Rothermel v. Meyerle
1890 Pa. LEXIS 1027
Pennsylvania Court of Common P...
1890
Check Treatment

Opinion,

Mk. Justice Clank :

The defendant was a resident of Montgomery county, and, for anything that appears, was a citizen of this state. He was, in the year 1889, a huckster or peddler, and, in the pursuit of his business, bought articles of produce in Berks county, with the purpose of shipping the same for sale in Montgomery county and in the city of Philadelphia. His residence and his business being wholly confined to the state of Pennsylvania, he cannot, of course, be said to have been engaged in inter-state commerce. But it is contended that as the act of April 8, 1861, P. L. 258, applies as well to the sale or barter, in such articles of country produce, in the markets of other states, as in the markets of this state outside of Berks county, and imposes a penalty for violation of its provisions, it is wholly unconstitutional and void, and imposes no obligation even upon those not engaged in inter-state commerce.

Article 1, § 8, cl. 4, of the constitution of the United States, provides that congress shall have power “ to regulate commerce with foreign nations, and among the several states,” and § 10, cl. 2, of the same article, “ that no state shall, without the consent of congress, lay any imposts or duties on imports or exports.” As the “ imports ” and “ exports ” mentioned in the latter clause quoted, have reference only to goods brought from or carried to foreign countries, and not to goods transported *263from one state to another: Woodruff v. Parham, 8 Wall. 123; Brown v. Houston, 114 U. S. 622, no question can arise as to their application to this case. The articles mentioned in the act are “ butter, eggs, dried fruit, veal, or other article of produce.” As the commodities particularly intended are specified, any “ other article of produce ” would be restricted to articles ejusdem generis. It is scarcely reasonable to suppose that purchases for exportation from the country were in the mind of the legislature. But the power to regulate commerce among the several states is granted to congress in terms as absolute as is the power to regulate commerce with foreign nations, and that power is exclusive whenever the matter is national, or admits of a uniform system or plan of regulation. No state has power to make any law which will affect the free and unrestricted intercourse and trade between the states: Brown v. Houston, supra.

In Welton v. Missouri, 91 U. S. 275, it was held that a license tax required for the sale of goods is, in effect, a tax upon the goods themselves. “ If such a tax,” says the court in that case, “ be within the power of the state to levy, it matters not whether it be raised directly from the goods, or indirectly from them, through the license to the dealer; but, if such tax conflicts with any power vested in congress by the constitution of the United States, it will not be any the less invalid because enforced through the form of a personal license.” In Brown v. Maryland, 12 Wheat. 425, 444, it was sought to impose a license tax upon an importer of foreign goods, and it was held that the exaction of a license tax from the importer was simply the imposition of a tax on the goods imported, and that a state tax, to this effect, was in conflict with the commerce clauses of the constitution. A tax on the occupation of an importer, as it must add to the price of the article to be paid by the consumer, or by the importer himself, in like manner as a direct duty, was held to be the same as a tax on importation. Upon the reasoning of these and other cases, the appellee’s contention is that the exaction of a license fee, under the act of 1861, may in the same sense be regarded as a tax upon the property purchased by the huckster, and, as respects goods transported into other states, as an impost on the goods exported. We cannot see how this contention can be sustained. The license fee, at *264the best, could only be treated as a tax on the goods at the time of the purchase, and they were then part of the general mass of property within the state liable to taxation, and so remained until the goods began to move as an article of trade from one state to another, at which time commerce in that commodity may be said to commence: The Daniel Ball, 10 Wall. 557. A commodity cannot be said to move as an article of ■trade from one state to another, until the business of transportation is actually commenced. It does not cease to be part of the general mass of property of the state, subject, as such, to its jurisdiction and to taxation in the usual way, until it has been shipped or entered with a common carrier for transportation to another state, or has been started upon such transportation on a continuous route or journey. Hence logs cut and hauled to the place where they were to be floated to another state, but kept in that place until it was convenient to float them away, were not yet commodities of inter-state commerce, but were taxable: Coe v. Errol, 116 U. S. 517. Even articles of import, as soon as the importer has so acted upon them that they become mixed in the general mass of property, are in like manner liable to taxation. If the commerce clauses of the constitution cover such a case as this, under the act of 1861, then it would seem that any statute, imposing a license or other tax upon any mercantile, manufacturing, or other business pursuit, would be without authority of law and void, for the persons thus taxed may carry these pursuits into interstate commerce.

Of course, no state can, by taxation, or otherwise, discriminate against the citizens of other states, and in favor of its own citizens, as to the business carried on by them in the state. Article IV., § 2 of the federal constitution, provides that citizens of each state are entitled to all the privileges and immunities of citizens of the several states : citizens of other states, therefore, must be accorded the same rights, under our laws, as the citizens of Pennsylvania. But the discrimination contained in the act of 1861 is not against citizens of other states more than citizens of our own state, nor against foreign markets more than domestic markets; it is directed, not against citizens of other states, but against non-residents of the county of Berks, and against markets outside of that county. Article IV., § 2 of the constitution of the United States has noth*265ing to do with the distinctions founded on domicile, merely: Lemmon v. People, 20 N. Y. 608, and hence it is that nonresident suitors may be required to give bail for costs, when persons residing in the state are not so required, etc. As to the purpose and effect of the section referred to, see Singer Mfg. Co. v. Wright, 33 Fed. R. 121; Machine Co. v. Gage, 100 U. S. 676; 11 Amer. & Eng. Encyc. of Law, 548, and cases there cited.

But, even if the act of 1861 might, in the case of a purchase of goods for sale in the markets of another state, be deemed obnoxious to the inter-state commerce clauses of the constitution, we are of opinion that no question of inter-state commerce is involved in this particular case. The defendant’s employment, as we have said, was one pursued exclusively within the state, and it is conceded that the state has power to pass laws imposing taxes upon avocations in no way connected with inter-state or foreign commerce. As respects persons pursuing this employment wholly within the state, however it may be in other cases, it was certainly a valid and proper exercise of legislative power. A statute may be void only so far as its provisions are repugnant to the constitution: one provision may be void, and this will not affect other provisions of the statute. If the part which is unconstitutional in its operation, is independent of, and readily separable from that which is constitutional, so that the latter may stand by itself, as the reasonable and proper expression of the legislative will, it may be sustained as such; but, if the part which is void is vital to the whole, or the other provisions are so dependent upon it, and so connected with it, that it may be presumed the legislature would not have passed one without the other, the whole statute is void: Gibbons v. Ogden, 9 Wheat. 203; City of New York v. Miln, 11 Pet. 102; Packet Co. v. Keokuk, 95 U. S. 80 ; Tiernan v. Rinker, 102 U. S. 123; Presser v. Illinois, 116 U. S. 252; Lea v. Bumm, 83 Pa. 237; In re Ruan St., 132 Pa. 257; Sedg., St. & Const. Law, 413. The constitutional and the unconstitutional provisions may even be contained in the same section of the law, and yet be perfectly distinct and separable, so that the former may stand though the latter fall: the question is, whether the several provisions are essentially and inseparably connected in substance: Hagerstown v. Dech*266ert, 32 Md. 369 ; 3 Amer. & Eng. Encyc. of Law, 677, and cases there cited.

Assuming the invalidity of the act of 1861, in so far as in its operation it is supposed to affect inter-state commerce, we are of opinion that the act is valid as to persons residing and doing business wholly within the state. That particular feature of the act, which, in its operation, is alleged to be unconstitutional, is easily and readily separable from that which is valid: the act can stand as well without as with it. The operation and effect of the statute may be restricted to the proper constitutional limits, and the object of the statute attained within these restrictions: at all events, it will not be presumed that the legislature would not have passed the statute to operate within the limitations imposed by the constitution. The real purpose of the act, doubtless, was to keep this kind of products for the home market, but, in view of the proximity of the great city of Philadelphia, and of other markets in eastern Pennsylvania, it is exceedingly probable that the legislature intended that the statute would accomplish its purpose within the bounds of the state.

In Robbins v. Taxing Dist., 120 U. S. 489, a license tax was imposed by the laws of Tennessee upon all drummers, etc., not having a licensed house or business within the taxing district of Shelby county, which, of course, included drummers representing business houses whether in or out of the state of Tennessee: but, as the goods sold by such drummers as represented houses outside of the state were not within the jurisdiction of the state, until, by the act of the importer they should become mixed with the mass of the goods within the state, the Supreme Court of the United States held that, as to this class of drummers, the statute affected inter-state commerce and to that extent was void; yet, not only in the opinion of the court, but in the dissenting opinion also, although the question was not directly involved, the validity of the statute as to drummers representing houses within the state was conceded. “ To say that the tax, if invalid as against drummers from other states,” says Mr. Justice Bradley, in the opinion of the court, “operates as a discrimination against the drummers of Tennessee, against whom it is conceded to be valid, is no argument, because the state is not bound to tax its own drummers; and, *267if it does so, whilst having no power to tax those of other states, it acts of its own free will, and is, itself, the author of such discrimination. As before said, the state may tax its own internal commerce ; but that does not give it any right to tax inter-state commerce.”

Nor, for the reasons stated by the learned judge of the court below, is the act of 1861 affected by the fourteenth amendment. The case turns upon the effect of what may be termed the commerce clause of the constitution; and we are of opinion that the act of 1861 was not in this ease violative of these provisions, and that, therefore, judgment should have been entered for the plaintiff.

The judgment is reversed, and judgment is now entered on the case stated, in favor of the plaintiff, for $100, and costs.