76 W. Va. 680 | W. Va. | 1915
Claiming that plaintiff was engaged in a merchants trading stamp business in the counties of Preston and Mineral, during the fiscal year beginning July 1, 1913, and ending June 30, 1914, for which it is required by law to pay an annual license tax of $500 in each of said counties, the state tax commissioner issued license taxes for each of said counties, adding thereto the statutory penalty for failure to pay promptly, and placed them in the hands of the respective sheriffs of said counties for collection. They were later returned, with the officer’s statements endorsed thereon that plaintiff had no property in said counties. The tax commissioner thereupon placed them in the hands of defendant, sheriff of Kanawha county, who levied them upon plaintiff’s property in the city of Charleston, Kanawha county. Plaintiff then filed its bill in the circuit Court of Kanawha county against said sheriff, averring that it had done no business in either of said counties, within the license year above named, for which it is liable to pay a tax, and had made no application to the tax commissioner for such license, and prayed that the sheriff be perpetually enjoined from selling its property, and that the license tax be declared illegal and void. Defendant demurred and answered, denying the allegations of the bill. Plaintiff replied generally, and on the 28th of September, 1914, the cause was heard upon depositions taken by each of the parties to the cause, and a final decree made, in which the court held- that plaintiff was not, in any manner, engaged in business in Preston county, and that the business done by it in Mineral county, for the license year named, was done solely by mail orders sent from that county to its branch
Plaintiff is a New Jersey corporation authorized by charter to carry on a merchants trading stamp business, which is a peculiar form of advertising the business of retail merchants, having its principal place of business in the city of New York, and branch offices elsewhere.
Sec. 2, clause (j), Ch. 32, Code 1913, provides as follows: “No person without a State license therefore shall * * * (j) sell, offer or expose for sale to merchants, trading stamps, premium stamps or certificates of like nature or character or undertake with merchants to redeem such stamps or certificates in money or goods.” By See. 35, same chapter, such license is required for each county in which such business is carried on; by Sec. 101, the annual license tax is fixed at $500; and Sec. 121, provides a penalty of 10% of the tax for each month’s default made in the payment thereof.
That the legislature has the right to prescribe a license tax for the privilege of conducting the business in which plaintiff was engaged, when carried on in this state, is not denied. That question was decided in Sperry & Hutchinson Co. v. Melton, 69 W. Va. 124.
Defendant contends that plaintiff sold stamps to the Offutt-Lakin Company, and also redeemed them in the license year beginning July 1, 1913. This it denies, but admits that it paid .a license tax in Preston county for the fiscal year beginning July 1, 1911, and also for the fiscal year next following. But, for the latter year, it claims that it was not legally bound to pay the tax, and did so under protest, and after levy therefor had been made on its goods in Clarksburg. A contract, between it and the Offutt-Lakin Company, retail merchants doing busines at Terra Alta, Preston county, dated June 18, 1912, appears in the record, by which it agreed to sell Offutt-Lakin Company trading stamps, and redeem them from their cash customers. That agreement was for a year from its date, and, in terms, provided that it should renew itself automatically for periods of one j^ear each, from year1'
Viewing the foregoing evidence in the strongest light against plaintiff, it does not prove that it sold, offered or exposed for sale, or that it undertook with any merchant, to redeem merchants trading stamps, either in Preston or in Mineral county.
Plaintiff admits that it did business in Mineral county, but claims that it was an interstate business carried on solely by mail orders, and that the state has no right- to require a license tax therefor. The evidence, as to either county, proves no more than that it was conducting its business with its customers in Preston and Mineral counties from its branch office in Cumberland, through the mail. That plaintiff’s business thereby became an interstate commerce, exempt from state taxation by clause 3, See. 8, Art. I, of the Federal Constitution, scarcely admits of doubt.
“Stocks, bonds, debentures, and other securities are subject-matters of Interstate commerce.” Bracey v. Darst, 218 Fed. 482. See also, Lottery Case, 188 U. S. 321.
Commerce, as used in the federal constitution, is a comprehensive term, and means more than traffic. Transmission of intelligence by a correspondence school has been held to be commerce. International Text Book Co. v. Pigg, 217 U. S. 93.
That a license tax exacted by a state for doing an interstate business, is indirectly a tax upon interstate commerce, and hence in violation of the Federal Constitution, is well settled.
“A state law is unconstitutional and void which requires a
The decree is affirmed.
Affirmed.