4 Wyo. 494 | Wyo. | 1894
■' The plaintiff in error was arrested and tried before a police justice of the Town of Casper for the violation of an ordinance of said town concerning peddlers. He was convicted and appealed to the district court of the county, wherein-he -was tried by the court and convicted. He brings error here attacking the town ordinance as-unconstitutional and void'as
“An ORDINANCE CONCERNING PEDDLERS.
“Be it ordained by the Town Council of the Town of Cas-“per:
“Sec. 1. It shall not be lawful for any person or persons “to. hawk or peddle any goods, wares, merchandise or any “other valuable article: or things -within the corporate limits “of the Town of Casper without first having, obtained a license “so to do as hereinafter provided.
“Sec. 2. No person, persons, company or corporation, being “non-resident shall in person or by employe, traveling or “local agenta.drummer-or salesman, sell by samples or otherwise in this town any goods, wares or merchandise, either “foreign, or domestic, without first obtaining a license as hereinafter provided.
“See. 3. Every person selling goods, wares or merchandise by samples or otherwise to be delivered in the future “through a storekeeper or merchant of this town is a peddler.
“Sec. 4. .This ordinance shall not apply to traveling agents “and drummers who sell exclusively by sample or otherwise, “to regular merchants doing business in the town, nor to “persons selling fruits, vegetables and farm products.
“Sec. 5.' Every person wishing to obtain a license as a “peddler shall apply to the town clerk or town marshal, stating “in what manner, in what articles and for what time he wishes “thus- t.o trade. And upon his paying license fee of $25.00 in “advance for each .24 hours he shall be permitted do trade as a “peddler. No license shall be issued for less than 24 hours.”
An attempt is clearly made by the ordinance to distinguish between commercial travelers selling exclusively by sample or otherwise to merchants doing business in the town, and to agents selling generally to the inhabitants of the town by sample, without regard to their vocation.
The evidence offered discloses that the plaintiff in error was a traveling agent of Wilder Brothers, located at Lawrence, Kansas, and that he sold by samples, shirts, muslins, woolens, silks, hosiery and other articles, to be forwarded by his commercial house to the parties purchasing.
The goods sold at Casper were forwarded by express to the purchasers, and were not delivered “in the future through a storekeeper or merchant” of the town. The case falls within the principles announced by the Supreme Court of the United States in the case of Robbins v. Shelby Taxing District, 120 U. S., 489, and Leloup v. Port of Mobile, 127 Id., 640, but the facts of the case as presented by the evidence are more akin to those in the ease of Asher v. Texas, 128 U. S., 129, where the plaintiff in error was a resident of the State of Louisiana, and was engaged in the business of soliciting trade by the use of samples for the house for which he worked as drummer, which was located in the City of Mew Orleans in said state. His territory of operations was in the City of Houston, in Harris County, Texas, and his business was soliciting orders or trade for his employers, who were manufacturers of rubber stamps and stencils. While so engaged, he was arrested and fined for the alleged offense of pursuing the occupation of drummer without a license, contrary to a provision of the Penal Code of the State of Texas. Upon habeas corpus proceedings before the Court of Appeals of that state, the conviction was sustained and the petitioner remanded to the custody of the sheriff, and to review such judgment of the state court, writ of error was brought in the Federal Supreme Court. It was held by that tribunal that there was no dis
The distinction made by the ordinance of the Town of Cas-per, under consideration, between agents and drummers selling exclusively by sample or otherwise to regular merchants of the town and those selling to the public generalfy, can not alter the situation. The Constitution of the United States having given to Congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system, or plan of regulation, and when Congress has failed to make express regulations of the commerce among the states, this indicates its will that the subject shall be left free from any restrictions or impositions, and any regulation of the subject by the state is repugnant to such freedom, except in matters of focal concern only, where the state by virtue of its police power and its jurisdiction of persons and property within its limits, provides for the security of the lives, limbs, health and comfort of persons and the protection of property, or when the state does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries and other commercial, facilities; or by the passage of inspection laws to secure the due quality and measure of products and commodities; or by the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the community; or imposes taxes upon persons residing within the state or belonging to its population, and upon avocations and employments pursued therein, not directly connected with foreign or interstate commerce or with some business or employment exercised under authority of federal constitutional or statutory law; or imposes taxes upon all property within the state, mingled with and forming the great mass of property therein. But the state, in making such necessary police and revenue regulations which are permissible can
“In the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulations, and not to a multitude of systems. The doctrine of the freedom of that commerce, except as regulated by congress, is so firmly established that it is unnecessary to enlarge further upon the subject. * * •* It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers —those of Tennessee and those of other states; that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state.” Robins v. Shelby County Taxing District, supra; City of Fort Scott v. Pelton, 39 Kan., 764.
It makes no difference whether the articles imported into a state to be sold are farm products or manufactured articles, or any kind of merchandise. The power of the state and its municipalities is exhausted as to her own resident dealers’ and agents, and to the property within its jurisdiction, unless, the morals or health of the people are in danger from the foreign commerce introduced within her borders, or unless