said agent, S. H. Dew.

(12) That, upon the arrival of said ranges at said New Bern, they were unloaded by plaintiff's agents aforesaid and stored in the warehouse of the Atlantic & North Carolina Railroad Company, the common carrier by which they were delivered at said New Bern, and held subject to plaintiff's order.

(13) That no ranges were sold or offered for sale at said warehouse, but were taken therefrom only, as hereinbefore mentioned, for the purpose of filling orders obtained by the salesmen aforesaid.

(14) That all of said ranges used in the transaction of plaintiff's business in Pamlico county, North Carolina, were unloaded from the cars of the common carrier at said New Bern in the precise form or package in which they were placed in the cars of the common carrier at St. Louis, Missouri, and placed in said warehouse in the same form or packages, and were taken from said warehouse and loaded upon plaintiff's delivery wagons in the same form or packages in which they were shipped from St. Louis, and delivered to plaintiff's customers in Pamlico county in the identical and original form or packages in which they were shipped into the state of North Carolina.

(15) That the defendant, claiming the right to do so under section 36, c. 247, p. 333, North Carolina Public Laws of 1903, demanded from plaintiff a license tax of $100 for the business of peddling ranges in said county and state for one year, ending May 31, 1904, and levied on and seized the property of plaintiff for the purpose of satisfying said tax, and still has the property in his possession sufficient to satisfy said tax, and will sell and dispose of said property to satisfy said tax unless restrained by this court.

(16) That section 36, c. 247, p. 333, Public Laws of 1903, in so far as it applied to plaintiff, and the business transacted by it in Pamlico county, North Carolina, is in conflict with article 1, § 8, par. 3, of the Constitution of the United States, and therefore, as to the plaintiff and its said business, illegal and unconstitutional, absolutely null, void, and invalid.

(17) That all ranges sold by its traveling salesmen in said county and state were shipped into said city of New Bern, Craven county, and state, before any of said ranges had been sold, or orders for their sale had been solicited, by its salesmen aforesaid. Plaintiff has no place of business in Pamlico county, or elsewhere in the state of North Carolina, except as hereinbefore stated.

(18) That the said seizure of plaintiff's property is for the purpose of collecting a tax levied for an illegal and unconstitutional purpose, and said levy and seizure is illegal, void, and wrongful, and the defendant is threatening to sell plaintiff's property, and will sell it, to pay said illegal tax, unless restrained by this court, and the plaintiff will be irreparably injured and damaged by said illegal and wrongful acts of defendant.

(19) That a summons has been issued in this action."

Wherefore the plaintiff demands judgment that the defendant be restrained and enjoined from collecting said tax; that he be restrained from selling or disposing of the property now in his hands belonging to the plaintiff; that the defendant return to the plaintiff the property now in his hands; for costs and for general relief.

The following entries appear on the record: "(1) The parties waive a jury trial, and agree that the court may hear the case out of term, as of the fall term, 1903, of the superior court of Pamlico county, and render a final judgment herein. (2) The parties agree that the facts alleged in the complaint are true, and...