20 S.E. 179 | N.C. | 1894
Section 27, chapter 294, Laws 1893, being a part of Schedule B, the taxes in which are imposed as license taxes for the privilege of carrying on business or doing the act named, is as follows: "On every itinerant who puts up lightning-rods, $50 annually, for each county in which he carries on business." There is nothing in the words of the statute to indicate a purpose to levy a tax in any form upon, or to impose a restriction in any manner, upon citizens or inhabitants of other States from engaging in business connected with the commerce between the States which is protected from State legislation by the Constitution of the United States. The right of a State Legislature to tax trades, professions and avocations within the borders of the State has never been disputed.
It is earnestly contended, however, by the learned counsel, that the defendant was not an itinerant engaged in putting up lightning-rods, but that his business was that of selling, in which, of course, is (726) intended the delivery, an article manufactured in another State. That it appears by the special verdict that such sale and delivery included the putting up of said rods, whenever the purchaser so requested, and for which service no extra charge was to be made; and, therefore, that the imposition of a license tax upon defendant for putting up the rods sold by him "is an attempt to impose a tax on the business of carrying on interstate commerce." We are not disposed to question the principle so often laid down by the Supreme Court of the United States from Brown v.Maryland, 12 Wheat., 419, to Brennan v. Titusville,
Unless there is something in this special verdict which so connects the act of defendant in putting up the lightning-rods sold by him with the business of interstate commerce, it will be our duty to uphold the law of this State, and apply it to the case before us.
The whole matter is in a nutshell. After finding the fact that Cole Brothers were manufacturers in another State, and defendant was their agent in this State for the sale of their wares, it further finds "that such sale and delivery included the putting up of said rods, whenever the purchaser so requested, for which no extra charge was to be made." Under these circumstances, is the defendant liable for the license tax? *505
It will be seen that quantities of the goods were shipped to the agent, at some convenient point in this State, in original packages, and were after bulk broken distributed and delivered by him to the different purchasers. That the sale was not completed by delivery until after such breaking of bulk in this State, and that the quantity of the article was not determined in the order, as will appear by reference to Exhibit "A," and was to be determined after the importation of the original package. The consideration of these facts leads us to the conclusion that the present case may easily be distinguished from any of the (727) numerous adjudications on the subject. In Brennan's case, supra, the pictures were delivered, framed, direct to the purchaser. Of necessity, the goods, if many of them had been shipped to the agent for delivery, were separate and distinct from all other goods of the same character.
It was not obnoxious to the interstate commerce clause of the Constitution when a license tax was laid "on all peddlers of sewing-machines without regard to the place of growth or produce of material or of manufacture," because the test is "whether there is any discrimination in favor of the State which enacted the law." Machine Co. v.Gage,
If this license tax upon itinerants putting up lightning-rods could in the slightest degree affect the sale and delivery of the article, its effect upon the interstate commerce would be so incidental and remote as not to amount to a regulation of such commerce, as in Fickler v. Shelby,
In our case the business which could not be taxed was the sale of, or the solicitation of persons to purchase, the lightning-rods manufactured in another State. The avocation requiring a license is that of an itinerant putting up lightning-rods. The sale and delivery of the (728) article is not inseparable from the erection of it, any more than the shoeing of horses is from their importation into the State, or the *506 shipping here of wheat is from its sowing in the fields. Indeed it appears by the contract that the agent was only to put up the rods when requested so to do by the purchaser. The inference is that the purchaser might choose to employ some one else to put them up, and that a sufficient margin is allowed upon the price to fully pay the expenses of erection and make it to the interest of the purchaser to require the seller to put it up. One who goes through the country putting up rods is none the less liable to be taxed for the privilege of exercising his avocation because he adds to this business that of soliciting the purchase of the articles to be so put up by him. If such is the law it will not be difficult for persons whose avocations are taxed to engraft upon their business a branch for the sale of some article of foreign manufacture which is a necessary part of the business in which they are engaged. We may distinguish the manner of delivery of the articles named in Spain's case, 47 Fed., 208, if we were bound by the opinion delivered in that case. Certain specific articles, lamps, lamp-shades, etc., manufactured in West Virginia, were sold by the agent traveling in North Carolina for his principal. Many of the articles ordered were shipped in the same box to the agent, who took out the separate articles and completed the sale by delivery of the same to the purchasers. But here, a sufficient quantity of the lightning-rod material is shipped to the agent from which to fill orders theretofore taken; he selects from the bulk enough to fill the order of his customer and delivers it. The bulk was broken and the same became a part of the general property in the State before delivery when the package was opened, and a part thereof until then indistinguishable from the balance was set apart to be delivered to a particular purchaser.
(729) The latest, as far as we have been able to ascertain, of the very numerous deliverances of the highest court of this country upon the subject we have under consideration, is that of Brennan v.Titusville, supra.. The plaintiff was the agent of the manufacturer of picture-frames and maker of portraits, residing in Illinois. The plaintiff's business was to travel in Pennsylvania, and to solicit orders for said pictures and frames; the orders were forwarded by the plaintiff to his principal in Chicago, who shipped the goods direct, by express or freight, to the purchaser; the price of the goods was sometimes paid to the express company and sometimes to the agent. An ordinance of the city of Titusville had attempted to lay a license tax upon "all persons canvassing or soliciting within said city orders for goods, books, paintings, wares or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited."
This was so clearly within the rulings of the cases of Robbins and Asher that it scarcely required an elaborate opinion; its simple statement will show the particulars in which it differs from ours. *507
We conclude, then, that his Honor was in error in holding that the defendant was not guilty upon the special verdict, because:
1. The defendant was an itinerant putting up lightning-rods.
2. The connection between the pursuit of this avocation and the sale of articles manufactured in another State was so remote in its effect as to impose no burden upon the business of interstate commerce.
3. The manner of sale and delivery of the lightning-rods was such as to divest it of any feature of interstate commerce, the original packages being necessarily broken before the sale was completed by delivery.
There is error, and the judgment is
Reversed.
Cited: Collier v. Burgin,
(730)
