97 P. 129 | Utah | 1908
This appeal involves the validity and construction of sections 1710x and 1710x1 of title 61, Comp. Laws 1907, which are as follows:
“No person, firm, or corporation, as principal or agent, sliall peddle out, hawk, or, after shipment to this state, canvass, by going from house to house or from place to place, and sell or offer for sale, by sample, to users or consumers, clocks, agricultural implements, tools or machinery, stoves or ranges, wagons, buggies, carriages, surreys, or other similar vehicles, washing machines, churns, pictures, enlarged pictures, or picture frames, lightning rods, spectacles, jewelry, sewing machines, books or musical instruments, within this state, without previously obtaining a license therefor, as herein provided.
“No person, firm, or corporation, as principal or agent, shall engage in or conduct, as an itinerant vender, peddler, hawker, or traveling merchant, the business of peddling, selling, or bartering, or after shipment to this state, canvassing or selling by sample, clocks, agricultural implements, tools or machinery, stoves or ranges, wagons, buggies, carriages, surreys, or other similar vehicles, washing machines, or churns, pictures, enlarged pictures, or picture frames, sewing machines, books, lightning rods, spectacles, jewelry, or musical instruments, within this state, without previously obtaining a license therefor, as herein provided.”
In the complaint filed against the appellants it is alleged that they, “after shipment into the State of Utah of certain buggies and carriages, did then and there unlawfully and willfully engage in and conduct, as. itinerant venders, peddlers, hawkers, and traveling merchants, the business of peddling, selling, bartering, canvassing, and selling the same, by sample, without previously obtaining a license therefor.”
On appeal they urge that the enactment contravenes section 1, art. 8, Const. U. S., relating to. the power of Congress to regulate commerce among the several States, section 2, art. 4, providing that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States, and section 1 of the fourteenth amendment providing that no State shall make or enforce any law which abridges the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws, and section 24, art. 1 of the State Constitution which provides that all laws of a general nature shall be uniform in operation. It is, of course, conceded that if the statute gives a preference to property manufactured or produced within the State or makes a discrimination against nonresidents or against property manufactured or produced without the State, or otherwise interferes with interstate commerce, it is unconstitutional. It is well established that a tax upon the seller of goods is a tax upon the goods themselves. It is also well settled that State laws laying occupation, business, and privilege taxes contravene the federal Constitution in so far as they impose a tax on persons engaged in taking orders for goods by sample or otherwise to be filled from stocks not within the State at the time the sales are made. It is equally well settled that, where the goods are shipped into the State and stored in advance of the sales and the orders taken are filled therefrom, the business is not interstate, but local commerce, and therefore the business of agents soliciting orders for such goods is not protected by the provisions of the federal Con
The act in question makes it unlawful, without first obtaining a license, to peddle or hawk the goods enumerated in the statute, or to engage in or conduct as an itinerant vender, peddler, hawker, or traveling merchant the business of peddling, selling, or bartering any such goods. This part of the act applies to' all persons, regardless of their residence and to all of the enumerated articles, whether manufactured or produced within or without the State. To this extent the act does not appear to make any discrimination adversely to persons or property of other States, and does not, for that reason, affect or interfere with interstate commerce. The act further provides that, after shipment to this State, it shall be unlawful, without first obtaining 'a license, to canvass by going from house to house or from place to place, and sell or offer for sale by sample to users or consumers any of the enumerated articles, or to engage in or conduct, after shipment to this State, the business of canvassing or selling by sample any such goods. That is to say, after any of the enumerated articles are shipped into the State, it shall not be lawful, without first obtaining a license, to canvass or sell by sample any of them, though they have not yet been mingled with nor become a part of’ the common mass of property within the State, nor otherwise lost their character as articles of interstate commerce. The mere fact that they may have been shipped into the State is not alone conclusive that they have lost such character, for, as said by Mr. Justice Field, in the case of Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347 :
*265 “The commercial power continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character. That power protects it even after it has entered the state from any burdens imposed by reason of its foreign origin.”
Tbe effect of tbe legislation is to forbid, without license, the canvassing or selling by sample any of tbe goods specified in tbe statute and wbicb bave been shipped into this State, and permits, without license, canvassing and selling in such' manner the same kind of goods manufactured or produced within the State.
“A law,” says Mr. Justice Swayne, in the case of Machine Go. v. Gage, 100 XT. S. 678, 25 L. Ed. 754, “which requires a license to be taken out by peddlers to sell articles not produced in the state, and requires no such license with respect to those who sell in the same way articles which are produced in the state, is in conflict with the power of Congress to regulate commerce with foreign nations and among the several states.”
That portion of the act which requires a license to canvass or sell by sample goods shipped into the state, and permits, without a license, the canvassing or selling in such manner goods not shipped into the state, violates the commerce clause of the federal Constitution, and is therefore void. Such a conclusion was also reached by the Supreme Court of Washington in the case of Bacon v. Locke, 42 Wash. 215, 83 Pac. 721, upon a similar statute.
This portion of the statute is further an illegal regulation of commerce, in that it imposes a tax to canvass and sell to users and. consumers by sample goods shipped into the state, and permits sales in such manner to merchants and all persons not users and consumers without a license. In this connection it is again well said by the Supreme Court of the United States in the case of Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed. 719.
“It is true, in tbe present case, tbe tax is imposed only for selling to persons other than manufacturers and licensed merchants, but, if the state can tax for the privilege of selling to one class, it can for selling to another, or to all. In either case it is a restric-*266 tioa on the right to sell, and a Burden on lawful commerce between the citizens of two states. It is as much a burden upon commerce to tax for the privilege of selling to a minister as it is for that of selling to a merchant.”
We do not see wherein other portions of the statute contravene the commerce clause of the federal Constitution. The state has the undoubted right to classify occupations, and to impose different taxes upon different occupations, so long as there is no discrimination against citizens or property of other states. It is essential, however, to the constitutionality of such statutes that the tax apply equally to all persons of a given class and is uniform and equal. The right of the state to enact laws to regulate or restrict the sale of articles deemed injurious to health or morals of the community is also unquestioned. Avocations and employments pursued within the state, not directly connected with interstate commerce, or with some other employment or business exercised under authority of the Constitution and laws of the United States, and all property within the state mingled with and forming a part of the great mass of property therein, are subject to the taxing and police power of the state. The Legislature undoubtedly has the power to regulate the business of ped-. dling and hawking within its territory. The ordinary meaning of a peddler or hawker is an itinerant or traveling trader who carries goods about in order to- sell them, and who actually sells them to purchasers by delivering the goods at the time of the sale, in contradistinction to the trader who has goods to sell and sells them in a fixed place of business. Such sales and business are wholly an internal commerce, which the state has a right to regulate. It may well be conceded that frauds and cheats are likely to attend itinerant and irresponsible peddling from ’house to house or place to place, and that, under its police power, the state may. regulate such business by requiring peddlers and hawkers to- take out and pay for licenses. If the Legislature had regulated the business- of peddling and hawking, and had forbidden the carrying on of such business without first obtaining a license^ we think no fault could be found with such an enactment.
“In 1903 an act was passed by the Legislature of this state which undertook to prohibit the sale of vehicles, stoves, ranges, pianos, or other merchandise without license, and the license fee was fixed at $10 per day, but with the proviso that the act should not apply to any person selling any of said articles from his regularly maintained stock or established place of business, when such stock had been maintained in the county for a period of six months. This act was several times held discriminative and void by superior judges of the state of well-recognized ability, but did not apparently reach the Supreme Court; those decisions being generally acquiesced in. While it has been suggested by affidavit that complainants are carrying on business in violation of this law, it was not referred to in argument, and it may be assumed that counsel do not rely upon that point. In 1905 an act was passed to meet the objections to that of 1903. It provides that every person, firm, or corporation who peddles out after shipment to the state, canvasses, or sells by sample, etc., shall pay in advance an annual license tax of $200. This act was recently declared void by the state Supreme Court.*268 It is a matter of common notoriety tliat this legislation was enacted at the suggestion and for the benefit of local dealers. The amount fixed for license by the Legislature was intended to be prohibitive of competition by peddlers. Shortly after the decision holding the act of 1905 unconstitutional, we find the dealers who had‘attempted to put the peddlers out of business by legislation resorting to the very ingenious scheme which has been here disclosed. It is proposed now to accomplish by subterfuge that which the courts of the state have repeatedly held cannot be done directly.”
In the case of Robbins v. Shelby, 120 U. S. 489, 1 Sup. Ct. 592, 30 L. Ed. 694, it was also said:
“This kind of taxation is usually imposed at the instance and solicitation of domestic dealers as a means of protecting them from foreign competition. And in many cases there may be some reason in their desire for such protection. But this shows in a still stronger light the unconstitutionality of the tax.”
While ordinarily we are not permitted to inquire into the motive of the Legislature, yet as said by the court in the case of Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 931:
“It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are in reality passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is' apparent that the public health or welfare bears but the most remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose. (Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 35 L. Ed. 862.) The court looks beyond the mere letter of the law in such cases. (Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220.)”
We are well satisfied that the act has no such relation to the public health or morals as will sustain it as a police measure. Nor can it, because of its illegal discrimination as to