*1 power section, long established administrative practice holding embezzled funds to taxable income of the embezzler, finally because of the dis- arbitrary tinctions favor of the embezzler which arise from an opposite interpretation Code, I believe that em- bezzled gains funds are taxable by Congress. as defined
NIPPERT v. CITY OF RICHMOND. Argued 72. No. November February 25, 1945. Decided *2 Doherty argued appellant. H. the cause for Cornelius Stanley H. him the brief Kamerow. With on argued the cause for appellee. H. Edwards Horace Miller, Henry R. Jr. him on the brief was With Rutledge delivered opinion Justice Mr. Court. tax laid ordi- question is whether a license an Virginia, upon engaging City Richmond, of the
nance applied can be in the facts of this in business as solicitor clause the Federal consistently the commerce case made, Constitution, I, Article 8. As the case has been § substantially long whether the line of so-called issue is Shelby beginning cases”1 with Robbins “drummer 1 Co., in McGoldrick v. Berwind-White cited See the authorities discussion, particularly 11. note 33, 55-57, and the Court’s S.U. Shelby County cognizant stated, in case the Court was As there lay municipalities growing tendency states and rapidly embarrassing purpose of drummers “for the license taxes District, be adhered 120 U. shall Taxing County light in the of what be overruled shall now in result requiring recent trends say are city for the attorneys outcome. annual license tax follow- lays an
The ordinance terms: ing — — Agents Persons, Solicitors . . .—
“[Upon] engaged in Corporations business solici Firms per of one $50.00 and one-half centum . . . tors receipts, fees or commissions for earnings, gross $1,000.00. Per year excess of license preceding li required before Safety Public Director of mit of . . .”* be issued. will cense Shelby following County merchants,” and with local competition invalid. were held such taxes nineteen decision peddlers, drummers and see between of distinction discussion For a Comment, Yale L. J. *3 (1939). City 10, 23, Code Chapter Richmond § “Every corpora- (a) person, firm and 10, reads: Chapter § 166% 16, 23, 94, 143, 120 and of desiring sections license-under a tion Safety apply Public a first to the Director of for chapter shall individual, corporation, firm or as the case of said permit on behalf which is desired to be conducted and may be, the business to conduct good evidence of the character of the Director produce to that shall firm, the chief of the officers the cor- individual, of the.members duty thereupon may be, it shall be the of and the poration, as the case investigation Safety to make a reasonable of the Public Director of firm, of individual, each of the members the or each said of character may be, corporation, as the case if of and the he the chief officers of prin- firm individual, members of the or the the the be satisfied good Corporation, may be, the case be of moral cipal of the officers engage proposed in the persons fit to busi- person and a character application permit. The form of the for such ness, issue the he shall permit prepared itself 'shall be the form of the and permit and Safety.” by Public the Director of furnished argued require- in Appellant has this Court that the ordinance’s they may relating particularly in permits, so far as ments to vest Safety discretionary power grant Director Public to with- the permit, their the own force without reference to the hold char- having engaged for in Richmond was arrested Appellant previously pro there without solicitor in the business a before hearing police After required license. curing the and costs and ordered $25.00 was fined justice she court Hustings to the appeal An was noted secure a license. to was trial de novo Richmond, where a City Court of the forth agreed of facts set had the statement *3 appli Hustings held the ordinance margin.* Court present respects invalid in the the in other render it acter of presented in point not application. Appellee insists open here. In courts and therefore is not for consideration the state grounds, is disposition cause on other view of the we make necessary questions. consider these to operated Company, which is owned and “The American Garment Street, E., 3617 12th N-. Rosser, its main office at John V. engaged Washington, C., manufacture and sale of certain D. is garments. Company employs solicitors The American ladies’ Garment throughout country City City and obtain travel from who garment, $2.98, particular which is sold for orders for this purchaser payment usually sufficient a down solicitor receives from the solicitor, pay commissionof the and the order is then sent to the garment Company American Garment and the home office of the through then sent the United States mails C. O. D. the balance delivery purchaser. The solicitors at no time make a article. herein was not and is not carried on the rolls of the
“The defendant Company employee compensa-, her sole American Garment as an tion commission received is the from the sale of each article. defendant, Dorothy' Nippert, January 20, 1944,
“The on was so- liciting Company, orders for the American Garment as above set forth, City Richmond, Dorothy Nippert and that had been engaged days prior January 20, 1944, going place for four .from *4 place City soliciting to the of Richmond and in orders for the sale Company had, merchandise on behalf of the American Garment of and engaged going place during time, place been from within that Rhoads, large places the business of Miller de- of & a Incorporated, City place partment store in the of Richmond and within the of busi- Richmond, City- Ten in the of one of the Five and Cent Stores of ness soliciting procure therein the Clerks in those stores so as from and by the disclosed circumstances appellant cable to not was that, applied, so opinion the was of facts and Accordingly the clause. the commerce with conflict dollars finéd her five guilty appellant found the court Virginia Appeals Court of Supreme costs. judg From 2d 206. 689, 33 S. E. 183 Va. affirmed. here the case comes highest court ment the State’s appeal. on the basis solely
If
matter
is to be settled
reference
required than bare
nothing more is
authority,
held
have
decisions, which
list of drummer
long
has exacted
that such a tax as Richmond
unvaryingly
identical
constitutionally to situations
applied
cannot be
case.
.to the facts' of
substantially
similar
with
Mills
Hosiery
Silk
v.
is Real
Among
latest of these
municipal ordinance
Portland,
in which a
325,
268 U. S.
fee
held uncon
a license
pay
solicitors to
requiring
com
upon interstate
forbidden burden
as a
stitutional
whose
corporation
to an out-of-state
applied
when
merce
subsequent
for
interstate
orders
solicited
representatives
Maxwell,
421 urged indistinguishable York.4 It is that the case is present relating the one tenable on basis to the bear- ing commerce, or effect upon although of the tax interstate opinion length cases, the reviewed at some drummer among distinguished others, expressly and them.5 pronouncement therefore this latest their upon
Unless be with the cases continuing authority put is to aside in this themselves, application made of the ordinance pre- be stricken down. For the tax laid is case must thus imposed “fixed-sum license taxes on the business cisely the shipped soliciting purchase goods orders for the of to be 4 appears placed also other more recent reliance to be Some Department including Treas cases, International Harvester Co. v. Trading Commission, ury, General Co. v. Tax 322 and State U. S. U. S. County itself, Shelby Pointing out, a reference to the case with sup appeared the cases the tax to be aimed at that some of disadvantage putting pression type of business or it at of this sales,.the opinion competing continued: intrastate operation, cases], statute, its.practical “In cited all [the in, tax, operated through capable use, increase fact doing place thus business interstate at some extent to the merchant disadvantage stores competition with untaxed sales at retail a circumstances, may by state, tax- state. a in some within the While to the suppress type curtail intrastate business ad- one ation type competing business which is left un- vantage of another may sim- interstate commerce it does not follow that taxed, ... taxing . operation of a state statute. . . ilarly practical affected Shelby v. that the rule of Robbins enough present purposes It is narrowly supra, limited to fixed- County Taxing District, has been soliciting orders for the imposed business of on the taxes sum license .; actual shipped . . goods to be purchase of wholly wanting such tax is on the commerce effect and potential Maxwell In Best & Co. v. 56-57. 309 U. S. at present cáse.” we Berwind-White Co. ... v. “In McGoldrick the Court said: Shelby following Robbins line of decisions pointed out in- discrimination potential County the actual . . rested on . 454, 455, note 3. license taxes.” herent in certain fixed-sum TJ. opinion distin Berwind-White which the interstate” New York tax.6 from the guished re the rationale of the decision told that we are But *6 it, counsel be discarded. As state to quires the distinction events which imposed upon the was “that this was are jurisdiction which events taxing the within occurred inter transportation or distinct from the and separate 7 com logic is commerce.” interstate which is course the upon the New York tax noting by pleted in “delivery” this case it is on the of while incident” “local “solicitation”;-and by adding the conten like incident argument by since the our substance more tion, given Washington, Shoe Co. in International decision con regular, “mere when it is solicitation” 310, that U. S. merely casual, than con persistent, rather tinuous formerly business,” contrary prevailing to “doing stitutes in concluded, delivery the the is since Hence it notions. the taxed, be so can solicitation case could Berwind-White in case. this apply the sum” reference would 5. not “fixed See note Whether gross (cf. language part by receipts in the the measured a tax
to relating earnings, etc., $1000), excess of in this case ordinance presumably feature, applied here involve that would the tax as applies only earnings, explicit wording etc., “for the by since the showing relating there is year” and no to such earn preceding license ings 7. case. See also note differentiating statement made Adams Counsel cite Court’s the Storen, rationale the Adams Manu Mfg. 304 U. S. “The Co. v. facturing present not call for condemnation of tax. case does Co. goods activity, delivery upon is a local Here the tax conditioned consumption.” upon purchase 309 U. within the state their added.) immediately (Emphasis went on However, Court at commerce, say, activity apart which, is an from its effect on the “It tax, subject taxing though power. The effect even state shown, price suprai], has note 6 as been measured sales [cf. commerce more neither discriminates nor obstructs repeatedly been sustained than numerous other state which have taxes Ibid. involving prohibited regulation as no interstate commerce.” partial only takes account of Appellee’s rationalization the Berwind-White policy underlying reasoning of the drummer authori- differentiation decision and its a state tax thing necessary If to sustain ties. to discover some interstate commerce were bearing upon regarded separate might incident which be local intercourse which is” “the.transportation distinct from that inci- lay itself and then to the tax on the commerce subjected to state dent, interstate commerce could all economic regard and without to the substantial taxation For situation of the tax the commerce. effects an inter- some incident of is difficult to think of which coúld not be taking place within a State state transaction made the gymnastics and segregated by an act of mental place takes tax. All interstate commerce fulcrum of the necessarily involves the .confines of the States and within *7 through each which occurring within State “incidents” in And there is connected fact. or with which it passes capacity the human mind’s carve limit to is no known integral process entire or economic from what is an out incidents, “separate label them or phases particular thus achieve its desired result. “local,” and distinct” or bearing every decided that state tax not been yet It has valid, if some becomes affecting commerce or incident” conveniently separable “local conceivably or This is not the focus of the tax. made be found and may local incidents is irrel- of so-called presence the say that in any absence of connection contrary the On the evant. the would suffi- commerce and state be the fact between striking process down the tax on due cient in itself in connections, an alone; and substantial even grounds the inadequate support held have been sense, economic con- beyond presence the of a sufficient tax.8 But local Co., being McLeod v. Dilworth here latest instance decided 322 U. S. sense, “jurisdictional” whether in or process a due
nection affecting to or related commerce “local incident” or depends upon subject of state taxation made the be may having policy ref- of constitutional considerations other effects, potential, actual or the to the erence substantial burdening unduly or suppressing the tax in particular emphasized least in these at were Some of commerce.9 opinion. Berwind-White the referring Shelby County to the line Court, Thus proper in their decisions, that “read historical stressed support be said to the view may eases that setting these to be likely used ‘as an instru- a tax is kind of foreign interstate or discrimination ment the tax “in practical op- .”10 that . . commerce’ through in capable use, tax, increase eration, extent place to some the merchant operated in fact arid disadvantage interstate at a com- doing business thus at within with untaxed sales retail stores petition can Noting that the State some instances state.” local for the curtail one kind of business ad- suppress competing business, type opinion vantage another “may similarly commerce af- denied taxing statute,” of a state practical operation fected New York had such denied that the actual and also potential effect. Thus the essence of the distinction Berwind- taken case was that the taxes outlawed the drummer White notwithstanding many deviations, early old.doctrine, It is tax, potential, operation of actual rather than its de practical *8 the label or formal character determinative. See author scriptive The Berwind-White and other cases, in note recent cited 23- ities Maxwell, 454, only bring Best & Co. v. including 311 S. U. doc Lockhart, The in Interstate Com date. Cf. Sales Tax down to trine 617, (1939) 52 L. Rev. 621. merce Harv. 10 5, supra. 56, 11; note 309 U. S. at note see 11 note 6. See
425 practical operation their worked discriminatorily cases impose upon burden, commerce incidence, very either fact or threat of its by which competing local business they place upon did not which the New sales tax did not See York create.12 Best Maxwell, Sears, 311 U. 454; & Co. v. S. cf. Nelson v. Roe Co., buck & U. S. 359. 312
As has been
often
so
stated but nevertheless seems to
require constant repetition, not all burdens upon com
merce, but only undue or discriminatory ones,
forb
are
though
For,
idden.13
“interstate business must
pay
way,”14 a State consistently with the commerce clause
canpot put a barrier around its borders to bar out trade
from other States and
bring
naught
great
thus
con
purpose
stitutional
giving
fathers in
Congress
regulate
“To
power
Commerce with foreign Nations,
among
the several States . . .”15
may
pro
Nor
Lockhart,
See
(1939)
Sales Tax in Interstate Commerce
617,
Harv. L. Rev.
Telegraph-Cable
Cf. Postal
Richmond,
252, 259;
Co. v.
249 U. S.
Live Stock
Revenue,
250, 254;
Western
v. Bureau
303 U.
Mc
S.
Co.,
Goldrick
33, 46;
Sears,
v. Berwind-White
309 U. S.
Nelson v.
Co.,
Roebuck &
hibition discriminatory effect.16 excluding produces Supreme Ap- Court of argues, Virginia as the Appellee discriminatory tax is not peals held,17that the Richmond support in In of this view unduly burdensome effect. mainly contentions, first, relies on two that tax is it discriminatory or was the tax no more burdensome than in case; and, second, applies the Berwind-White that in they engaged alike to all solicitors whether solicit- are ing for local or for Apart interstate business. fact that the tax as here applied directly upon is laid sales arising only under requiring shipment contracts of goods, cf. 309 U. ff., entirely S. 48 contentions mis- conceive what is meant discrimination or undue burden applicable problems. sense to these
In ruling view of the in International Shoe Co. v. Wash- ington, supra, put we aside any suggestion that “solici- tation,” when conducted regularly and continuously within State, so as to constitute a course of business, may not “aoing just business” making as is the delivery, any at rate for the purpose focusing which other respects would be sustainable. But we do not think the tax as applied it was in this case either conforms to those conditions of regularity and continuity , or avoids other prohibited effects.
The sales and the
deliveries
the Berwind-White case
were regular, continuous and persistent. They consti-
tuted a “course of business.” There was no suggestion,
nor
basis
the facts
.one,
they,
were only
casual, spasmodic
irregular.
On
present
record the
16Cf. Western Live Stock v. Bureau Revenue,
250, 256;
303 U. S.
Baldwin
Seelig,
v. G. A. F.
Inc., 511,
U.
522-523;
Best & Co. v.
Maxwell, 311
454, 455,
U. S.
and authorities cited in note 3 therein.
17See, in addition to
case,
Norfolk,
instant
Dunston v.
177 Va.
689,
This difference But other differences. cases. there are distinguish the to year, for the fixed substantial sum first The tax here awas. which, be added one-half subsequent years in would And, $1000. cent returns in excess per gross of the one issuing func- discretionary element regardless permit his was re- Safety, Public tion of the Director of could of the tax before license quired payment lawfully place, take or the could issue act of solicitation for violation. far being prescribed criminal sanction So single of unlicensed solicitation appears a act would as inherently thus bore bring play. the sanction into The tax or relation the volume of business done of returns no tax, hand, it. York sales on the was from The New other gross returns, being limited to a percentage thus directly to the proportioned volume of business transacted it. Although returns from was and of the seller under put the tax within a duty pay specified sale, time from the required permit he was not to obtain or a license before- in initiate or comp? hand order to ffe the transaction. tax fell only Moreover the economic incidence of the upon transactions, not completed this case on very bringing step initial one toward about. taxes, first, are the two therefore
Obviously different
small
upon
out-
exclusionary effects, especially
in their
regular;
also,
whether casual
operators,
of-state
discriminatory
effects as between
clear,
seem
it would
the same
or other
type
local ones of
operators
such
tax
New York
bore
local merchants.
competing
whether
local or
upon all,
out-of-state
equally
single
engaging
sale
casual ones
making
whether
throughout
year.
As the Court
continuously
them
is difficult
see how the New York'tax could bear
said, it
heavily upon
any
operators
case more
out-of-state
than
ones, apart
possible multiple
local
state tax-
upon
as, among
of it such
or the threat
other consid-
ation
erations,18
thought
levy
to forbid the
and collection
Mfg.
Storen,
tax in
Co.
18The statute as measure, from interstate sales is that the tax includes in its without apportionment, receipts derived from activities in interstate com ; that the is merce and exaction of such a character may that if lawful it by goods in substance laid to the fullest extent States in which they are sold as well as which those are manufactured. Interstate subjected commerce would thus be to the risk.of a tax double burden exposed, which intrastate commerce is not and which the commerce forbids. We clause have held that regu such a tax is a repeatedly of, upon, lation and a burden prohibited by commerce I, opinion Article 8 of the Constitution. The Supreme § the State generality Court nondiscriminatory stresses the character of the exaction, but it is settled that will if directly not save the burdens interstate commerce.” 304 U. atS. 311-312. 19It should question be noted that no has been raised this case concerning any “multiple issue of so-called state taxation.” Cf. note 7. In addition to that possibility, Richmond tax im- poses excluding substantial and discriminatory effects own. said, As has been operator small par- ticularly and more especially the casual or occasional one from out of the will State find the tax burden- prohibitive, some but with the result that the commerce stopped begun. before it is And this effect will be extended to regular more substantial and operators, par- ticularly those whose product is of highly limited or special character and whose market any single locality for that reason or others cannot be mined more than once in every so often.20
The potential éxeluding effects for itinerant salesmen become apparent more when the consequences in creasing the amount of the tax are considered. Cf. Mc Co., Goldrick v. Berwind-White supra, at 58. they And magnified are many times by recalling that the tax is municipal tax, imposed not one by the legislature state for application uniform throughout the State. is true that in legal theory
It the municipality exer- by delegation cises legislative State’s power and that prior decisions here have not rested squarely upon any difference between a tax municipally imposed and one by legislature. laid But the cumulative effect, prac- nondiscriminatory may But if a state tax become discriminatory or by unduly burdensome virtue of the fact that other States may also impose bearing upon a similar tax transaction, possibilities multiplication obviously would seem such magnified to be many application municipal times taxes like that involved here. *12 20 The established maintaining merchant place a local of business variety where he deals in a commodities, instance, for is much more favorably placed to absorb the cost of the tax than the itinerant ven "dor who deals in single or takes specialized orders a commodity only or a few. appellant The record does not show whether would have been com-
pensated by company the solicits, for whom she paid had she the tax. 430 laid succession municipal taxes of flat speaking,
tically town from to passes he the itinerant merchant any tax state- than that of greater obviously town itself. legislature the by be laid application likely to wide burden cumulative it is as obvious And almost itinerant by out-of-state strongly be felt more will movement within his confines by than the one who single com- within a operates who or the salesman State or whose munity salesman a few.21 drummer place, ex- place from to him to move requires business conducting visit or hausting periodic market each his at reference to with sporadic more fashion his business find burden of localities, the cumulative would particular all return eating away possible type Richmond tax days there, A now day. here, day a five selling. his a flat later, months year or several days five a to annually imposed lacking proportion license length volume of busi- of visits the number against only part solicitors constitute The discriminations Hearings be general problem of interstate trade barriers. See more Committee, Cong., Temporary National Economic 76th 2d fore Melder, 29; and Local Barriers to Interstate Com Sess., Pt. State types (1937). States But as to different merce in the United against designed to favor local business as and ordinances statutes peddlers “gypsy truckers,” Hearings, see solicitors and itinerant printed (not and Exhibit No. 2394 in the swpra, 15965-15987 included Legislative Hearings); Gould, Conflict between .Intervention (1941) Direct-Selling Distribution Channels Law & Orthodox discourage Contemp. 318. method used to solicitors has Prob. One require said “In some It is that- New elaborate information. been Jersey method reduced the number canvassers cities has Management 83. And Arizona at one time per cent.” 18 Public through trucker, State, all the counties of the went an itinerant who obliged $4,400 posting pay in fees have been addition would addition, licensing supra, 2353. In $5,000 Hearings, bond. Ex. face, statutes, fair on their are said have been discrim otherwise (1940) inatorily enforced itinerant merchants. See Note L. J. 247, Ind. *13 stoppage return, large mean the of a only can
ness either in which be carried on of commerce would amount taking of under the incidence one of the tax or the absence of these variations. account type in the Berwind-White effects, present
These type relation tax,22 inherent Richmond are of They selling only activities. are not variety wide to a many sense, applications. absolute prohibitive an discriminatory in favor of local merchant are They one. out-of-state as contends, appellee the tax answer, It is no as discriminatory on nor the face of prohibitive neither doing local applies or that it to all distributors ordinance; Not the tax in has done. a vacuum appellant as business consequences doing for the words, practical but its to concrete facts are applications commerce ignore the effect which To variations our concern.23 tax, of the uniform on the face application follow different fact highly only situations is ordinance, In consequences. that blind- ignore practical those appellee’s tax and of position. lies vice of ness Berwind-White case furnishes an illustration that the dif 22 The may municipal taxes and state-wide not be con between ference which, apart in relation to a tax from the trolling or even relevant taxation, presents prohibi multiple state neither possibility nor consequences in Richmond’s element inherent tive of local business. The itinerant in favor out-of-state discrimination survive, according York sales tax and pay New could merchant compared any disadvantage effect, as general without with local to its established, resulting tax, excepting from the merchants, itinerant multiple taxation. possibility state Texas, Galveston, H. S. A. R. Co. v. 217, 224, 227; & 210 U. S. Cf. Commission, 280; Tax Southern 286 U. S. Lawrence State v. Penney Gallagher, Wisconsin v. J. C. 167, 177; 306 U. S. v. Co. Pacific Sears, Co., 435, 444, 445; Nelson Roebuck & Co., U. S. 311 U. 359, 363, 366. be taken variations, cannot those reason of tax, by manner in the same local distributors generally apply dis- to out-of-state in application with like effects *14 their busi- in locations difference very
tributors. this makes their activities if and of any, headquarters, ness way saying another course, is but This, of impossible. trade, and local between veiy difference that the character the inherent conjunction with in taken those two as between application equality of tax, makes speaking, impossible. commerce, generally classes of some heavily upon strike as may that the It is true them- who confine upon even some solicitors, and Virginia come who upon it does others Richmond, as to selves New York Washington, or otherwise periodically few of the former upon bear a may And it Rapids. Cedar neither But most of the latter. upon than heavily more larger num- for the probable more one is the consequence And way. likelihood is the other strong cases. The ber in say, to possibilities those to either of point in- in highly variable its tax is way, that the different a in which to the manner with reference effects cidence and in to its especially respect organizes his business one ex- in state lines. It was relation to spread location burden with undue variations, they when bear actly these com- lines, which the that crosses state commerce prevent. was intended clause merce which “does large enterprise are not unmindful We regularly continuously sending solicitors by business” Washing- Shoe Co. v. States, cf. International into several financial resources and estab- have the ton, supra, may enabling it to absorb tax and business course of lished that, there- sense; in doing so an economic justifying situation, ruling if should extend to such a fore, bearing escape would to that extent so situated business similarly local businesses the tax borne the burden of equalize form tax other situated, absent some presented no case is in first But, place, such burden. result if should And such even by the facts here.24 conse- the forbidden to avoid thought order necessary that fact would not applications, in so other quences many those conse- permitting the tax and sustaining justify occur. quences to or its munici power in the State no lack of
There is local bears with commerce see that interstate palities to more government, the cost of local trade its fair share of Mc field. of recent trends especially view Co., supra. But this does not Berwind-White Goldrick v. the state signify, mean, and trends do applicable a tax governments may devise municipal discriminates down or alike, all commerce which strikes to reach order of that against large volumes commerce *15 the tax of application to which portions other as firm out-of-state and appellant for án record Since works any presence in at time other nothing her Richmond contains to show return, fivé-day or intention to during period, than the one casually, presumption can she periodically no arise whether or engaged regularly in solicitation was a resident of Richmond was way. us is the presumption on the facts before other there. The Maxwell, Moreover, 311 U. here in Best & v. “real as Co. among others, competitors” petitioner are, the local retail mer- of ordinance, statute, unlike the North Carolina The Richmond chants. between such merchants and transient does not discriminate on face opinion solicitors; it fix a lower rate for the former. But the nor does pointed nominally the expressly out that statute Best case Nevertheless, since transients alike. treated local and out-of-state “regular competition obviously principal came retail latters’ probable sales,” bore relation to actual or merchants” and the tax “no atmosphere too hostile allow the Court found the North Carolina resulting from survival The discrimination of commerce. ordinance, present application out- as between of the Richmond regular merchants, only less of-state solicitors obvious. retail It is less real. not Cf. note 5. only negligible produce consequences no such
would ones; for types reaching Other are available both the forbidden which do not involve evils or the portions necessity putting them some commerce in order problem reach other. The comes down therefore to municipal legislative whether state or bodies fram- taxing ing their measures to reach interstate commerce pains in a shall be at to do so manner which avoids the evils forbidden the commerce clause puts actually upon plane equality commerce local taxation, not question trade local as is said to a whether interstate trade shall bear its fair share of the government, the benefit protection cost of local enjoys par which it on a with local business. in question
The tax here inherently many involves too actualities, we think probabilities, and for exclusion25 or discrimination interstate commerce, in favor competing business, of local to be in any sustained appli- substantially present cation similar to the one. Whether intended, not it was so those are its necessary effects. Indeed, in view of that fact and of common knowl- others edge, we cannot be unmindful, predecessors our. were when they struck down the taxes, drummer that these lend themselves peculiarly ordinances creating those consequences very or that fact this is often if not al- object ways local commercial influences which adoption. their induce Provincial interests and local political power are weight at their maximum in bringing acceptance about of this type legislation. With the *16 it, forces behind this very is the kind of barrier the com- merce clause was in put the fundamental guard law to against. may be, It as the said Coqrt Berwind-
25Obviously a total exclusion of commerce is itself the most effec tive form of discrimination in favor of the local merchant iswho so situated that he can continue business. municipal to allow is free the State case, that
White other, against each barriers such erect subdivisions which the State over the commerce extent, toas to some burden outlaw or It cannot so control. exclusive has United States. of the the commerce representative by-gone figure is a drummer a. The more persists under prototype modern But his day.26 the basic reasons endure So appellations. euphonious kind from the of local protection his brought about which typify. this case the facts of favoritism other contentions appellee’s have considered We merit. them without find ife judgment
Reversed. no the consideration part took Jackson Justice Me. this case. decision Black dissents. Justice Mr. Douglas, with whom Justice Justice
Mr. Mr. Murphy concurs, dissenting. shared the doubts which some us has not
The Court acting judiciary concerning propriety had have it legislation ground on the burdens to.nullify state Arizona, Southern Co. v. See commerce. Pacific dissenting opinions. But 784, 795, U. S. firmly contrary. established to the of the Court policy however, judgment view, should not in that Even has held drummer taxes uncon- The Court reversed. discriminatory on their face they were where stitutional appeared necessarily practical op- where part See, played history, Wright, for the in our itinerants Early (1927). and Walkers America Peddlers were dis Hawkers early criminated in favor town merchants as 1700. Wright, supra, at 90. *17 disadvantage they
eration worked to the of interstate Co., commerce. See McGoldrick Berwind-White v. 33, 45-46, present note 2. But the ordinance on its U. S. face to reflect more than a bona effort to seems no fide commerce Live pay way. make interstate Western Revenue, It Stock Bureau 303 U. 254. treats v. S. of. Virginia exactly a solicitor for a manufacturer same as it treats solicitors for located other manufacturers tax, type States. Under this for a the solicitor Vir ginia he pays Nippert, manufacturer as much as whether locality way through confines himself to one his works (cid:127) the State.
In grant immunity that view Nippert a is the grant of preference to interstate commerce. however, problem, does end there. Best & not_ Maxwell,
Co. In U. that a North case, tax goods any Carolina on those who displayed hotel temporary room or office order to obtain retail orders applicable representing solicitors local as well as out-of-state distributors. We held that parity that did not treatment save the tax. We that tax said must compared tax on the local retail merchants— competitors” the “real out-of-state solicitor. Find- ing that the tax on the local lighter, retail merchants was we held that discriminated the out-of-state solicitor was therefore invalid.
In present case the tax not, on Nippert may may in practical operation, work the disadvantage of this interstate business. thing Nippert’s It would be one if throughout took business her town to town the State. But, far as know, Nippert may so be a we resident of Rich- working exclusively there, mond full part In time. event, we not determine the could issue of discrimination knowing without what the retail taxes merchants Rich- must If pay. known, mond the facts were it might appear tax, down, in fact in parity now struck resulted Nippert competitors. of treatment between and her local enlighten The record does not us on of these matters. *18 I though think that complains tax, one who that a state discriminatory face, on its discriminates inter operation state commerce its actual should required be come forward with proof charge. to sustain the See Railway 524, Southern King, Co. v. 217 U. S. 534-537. not, course, This does require proof of the obvious. But, Mr. Justice pointed out, Brandéis cases this- type should not be decided the basis of speculation; on special facts and circumstances will often be decisive. Line, Hammond v. Schappi Bus 275 U. 164, 170-172. Without evidence findings we frequently can have no “sure basis” for the judgment informed that is neces sary for decision. Terminal Railroad Assn. v. Brother Trainmen, 1, hood 318 U. S. 8. That seems to me to the case here. Proof should be required to overcome presumptive validity legislation of this local as applied Nippert. UNITED STATES v. AMERICAN UNION TRANS
PORT, INC. et al. Argued February 25, 44. 1945. Decided October No.