*1 ADJUDGED CASES
IN THE THE SUPEEMECOUETOE UNITEDSTATES, AT 1891. TERM, v. SHELBY COUNTY FICKLEN DISTRICT. TAXING ERROR 'TO SUPREME COURT OE STATE OE TENNESSEE. THE THE 97. Aрril
No. March Argued 21, 1892. 11, Decided agents b/okers, having í1. C. & commercial or Co. were an office in Tennessee, they Shelby County, where carried on that business. In 1887 they provisions took out their said licenses for under thé April 96, 9, 4,.1881,'(Sess. the statute of Tennessee-of laws c. § factors, imposing brokers, 113,) buyers a tax or sellers on commis otherwise, or, sion, capital if within the no be so invested, commissions, gross yearly compensa charges then During year took out licenses tion for said business. principals negotiated residing all the sales IT. made on behalf States, were, sales, sold at the times of in other and the s.o effected; shipped other to be to Tennessee as sales should be Dur . ing large part of C. & same time a of the commissions Co. were capital' They in their busi derived similar invested sales. had no expiration applied year they ness. At the of their renewal per sales, payment of license. As no had made no return of .They centage commission, application filed denied. year, past percentage bill to restrain the collection of tax for business, claiming any also to restrain current interference with their 'Held, that the tax a tax оn interstate commerce. (1) .That if the tax could be said to affect commerce (cid:127) g.s (cid:127) (cid:127) way incidentally, remotely. to amount to it did s'o and so commerce; regulation of such VOL. cxlv—1 n OCTOBER, TERM, 1891.
n Statement of the Case. complainants (2) not resort That could under the circumstances court, simply refused to ground that the authorities had on the stipulated payment tax. issue á new license without *2 District, 489, Shelby County Taxing examined and dis- Bobbins S. TJ. tinguished from this case. briefs, by having set aside This case been submitted on the submission was court, argument case reached and an oral When the was .ordered. appeared counsel, party again made submit an offer to neither was ' thereupon dismissed for on the briefs. The cdurt ordered the case want previous order; prosecution manner but subse- directed its motion, quently argument this dismissal was set aside on was heard. under the 20th This case was submitted January On 4th of was set rule. the submission February, docket, and the case. restored to the to stand aside, was On 6th November, 1891, oral was argument. assigned 24th of an When reached on the that month, for argument. made to on the briefs. The court submit offer was again the case dismissed for failure to orderеd prosecute thereupon it in the manner directed the court. on 21, 1891, W. Hallett December behalf
Mr. Phillips, the court to rescind the order moved dismissing plaintiffs, to,restore the on the and to set cause, docket, same it.down submitted and, motion, for oral argument, support statement: the following “ for oral The cause was set down at the term present argu- was, certain. not then ment at a Counsel day appearing, dismissed for ordered that the cause be 24, 1891, November in the manner directed. want of prosecution “ action that counsel court stated as the its The ground to with its order. in error had declined comply plaintiffs to “I am the counsel referred to requested and to order, disclaim any purpose .disregard extreme taken that the court should have regret express a different view. not
“. familiar with the of this court- Counsel, being practice matters, in such the order down the supposed setting cause for intended to an oral discussion invite argument and not'to direct one. While their error not be as justifica-
.“ may legal regarded v. SHELBY COUNTY.
FICKLEN Statement of the Case. .it sufficient to that their show action may
tion, trust as a an the court or inten- intended discourtesy of its disobedience authority. tional “ that the matter involved is of Plaintiffs error represent n situated. them and much . similarly others consequence ' “ constitutional question, The involves important case final receive the decision honors. your it is may hoped made counsel have fceen with argue Arrangements should accord in its if case, court, oppor- indulgence, tunity.” tp docket, restored and was cause was thereupon
The. was as court, : stated case, argued. duly follows Court of This filed Chancery Shelby was bill County, th^ & L. Ficklen, Cooper Company, against Tennessee,vby and Andrew J. Harris, County, the taxiúgiíiistrict Shelby Trustee. County *3 “ commercial The bill that alleged complainants agents the brokers- located within district taxing or merchandise rent a room for where their Shelby County, respective.'firms their at.times, and, the exhibiting keeping samples, purpose their their with respective and on correspondence. carrying in business ; use no their capital they principals; that. in and are neither merchandise, deal no or buyers
they handle in sales for their sellers; nor they only negotiating engage business that do the same .they respective principals; precisely drummers the difference do, commercial only being they are are while commercial transitory, stationary, drummers room at from and secure a and place temporary place . go. That in exhibit their- each each town or which to city samples. of their of merchandise respective solicits orders for sales them, when such orders are .and forwards principal the.same thereof filled the purchasers shipping goods-direct of Shelby.” county It com- was then averred that all of sales negotiated for non-resident firms, Ficklen .were who plainant exclusively and on in other .'Statesthan resided carried Tennessee, all so other than Ten- and the merchandise sold States TERM, of the Statement Case. and nessee, made, where sales were into Ten- shipped when orders were nessee, forwarded and filled.
That at least nine-tenths of the sales negotiated effected & and at least by complainants nine-tenths Cooper Company, their commissions,were derived merchandise of gross non-resident firms or and which merchandise was persons, into from other after Tennessee, the sales were shipped effected. -
That 9, section Acts of chapter Tennes- see, laws (Sess. made subsection Ill, 17 of pp. 113,) section 22 of the District Acts, District Taxing (Taxing Digest 50,) provides: or firm Every- or other cotton, person dealing any article whatever, whether as factor, or on broker, seller, buyer commission or otherwise, annum, dollars fifty ($50) per valorem, such or firm addition, every shall be taxed ad person ten cents on one dollars of (10 cts.) hundred amount of every or used such capital business; Provided, however, invested that if Such or firm on the cotton or- other busi- person carry ness connection or with other grocery invested in both shall be taxed but such capital only once; or firm must tax for both person pay occupa- tions; And if taxed provided, further, persons subsection have no invested, cent 2|- shall capital pay per’ commissions, gross yearly charges compensations said business, and at the. time of out their said taking shall bond license, to return said commis- give sions, to the trustee at the end of charges compensation at the end of the shall make return year, year they to said trustee to him the said accordingly, per 2-J *4 cent.” that, as were neither
Complainants dealers, they charged nor sellеrs, but sales for buyers only engaged negotiating were" not embraced-within the said buyers, they meaning had heretofore .section,.and further stated each they paid tax for tax, and the income 1887, privilege year except and had tendered the tax and costs of $50 privilege issuing refused, license for the to year trustee, who to accept v. SHELBY COUNTY.
FICKLEN Statement t>f the Case. would also the income tax
the same unless complainants pay for the year attached, it the bill and exhibits that com- From appeared each the sum of for the 1887, paid $50 plainants January, and executed bonds to the district, use of the agreeably taxing and received of the law in licenses behalf, requirements the limits of the district for the as merchandise brokers within as com- 1888, tendered, and that 1887, January, they year dollars and mercial trustee' brokers, twenty-five fifty and for the as their tax cents, each, charges year privilege refused because to he refused which 1888, accept pay cent their two and one-half 'for the upon gross year per their for the derived from commissions year said executed bonds January, report although they commissions. gross that the law viola-
Complainants in,question charged of the United сlause of Constitution tion of the commerce of,the and also and Tennessee, Constitution prayed States as follows : either restrain the defendants or That an issue to injunction them them from suit or proceeding against instituting any tax their them for the collection of said either of upon 2£% business or from from their said commissions respective gross their failure to warrant for their arrest for pay issuing any that, be also restrained defendants year same from in with them carrying any way interfering final business for the 1888; hearing they, said year from be restrained defendants, collecting perpetually tax their said of them cent them either said 2-J-per and from collect- commissions from their said 'relief, said $50, of, they pray ing and will ever etc. pray,” was over- demurrer,
To thiá bill'the defendants filed to stand defendants ruled chancellor, and, electing final entered, decree was it, injunction per- making tax, of Ficklen as to the entire including in behalf petual adjudging & and,, as ; Company, $50 Cooper the tax two of $50 the sum bound legally *5 6 TERM, 1891.
Statement of the Case. and one-half cent on their to commissions, the extent that per those sales of commissions owned upon resi- property were of and the dents Tennessee, injunction all perpetuating other respects. the
From decree defendants the to prayed appeal of the and' court Court that decided that the Supreme act of the not in violation of legislature question constitution, that and, further, the “inasmuch as bill from the that the at the appears complainants beginning the for and received, of 1887 year applied license respectively, on the business of brokers to commission without carry quali- fication, and the that held they, said complainants, license were throughout year complainants chargeable as tax, with fixed the act aforesaid, privilege without to the amount or character of the business carried regard on under said licenses of residence their places princi- and must have and complainants pals, reported paid 2£ cent on the commissions received them gross per during could before have become entitled to licenses year . . for the . That at the when year beginning 1888 the for license as complainants year applied, merchan- dise brokers and rightfully (1) required report cent their commissions received per pay during 2J the fixed and bond to $50 (2) charge give report commissions at the end -of the 1888. '. . year . is not, That the said act as to these' violative of complainants, article sec. first, Constitution the United States, commerce between the power regulate States conferred' United .Congress States; . . . for, complainants, having applied accepted held for and as during license year unqualified brokérs, commission for the same having applied unquali- fied license the year 1888, cannot validity act the said in conflict said béing with provisions Constitution of the United said complain- ants were not entitled the said the facts stated license the bill, whether the .business done and theretofore actually conducted them was or was from said not exonerated'
FICKLEN v. SHELBY COUNTY.
Argument for Plaintiffs Error. tax under the said of the Federal Con- provision
stitution.”
The of decree the chancellor was reversed, the accordingly demurrer and the bill sustained, a dismissed, writ whereupon of' error was out from taken this court.
Mr. W. Hallett for in error. Phillyps plaintiffs The is whether the in single question one State, negotiation of sales of in another samples, can be taxed goods State, in- whiсh the State the is carried on. Is negotiation not license or tax on such an unconstitutional occupation the restriction business or of into one' calling introducing State and wares that are in manufactured another thevgoods ? It seems to us that this was controversy in Rob adjudicated bins U. S. 490. In that Shelby case this County, court declared the k>fsales'of which are in negotiations goods one for the of them into the State purpose introducing in the made, which is is interstate negotiation commerce. It also that to tax the offer to sell such agreed before are the is into a tax on brought interstate com merce itself. The the of decision was that Very ground Federal Constitution of a state levy tax, prevents of a license for in requirement making negotiations the con duct of interstate It has business. been decided frequently by- in late court, that a tax which more-especially years, as a burden the introduction and sale of operates against other is a interstate products commerce, regulation-of of. States and taxa to do business a tax on is the business to be paid by oTjfof the' In the business. case the effect' and present оf the tax is to exact for to exer operation duty permission cise the' State of within Tennessee. It interstate is commerc0 of within contracts of privilege county making -to sell of other Shelby merchandise, product Tennessee, that the .States to residents merchants such n tax is It is for the faculty exacted. caq that the be'no license is there Now required: that a law out a license order to take requiring person confer him the o'' a busi- conducting faculty privilege OCTOBER, TERM, 1891.
Argument Error. for Plaintiffs law re- and when the that business; is a regulation ness,^ license in order to take out a acquire the plaintiffs quires that is a regu- conducting between States Here commerce. .business of interstate lation brokers, called means of merchandise is conducted' by agents such busi- of one State to not in the prohibit and it is power from the State which is taken agent unless a license ness, It transacted. is the business and where partially is located consti- it is that fact which taxed lusmess is the no- can of the tax. Its constitutionality tutes invalidity resided in the State that the on the-fact agent wise depend transacted there. or that the business was Tennessee, partially to exаction not interstate, business was subject If the tax must neces- of a validity form State. of the business taxed, the nature be determined by sarily whom the tax is residence of the agent upon *7 declared been so These have frequently form levied. principles axioms of constitutional make them juris- the court as to by rules to such that ah It is exception general argued prudence. n iscreated by is that It said facts of this .cáse. particular in error a was transacted general the business by plaintiffs as well to do a state, that were business, and empowered the fact that one and that business, interstate as an the other did and business, an interstate did entirely parties them from business, such a cannot reg- exempt almost entirely authorized since State, and taxation ulation to us It seems confined to the State. do also a business (cid:127) that law raises the that argument simply In business. discrimination as interstate made no against for a license doing a tax and words, other imposes exacts the fact of a But does the business merchandise broker. business local under a license demanded a law, strictly interstate confer transacted, any right well as business might tax the State of а license Tennessee to demand upon a tax business or it to levy upon empower is answer A such interstate business'? proceeds negative tax furnished tribunal. decisions of this .The is not changed,. of the exaction less objectionable, the.nature FICKLEN v. SHELBY COUNTY.
Argument in Error. Plaintiffs it does because not discriminate in favor of domestic busi- "(cid:127) - n ' ness.
If the fact Ficklen & have done Company business might internal to the State of purely Tennessee, affords excuse for the State of Tennessee a tax the interstate levying' them, transacted what becomes of the of this court reasoning in its decisions the taxation of regarding express companies, and of other institutions telegraph companies persons - in the transaction of interstate commerce ? engaged In each of these instances done the business or which have been might done was of a domestic nature, general inter partly partly but this court held state, that that fact afforded no justification for a State a tax interstate commerce levying transactions. instance the case of v.Co. Texas, 105 U. Telegraph S. Take-for á'tax on the business of There the telegraphing. legis lature had imposed oсcupation upon every telegraph business within the of one cent for company doing every sent one-half for less than message full'rate. every message company’did of its large portion confined to the and a Texas, messages being large por tion the boundaries of that State. The going beyond company was the Texas statute, number required report - all the and the sent, of the State was messages, comptroller to exact the tax The com required according reports. at first submitted to the tax, afterwards it refused to pany and action further, was the State to brought by compel to make The answer of the company payment. company it was while business within the State of transacting Texas its business constituted large interstate com portion-of therefore merce, free from state taxation. This con *8 tention was and as to stick business the tax upheld was de clared to be unconstitutional. The State was left free exact this tax as to all business of domestic character. purely
It been has the decisions of this court' supposed holding that a State had to tax within its situs, all-property power had commerсe, some although employed bearing so, but it is this controversy, perceived the vital distinction is in the the tax is on one case prop TERM, 1891.
Argupaent for Plaintiffs Error. in. State, while the tax case, within situated present erty n isfor the privilege the merchandise of other introducing It is the State. a tax on within account of the simply States of sales of non-resident merchandise, and a license negotiation interstate business. As has been privilege declared this a State cannot court, emphatically frequently make it transact interstate commerce, privilege but, in the Robbins it case, as said and as has been frequently before, declared .'when are once sent from one State to for sale or in another State of a become sale, consequence of its and amenable to its laws. The part property also been has made that this court in the case Robbins point that the State of held, Tennessee had a conceded to tax right but it drummers, Tennessee is to be observed that the v-ery in which this announcement is shows that made, paragraph the court intended this to denote drummers expression the domestic business of Tennessеe; for the court transacting said as a reason for this announcement, that the State might internal tax its own that did not give any to tax interstate commerce. Nor does it seem to us that right, the reference made counsel to the recent-decision opposing of this court in Maine v. Grand Trunk 142 U. S. Railway, 217, affords of the tax. There, argument present favor the tax was for the of a transact privilege foreign corporation within business the State Maine. This court declared ing that the tax in anwas excise tax for the privilege a railroad within the State. The railroad within operating was constructed under the franchise declared rested court, entirely discretion of the State; could be conferred such con dition's as the State in its deem most condu judgment might cive its interests. The -or its character the tax validity- did not the mode its amount depend upon adopted fixing or form, times of its Therefore, while payment. tax was to be ascertained to the reference receipts, this court was careful to. that this was for the say merely pur the value of the and thus. pose ascertaining done, obtain a the excise should amount guide *9 v. SHELBY
FICKLEN COUNTY. Argument for in Error. Plaintiffs nо that there was on the levied, levy receipts themselves If the amount in form or fact. ascertained either had been in the first the' court instance, imposed specifically observed, to its would have been no validity objection pretended. In be no the case there can but that .at'bar, the tax pretence is a the of the both in tax on form business, in' gross receipts and inasmuch as in the case of one of the effect that parties business, and in interstate, was the case another wholly almost within sd, falls entirely settled parties, case court, of this that a be laid on the tax adjudications cannot .derived interstate from business. Nor are the receipts rights of the error the fact plaintiffs anywise prejudiced by the'tax, had or that had for the they past paid they year return, bill, a bond to the amount given previous filing for that- their business proceeds object year. filed in the bill enable these to transact 1888, parties their interstate business for future free from state interfer whether of taxation or thus license, ence, by way protect And constitutional their rights, specific-prayer that the defendant should be from restrained war only issuing for their rants their arrest for failure to the tax on the commissions for fromor suit them on against instituting -behalf, also prayed against injunction interference in interstate business for the their carrying all future time. Some intimation has been' year made should that the have opposing argument parties contented themselves with their interstate and. business, doing should not have held out as themselves merchandise brokers. But not have their could transacted business without out under the or- law, either taking license the criminal laws of the State. The themselves-to subjecting act itself. to be a declared such business taxable- taxing every and thé without first exercise such privilege, the We was declared to be a misdemeanor. submit paying that the- were not error plaintiffs compelled adopt .in alternative of .the from the law refraining violating business. Thé had fact past paid license.fee for had a bond given transacting TERM, 1891.
Argument Plaintiffs in Error. uncon-' for the cannot them showing'the year estop what cannot "We stitutionality perceive legislation. *10 the to demand this can have right possible-eifect interference, the future of the judiciary prevent interposition We cannot see- the their: constitutional rights. State with the Court decision of court can the Supreme how the uphold the of without Tennessee, underlying principle overruling no distinction between case. We can the Bobbins perceive in the Bobbins in and this the fact case. that case except in but Tennessee, transitory sale was the party negotiating business that the was The fact case present permanent. does not sub of Tennessee on within State carried .partly if in it is interstate burden, business, it state its nature to' ject com-' of the because regulate government ]3ower it: of State does the borders a merce at permeates not.stop court that a tax of this is was the true, opinion Formerly, discrimi on and without carried on.business nation between within.the States, and citizens other be its citizens might the basis This constitutionally imposed. principle 479, but Mobile, in the case of Osborne v. decision 16 Wall no has overruled, decision been directly principle Mobile, v. this court. Leloup constitutes doctrine*of longér enumeration in his 645. It true, Bradley U. S. is 610, Judge 127 taxation, in case, specifies the Bobbins subjects the. within avocations pursued taxation upon employments com connected with State not directly foreign interstate that, same decis here the business merce. Bat declared must be free. -therefore, interstate commerce, constitutes ion, U. 230, S. this court declared Fargo v. Michigan, As 121 that, can had often been made State proposition its limits within tax on business-transacted regulate' way as a defence has made and that such proposition been (cid:127) with an interference taxation was allegation when' had said But the court interstate commerce. always th& commerce among the business commerce itself be eVaded. could not the constitutional thereby provision a tax on case, tax is true, It in-form the.present is. the tax-really must be what does but'the broker, inquiry» COUNTY, v. SHELBY. FICKLEN Argument for- Plaintiffs Error. law answers this ? The Tennessee
fall tax is inquiry; one on the business done. a state constitutionality tax can the form or determined agency which it is through burden collected,-but subject upon laid. the. 15 Wall. Case, Tax 232. The State decision of Freight court Co. v. Philadelphia Steamship Pennsylvania, U. that a tax S. shows derived from gross receipts likewise, commerce is and so void, on the' dórived from business done this State” receipts is- void when levied On a as fаr concerns .-as telegraph company into,,the carried either State from or from messages without, within another the State to State. Un. West. Co. Telegraph v. S. Alabama, U. The case of McCall 136 U. S. is in 104, 110, direct line with the California, preceding decisions. the tax was for There the privilege maintaining within the of California, agency soliciting *11 for railroads, and the business done actually agent taxed, was that of business for an interstate soliciting railroad. The tax was declared as a a void, means or occu being of on interstate business. and pation carrying pure simple. Without a furthér discussionof we to those of cases, Norfolk refer Ra ilroad 136U. it Pennsylvania, 114, S. where was &c. could, held that a not a exact license for the of privilege a railroad office within the when the State, business keeping done the railroad interstate commerce. was largely done a The tax -was one means -or of such instrumentality commerce. Also to Crutcher v. 141 U. where Kentucky, S. it was that a license could held, not be of of required agents before were authorized on express companies carry business within the' State, and this for the reason embraced interstate business as well as business within wholly -the State, and therefore not -the within of the State. power conclusion,
In we content ourselves with a refer particular ence to v. Mobile, where it was Leloup determined that supra, (cid:127) of the State Alabama could not company compel telegraph a license fee for the transaction of business within the State, although did a business.' telegraph company determination court was that the tax affected TERM,
Argument for Error. Defendant as well as'internal, entire business of the interstate company, ' reason was' void. for error. Mr: filed brief Henry plaintiffs Graft n Mr.8. P. in error. for defendant Walker ' n of & bill that all the Ficklen It principals appears by that' nine-tenths of the of other States; Co. are residents of other & is doné for Co. States. Cooper principals it' that' held the chancellor facts was Upon fixed & were not either Ficklen Co. liable, charge.of for.the & on and that Co. commission; $50, Cooper per cent and for one-tenth of fixed $50 charge liable on the This based cent commissions. ruling, per 2£ doctrine of interstate non-interference with Court of plaintiffs reversed Supreme as tax, liable' for the whole fixed by error adjudged statute. Wheat. case Brown v. court from the Maryland,
.This recent cases of Robbins v. County Shelby very District, Mobile, 120 U. v. Port 489; Leloup Taxing S. 141 U. has S. 127 U. S. Crutcher v. 640; Kentucky, in this case, so considered the .frequently question involved an extended review or that it is our purpose attempt as therefore, discussion We shall authorities. only, that the tax in undertake question show possible, briefly is not a commerce. regulation hpld the "state
I. The tax in (as' court) commissions -the amount of tax, graduated by. *12 n received. taxable, were not contend, as If, they complainants need, taken out the then not have did not cmd should they n what it must they license. taken pay -out' Having they effect to it. agreed pay It from bold are, the bill that appears' complainants (cid:127) brokers. For 1887
themselves out ás, merchandise general took for the out 1888 license as such. For applied same of character license. fact
The that their are of non-residents .the principals
FICKLEN v. COUNTY. SHELBY
Argument for Defendant in Error. is a fact which, true on the the bill was though filed', day true be might the next are If, therefore, day. plaintiffs in their the true contention, method of right procedure by them would have been to have contented simply themselves with non-resident private agencies instead givеn principals, the róle of commission merchants.” assuming
The case is not within the of the in Rob principles opinion bins v. 120 U. Shelby S. 489. Bobbins was the County, (a) of one non-resident and the case representative firm, treated as if his had come into State to make principals sales, and the State had undertaken to seize and tax them. The tax was held to be in effect not tax on (b) Bobbins, but on his Here the reverse is true. principals. clearly it is
So, too, Cook distinguishable Pennsylvania, U. S. 566. In case, State of exacted Pennsylvania a certain of the at sold percentage proceeds goods foreign for the auction, of thus and the tax them; selling to was held be a and unconstitutional, under duty imports, case of Brown v. principles leading Maryland, Wheat. 419. In this case the State of Tennessee requires every the vocation broker, of merchandise person pursuing shall a vocation tax two and one-half cent of the per commissions earned. Can tax on"the fact disputed, that the sold at another were, sale, the time — as that, between the and seller principals buyer —the transaction one of Is interstate commerce? State’s exaction so connected with the commerce directly it make a burden aor of interstate com upon regulation merce? We submit that it is not tax the commerce a. between the be"—a is what it purports the1broker real himself, amount graduated by ized in that in him from the and that, transaction, except direct and court has never allowed remote way, has no. taxation, tendency affect validity itself. commerce burden prevent - or not power whether ultimate. being citizens, of its-resident State to tax on vocation one lay him from realized graduated profits according *13 TERM, 1891. 16 Defendant in Error. Argument for be denied on the vocation, can that.the ground of that pursuit in sales be- is negotiating wholly partially, citizen engaged, situated non-resident merchants goods tween residént of this examine such the decisions will another we in with- bear most question, as seem to pertinently court citation or an exhaustive analysis in least out ‘the attempting clause interstate commerce under the cases of all the arising -the Constitution. oí to tax that the has ruled
This court has often power limits; within its and that all a situs property property having on that with is hot account in bommeree employed be not, however, must to tax. There drawn fronl the power used, such because is so property against any discrimination other from States'or countries nor brought against property v. Ferry Pennsylvania, because of that fact. Gloucester Co. Car Co. v. Pennsylvania, Palace 114 U. S. Pullman's 196, 206; Railroad, v. & Ohio 18; U. . Baltimore S Marye 127 Parham, v. Wall. U. S. 117; Woodruff said : n In the latter base court Chicago merchant at wholesale his in York sells who New buys goods in trade his millions have employed may original packages, taxes; half a lifetime and all state, county city escape claims in which he that he is worth is invested all nor Neither the State New York. from imports protected him can make his life and property city protects its its contribute dollar government, improve support in a children. The merchant its educate thoroughfares he if who deals pur town Massachusetts only wholesale^ from If his is taxation. York, his chase exempt goods New. the taxes which he must all Boston purchase neighbor all’ on the property Massachusetts justice with-equal levies illustrations. But are mentioned as its citizens. These cases into an from one State that if articles is obvious brought circum under the limited even taxation, other are exepnpt injustice stances laid down v. Maryland, grossest Brown in all our large burdens múst prevail, public equality n , . cities impossible.” latér uttbr with this case is Conceding harmony FICKLEN SHELBY COUNTY.
Argument for Defendant in Errorl *14 anees of the court the exact decided, upon point language such cases, above so far as fully concerns quoted supported that the full States have of tax general proposition power ation over all within their limits, to the property subject only shown. The commerce are qualifications already subjects of not from state taxation, be not taxed exempt provided- —such in taxed such manner as that the burden is unequal because of úse to which are put.
II. to tax Advancing of question power prop to that of first erty vocations, business, we taxing franchises, notice the case of Co. v. East Wiggins Louis, St. Ferry S. In 365, U. that an case an imposed municipality nual license fee on the whose boats $100 ferry company, plied between East St. Louis and St. The Louis. was char company tered and State of Illinois domiciled East St. Louis, the case in that from .the case of respect' differing Glouсester v. S. 196. The Ferry Co. U. court said: Pennsylvania, “ The exaction of a license fee is an exercise of the ordinary "When, police therefore, a power bj7 municipal corporations. case, as in an this expressly grants city, incorporated tax and the latter power license, may regulate ferrips, a license impose ferries, although keepers boats between in two different ply landings lying the act which this exaction is authorized will not be held to be a of commerce.” regulation
The cases of Asher v. Texas, 128 U. S. Stoutenberg v. 129 U. Hennick, S. all essential identical, par- with that ticulars, Robbins v. Shelby County.
In the case of McCall v.
VOL. cxlv—2 TERM, 1891. OCTOBER. in Error. for Defendant
Argument transactions among commercial it affected far as so cmd remote as incidental mdir'ect, sowas Us States effect and that was not there- commerce, such or to burden impede of the United States Constitution with'the conflict fore tax on the railroad California law of Congress.” “ increase, instituted [that] agency agency, traffic,” was increase, its passenger did doubtless according principles invalid, for the reason held taxa court the decisions of [it was] established by on interstate carrying means an occupation and simple.”. pure tax and its State’s Of the power The doctrine
Perhaps in Philadelphia Steamship found best stated limits are proper *15 326, 341, 342. court S. 122 U. v. Pennsylvania, Co. This “ the is laid in-the case The tax upon said: present there are fol Those as such.- receipts for transportation receipts dollar for to be accounted company, and caused by lowed thereof, or-the amount It is those receipts, for-dollar. specific which the is called company is the same thing,) (which not because .taxed, are only the tax. They upon were received its because value,- оr are money, b.ut doubt, other citi a like any No ship-owner, transportation-. his for the amount of be taxed property zen,-may personally - it was to the source from which without or estate, regard other or or commerce, whether derived, from. banking, is an different from But that entirely thing employment. in a tax his upon receipts particular employ laying special 'is laid, If a tax taxed are those ment. such receipts in -the way derived passengers transporting" goods when, no matter is of interstate or foreign .tax at the time of or exacted; whether at realizing receipts, it. six an exaction the end of months- 'aimed is .-every year,, a burden it and is itself, seriously at the commerce upon that, A us itl review the convinces first-. affects question Gross on which the decision State Tax on Railway ground is not is tenable; by was Receipts placed supported the con on but, Brown v. anything Maryland; decidedt it. in that that the case is decidedly against trary, reasoning FICKLEN SHELBY COUNTY.
Opinion of the Court. second the decision referred to on which ground was that the based tax the franchise of was corpora- to it do not think that this tion We the State. granted It can be affirmed in' case. could not certainly present been on- have intended as a tal be- franchise, corporate on cause the terms of the act the cor- equally laid of other States If Pennsylvania. porations doing intended as a on tax the franchise of which in this case is -the business of on inter- transportation carrying state or it would foreign commerce, clearly unconstitutional. . . . Interstate commerce, when carried on by corporations, is entitled the same state exactions which protection against is to such commerce when on carried given individuals.”
In accord with the laid down, distinctions here court, of Maine v. Trunk Grand U. S. Railway, .case valid', sustained a statute of the State of JVIaine tax being franchise—the law a tax corporate on the imposing franchise to the amount of the in the' according gross receipts such amount to be ascertained the total by dividing the total number of miles gross receipts by operated, that amount number miles multiplying operated the State.
Tested these is the decisions, here It void ? is not taxa on a non-resident merchant, through It resident broker. not a tax the. or on the goods, It sold. is an proceeds.of occupation a¡ exacted of a resident citizen tax, the vocation of pursuing *16 merchandise broker, general, amount the graduated value the business itor transacted; bemay considered in the of an income tax-on the resident citizen. light simply The is not the or accredited plaintiff specially representative agent one non-resident merchant or any manufacturer. He ahas office,holds himself out as a regular in his broker, general and, line of business, is to serve all comers. ready
Me. Chief J ustice after stating case, delivered Puller, of the court. opinion In 489; Robbins v. Shelby County 120 U. S. Taxing District, TERM, 1891.
Opinion of the Court. 16 of c. 96 of the laws of Tennessee of it was held that section not “All drummers and all .'that: persons enacting Dis- licensed house of business the Taxing having regular ’ ‘ for or sale, trict of selling goods, Shelby County offering to therein shall be or merchandise wares, required sample, or trustee the sum of week, $10 per county per $25 it so far as to solic- month for such applied persons privilege,” on behalf of individuals or firms sale of goods iting of commerce another regulation business of the Constitu- the States and violated prоvision among to States which of the United power tion grants Congress involved was stated make to such regulations. delivered the of the court, Mr. Justice who Bradley, opinion “ a tax or it for a State Whether levy to be: competent or inhabitants other restriction the citizens any impose or sell other States, seeking selling are introduced therein,” before (p. 494;) said State time it was con- not. At the same decided that it was the States that commerce legitimately ceded among might other when laws, affected they, among incidentally of taxes upon persons imposition things, provided to its within State population, belonging residing therein, avocations and directly pursued employments with some or interstate connected with foreign under or business exercised authority other employment it was And laws of the United States.” Constitution if invalid as tax, “To against say further stated: discrimination as a other operates drummers con- it is whom Tennessee, drummers of against against n is' not is no because be valid, argument, ceded and if it whilst does so drummers; having tax its own bound free it acts of its own of other States, to tax those no power itself, As before author of such discrimination. and is will, but that commerce; own internal its the State said, may commerce,” to tax interstate (p. 499). does not right give did were established at bar the the case complainants In brokers, District as merchandise Taxing ninety- as such under section nine taxed chapter and were *17 COUNTY. 21 FICKLE# SHELBY- Opinion of the Court.
six of the Tennessee embraced different laws of matter from section sixteen of that For subject chapter. to tax bond year paid $50 charged, gave report their commissions at the end and year, thereupon and' received, the entire and held, throughout year general ' unrestricted to license do .businessas such brokers. They authorized to do all kinds commission'busi- thereby any ness becaine in liable to question, which was fixed and in part part graduated'according the amount of in the or if no invested capital capital n invested, -were the amount of commissions received. Al- (cid:127) their 1887,'as to though the one principals happened during to be and as to party, wholly non-resident, other, largely this fact such, have been then otherwise might afterwards, as their business not confined to transactions for non- residents.
In the case of the tax Bobbins was held, effect, not to be a tax on Bobbins, on his while-here the tax was principals; levied- clearly of the com- upon complainants respect general mission business they conducted, and their property engaged ' therein, realized profits therefrom.
No doubt can be entertained of the of a state right legis- lature to tax trades, professions absence occupations, of inhibition in the state that constitution in and where regard-;, a resident citizen engages subject par- ticular tax the-fact that the business done chances consist, for the time sales be- being, wholly negotiating partially resident and tween non-resident merchants, goods situated in another State, does not involve the necessarily taxation interstate commerce, forbidden Constitution. of the court in v. State language Lyng Michigan,
U. S. was: held that no “We have repeatedly has the form, a tax right on interstate commerce lay whether laid on the duties way transportation derived from or on commerce, subjects oij receipts or business of or on the transportation, carry occupation a burden on, the reason such taxation ing on-that- of which' it, and amounts to a regulation belongs TERM, 1891.
Opinion of the Conrt. here the tax was not laid on the to But solely Congress.” on interstate or commerce, or of carrying occupation commission condition of exacted as a doing any particular themselves business; voluntarily subjected complainants business. thereto in order to do a general S. U. was held that: In McCall v. 136 California, “ line of railroad between and New An of a Chicago agency of San Francisco for the established York, purpose inducing from San Francisco to New York to take passengers going at but not tickets the that line selling Chicago, engaged out of an or on account it, or route, money receiving paying in interstate and a license tax im commerce; agency engaged business in San for the privilege agent posed and is uncon a tax interstate commerce, Francisco is because the business This was stitutional.” agency the amount with the to assist carried on increasing purpose therefore a traffic over the road, part passenger interstate commerce. and hence of road, the commerce of Co. v. Pennsylvania, In and Southern Steamship Philadelphia fоr the court, Justice 122 S. 326, 345, Bradley, speaking U. Mr. the business, franchises, said: corporate property, created State may undoubtedly the income corporations care should but in such taxes State; be taxed imposing or in taken not interfere with directly hamper, other matter interstate or direction, foreign of the Federal within government.” exclusively jurisdiction the business true of the And this of course is property, equally of a State. It is well and the income-of' individual citizens tax all that a State has settled property having power com Jn interstate within its whether limits, situs employed not. it is so merce or It is not taxed because employed, of the State. because is within the territory, jurisdiction 18; 141 S. Pullman's Palace Car Co. v. Pennsylvania, U. S. 196. Gloucester v. 114 U. Co. Ferry Pennsylvania, And it has corpo often been laid down property rations from the franchises holding government of its United States is not States from taxation by exempt ; situs. 5 Thomson Railroad 18 Wall. v. Peniston, Company SHELBY COUNTY. FICKLEN Opinion of tlie Court. ; Wall. Western Union Tel. 579 Co. v. Railroad,
v. Pacific 125 U. S. Massachusetts, East St. Louis, Co. v. U. S. 365, So Ferry Wiggins license fee was annual imposed an 374, where ferry Louis, of East St. the city company having company by of Illinois the State domiciled been chartered being and^ boats between its St. Louis, place East St. plying “ The exaction of a the court said: license Missouri, Louis, fee exercise cor is an ordinary polibe power municipal - State When, therefore, expressly grants porations: ‘ thp in this tax and case, license, power city, incorporated a license .tax on the latter ferries,’ may impose regulate *19 their boats between of ferries, ply although landings keepers the act which exac different States, by this two and lying a of com will not be held to be is authorized tion regulation merce.” 142 U. in Maine v. Grand Trunk S. Railway Co.,
Again, cor that a state statute which we decided required every a railroad association within operating poration, person its tax for the an annual exercising pay the amount to be determined its therein, franchise further that when ap provided transportation receipts, a to a railroad within without partly plied lying partly a oí extend or to one as a line State, part system operated be the tax should equal proportion ing beyond in the man to be in the State, of the ascertained gross rеceipts did with Consti not conflict ner the statute, provided that the reference It was held tution of the'United States. certain and to a per the statute to the transportation receipts of the excise the amount of the same, determining centage of the business done by tax, was to ascertain value simply con to a reasonable and thus obtain a the corporation, guide should tax which as to the amount of the excise clusion in Phil Ih unlike that levied the tax was levied. respect where supra, v. Pennsylvania, adelphia Steamship Company taxed as were specific gross receipts transportation value, or its are taxed not because such, money, they only because received transportation.” they TEEM, OCTOBEE Opinion: Harlan, Dissenting J. railroad
Since in interstate company engaged commerce is an excise-tak to tbe value of pay the busi- according liable^ ness done ascertained State,» above stated, is diffi- as cult to see a citizen why business at the general . place his domicil should of his share of the escape burdens payment because the amount of municipal government his tax is at arrived reference to his This tax is not on the profits.' or on the of the nor is it a tax on non- goods, proceeds goods, resident and if it merchants; can be said to affect interstate commerce it is so way incidentally, remotely not to amount of such commerce. regulation We it would not be doubted if the presume that, complain- ants had been taxed on invested in the business, such capital taxation would not have obnoxious to constitutional been but because had no objection; the tax invested,- capital was ascertained reference to the amount of their commis- which when sions, received were no less their than property would have been. We capital with the agree Supreme of; the State Court 'that out taken complainants having under licenses to do a the-law commission bond to having their commissions given report year,.and during thereon, required percentage could when not, for similar licenses for the ensu- applied resort to the courts because the year, authorities ing municipal to issue such refused licenses without the payment stip- *20 tax. What ulated would have if position they occupied had not undertaken to do a commission had out no taken licenses but had therefor, transacted simply for .non-resident business is an different principals, entirely' which does not arise this record. question, Court is judgment Supreme
Affirmed. Mr. Harlan Justice dissenting.
It seems to me that case opinion judgment : I are not with numerous decisions of this court. harmony assume that the court overrule do not intends °to any or modify those because no is And cases, of such purpose expressed. n 25- v. SHELBY COUNTY.
FICKLEN Harlan, Opinion: Bissenting J. decision will be cited as hav- feel I sure
yet present that effect. ing '(cid:127) District, In Robbins U. S. Taxing Shelby County that Tennessee could not it held 489, 496, 497, was require, for from a-drummer’s license even its own soliciting, people, the sale of there on behalf of’individuals firms goods business in another This the court will rule, said, State. or the of a of a for tax, license, only requirement prevent levy for the conduct of interstate commerce, making negotiations and it the State well be asked where may gets authority n burdens on that branch more than any imposing a tax on the business of from imposing importing foreign that of or even on United States countries, postmaster marshal. The mere business of a a drummer calling priv makе it it cannot so. Can state make legislature ilege Tennessee on ithe business to carry privilege importing goods from If has it better not, countries? any right foreign on interstate make commerce? carry It seems to be of this argument, people forgotten, as of are citizens of the United as well the in States, country dividual and that have some under -the rights Constitution and of the latter, laws the.for'mer independent and free from interference or restraint from them.” Again: “It is as if it were material strongly urged, point that no made between domestic and case, discrimination is — and those of drummers those of Tennessee other foreign that all are taxed alike. But that does not meet States; Interstate commerce cannot be taxed at all, difficulty. laid even the same amount of tax should be on domes though tic or that is within solely carried.on State. This was decided in the case of The State Freight Tax, Wall. 232. The of sales which are in negotiation for the them into another introducing purpose is interstate made, Sta+° which the com negotiation A be taxed merce. New Orleans merchant cannot there for York, because, or New ordering goods London one and, other, is an inter case, act. foreign, commerce, both of which are state, subject regulation by nn alone.” Congress *21 TERM, 1891.
26 Opinion: Harlan, Dissenting J. v. & Southern Co. Pennsyl Steamship Philadelphia
.In 122 a in 326, tax, U. S. vania, Pennsylvania, upon imposed under of a steamship company, incorporated gross receipts from- such derived State, the laws of that gross receipts being and between sea, of persons property transportation held to and from was countries, and different foreign and, and commerce, of interstate to be a foreign regulation unconstitutional. therefore, an ordi U. S. Mobile, 648, v. 127 640, In Port Leloup of com license a of port
nance requiring telegraph its to be invalid a held to in. company application panies was there in Mobile, being place engaged having to from and transmitting the occupation messages and from This to other States. in Alabama points points Wall. said that Mobile, Osborne v. 16 court, overruling to a tax on interstate commerce has the lay right no duties laid on the whether way form, transportation derived commerce, of that on the of the subjects receipts or on the or business from that occupation transportation, taxаtion is a burden the reason is such on, carrying ato. of which it, and amounts on that regulation solely Congress.” belongs law v. U. S. Texas,
In exacting Asher a state State, within the solicit or tax to enable license person, there for a in another make sales person residing ders of the held to be commerce clause was repugnant Constitution. v. U. S. Hennick, 141, 147,
In Stoutenburgh ques act as tion whether passed, legislative was Columbia, the District of commercial sembly requiring, to take merchandise sample engaged offering agents out for a invalid when license, applied persons indi behalf the- District the sale of soliciting Re viduals firms business outside of .District. it was clause act ferring particular “ This to sustain the this court said: case, provision attempted municipal as a of a manifestly regarded, regulation purely as-is noseitnr character, obvious, perfectly principle FICELEN COUNTY. SHELBY *22 Opinion: Harlan,
Dissenting J a if socids, the clause be taken as it should in be, connection with the other clauses and of that act. But it is indis parts from that held void in Robbins v. tinguishable Shelby County and Asher 128 District, S. Taxing Texas, a being U. of interstate so far as regulation applicable persons as Hen nick the sale of was, on behаlf soliciting, of in goods dividuals or business outside of the District.” firms'doing In. McCall v. U. S. was held California, a license tax an enacted the board imposed by ordinance by of San Francisco supervisors city county upon at that in the' agent business of travel engaged city soliciting for a line of between railroad New York was Chicago invalid under the 'commerce clause of the Constitution. In &c. Railroad Co.v. 136 U. Pennsylvania, S. 114, Norfolk
a tax a imposed railroad by Pennsylvania incor upon company in another porated whose line extended Phila from into other for the delphia States, an office keeping to be used its Pennsylvania, officers, stockholders, agents "and was a tax commerce employés, upon States, among and therefore void.
In Crutcher v. 141 U. S. the court Kentucky, adjudged to be void an act of the so far as it legislature Kentucky, forbade from foreign express companies carrying between in that State and in other points points States, with out first a license from the State..' obtaining announced in these if principles cases, fairly applied case, present to.have led to a ought, my con- judgment, clusion different from that reached the cdurt. took Fickldn out a liсense as merchandise broker and bond to make a gave return of the commissions earned him. His gross commis- sions in 1887 were derived interstate wholly business, that is,,from mere orders taken in Tennessee for in other to be into that State when the orders shipped forwarded and filled. He was denied a license 1888 unless he first two and a half cent paid on his commissions. per gross And the court holds that' it was consistent with the.Consti- tution of the States for the local authorities of the .United District of Taxing to make it a Shelby condition County TERM, 1891. Opinion: Harlan,
Dissenting J. ,1888 license for that he of Ficklen’s precedent right, cent of the commissions should per required ' him in in interstate This is earned business. very clever to enable the District of Shelby device County Taxing com- taxation to sustain its upon government If had, terms, merce. the ordinance express made the as merchandise broker license depend granting cent of a payment by. per applicant given interstate, his earnings year previous I would not have hesitated court, apprehend, pronounce unconstitutional. But it seems that if the local authorities are discreet to indicate in the ordinances under enough *23 business, which act their to tax interstate purpose evade a designed may successfully provision constitutional to relieve commerce from direct local bur- States among bond dens. The which Ficklen should not, my opin- gave earned in be coñstrued as his commissions ion, embracing which no tax can be constitutionally imposed by upon a State. under while,
The result of the decision is that Rob present District, bins v. a license not Shelby County Taxing may be Tennessee there drummers imposed soliciting the sale of to be from States; while, other under goods brought local v. license tax cannot be Mobile, Leloup imposed between in different States; respect telegrams points while, under commercial can Hennick, Stoutenburgh agents not in the be taxed District of Columbia for there soliciting the sale of into the District from one of brought District of States,—the Taxing Shelby County may require, as a condition of broker, a license as merchandise granting shall a license fee and, addition, applicant 2J cent commissions received, per only transacted him that is in that wholly domestic,-but interstate. wholly For these reasons I am constrained to dissent opin- ion and of the court in this judgment ease.