168 Ky. 641 | Ky. Ct. App. | 1916
OPINION of the Court by
— Reversing.
On the 30th day of April, 1896, the General Council of the city of Newport, which is a city of the second class, adopted an ordinance, which is entitled, “An ordinance requiring persons, corporations and companies
The license tax required by the ordinance for each person, corporation or company engaging in manufacturing or wholesale dealing in “soft drinks” was the sum of $150.00. A similar ordinance, so far as it has any application to wholesale dealers, was adopted by the General Council of the city on the 1st day of April, 1912, and which repealed the prior ordinance on .the subject. While the two ordinances above mentioned were in force, the appellees, W. T. Wagner & Sons, took out licenses during the years 1910, 1911, 1912 and 1913, for the privilege of engaging as wholesale dealers in the business of selling “soft drinks” by the wholesale and paid the license tax for each year, in all amounting to the sum of $600.00.
The appellees brought this suit in the Campbell circuit court against the appellant, City of Newport, alleg
Their goods were manufactured in Cincinnati; and were sold and delivered to the retail dealers in such goods in Newport; that the deliveries, except as hereinafter stated, were made upon contracts of sale therefor; that these contracts were made through orders received at their place in Cincinnati, from the persons in Newport, by means of the post office or telephone, or through orders received by the solicitors of appellees, or the drivers of their wagons, which ply between their place of business in Cincinnati and Newport; that at the time the orders were received and the contracts of sale made, the goods, except as hereinafter stated, were situated in the state of Ohio; that the greatest number of persons to whom the goods were delivered were regular customers of appellees and to whom their vehicles make visits three times each week for the purpose of soliciting orders by the drivers of the vehicles, and delivering to them goods which had been previously ordered; that most of those persons, who1 were regular customers, were retail dealers, and by a general arrangement made through standing orders given prior to or at the time of the beginning of the deliveries, the ap-pellees kept them supplied with the goods without any specific orders being given in advance of a visit by ap-pellees’ vehicles, and at the time of a visit by one of appellees’ wagons, in accordance with the general arrangement, did deliver to such customers so much of the goods as they might need, but the goods were of the same kind as those called for in the standing orders
The appellees alleged, further, that the provisions of the ordinance, in so far as it attempted to .apply to them and to their business in the city of Newport, was in contravention of article 1, section 8, paragraph 3, of the federal constitution, in that their business. was, at all times, interstate commerce, and that the provisions of the ordinance was a restraint to and regulation of interstate commerce.
The appellant interposed a general demurrer to the petition, wMch was overruled by the court, and judgment rendered in favor of appellees for the recovery of the s-ums sued for, and perpetually enjoined the- appellant from interfering with appellees or their agents because of their failure to procure a license and pay the tax, in
The appellant, by its demurrer, admitted as true the statement of facts, as set forth in the petition, and the question now presented for adjudication is, Is the ordinance, as applied to the business conducted by appellees, a regulation of and restraint upon interstate commerce so as to be in violation of the constitutional authority of the Congress of the United States, to regulate commerce among the states? When the exact meaning of the allegations of the petition are extracted, it seems to set forth the following as the facts, as constituting the exact manner of conducting appellees’ business. They are manufacturers of “soft drinks,” in Cincinnati, Ohio; they sell some goods in Newport, Kentucky, upon orders to them from retail dealers in Newport, which are received by them through the mail and telephone and by means of solicitors for them, and through the drivers of their wagons, acting as solicitors, in Newport; when a retail dealer has theretofore purchased goods from them, they place a load of their goods upon their wagons and send it into Newport, and it is there exposed for sale to such dealer, and if he desires to do so, he m'akes a purchase of such quantity as he desires, and the goods are then and there delivered to him; if any person, other than one having theretofore been a customer, desires to buy any of the goods while the wagons are in Newport, a sale is made to him and the goods then and there delivered; the goods are sold and delivered in the same bottles and vessels in which they were shipped, and packages containing a number of bottles are not broken before sale and delivery.
It has been held by the courts of the United States that a state has no authority to levy a tax upon the soliciting and taking of orders in one state, for the sale of goods which are in another state, and which are to be transported by a common carrier from the principal, for whom the contracts of sale were made, to the purchaser. Brennan v. Titusville, 153 U. S., 289, and many others. Contracts for the sale of g'oods made by a citizen of one state with a citizen of another state, through the medium of the mails or by telephone, and which are delivered by the seller to the purchaser in “original packages,” by means of vehicles, it seems would be protected from taxation by the authorities of the state to
For the reasons indicated the judgment is reversed and cause remanded for proceedings consistent with this opinion.