| Mo. | Oct 15, 1890
Plaintiff was prosecuted upon information before á justice of the peace, for following the business of a peddler without having a license therefor. The case was appealed to the circuit court of Montgomery county, where it was tried, defendant found guilty and a fine of $50 imposed upon him. From the judgment he has appealed to this court,- on the ground that a constitutional question is involved.
The case was submitted to the court upon the following agreed statement of facts:
“For the purpose of dispensing with evidence in the above-entitled cause, in the circuit court, it is agreed, by and between the parties to said cause, that the following are the facts in said case, and that said cause may be decided by the court on the following agreed statement, to-wit:
“ First. That, for more than five years last past, the Singer Manufacturing Company has been, and still is, a corporation, duly organized under the laws of the state of New Jersey, and a citizen of that state.
“ Second. That on and prior to the twenty-sixth day of June, 1889, E. S. Emért, defendant, was in the employ of said Singer Manufacturing Company on a salary for his services, and at said time, in pursuance of said employment, was engaged in going from place to place in said Montgomery county, Missouri, with a horse and wagon, soliciting orders for the sale of Singer*244 sewing machines, having with him in said wagon a certain new Singer sewing machine, which, on said day, he offered for sale to various persons, at different places in said county, and on said day the defendant did find a purchaser for said machine, and did sell and deliver the same to David Portuchek, in said county.
“ Third. That said Singer machine, in question, was manufactured by said Singer Manufacturing Company at its works in the state of New Jersey, and that said machine belonged to and was the property of said company, and that it was forwarded to this state by said company and delivered to defendant as its agent, for sale on its account, and said machine was sold on account of the said manufacturing company ; that said machine was of the value of $50, and the defendant at the time of said sale had no peddler’s license.”
The statute under which defendant was convicted is as follows : “Sec. 7211. Whoever shall deal in the selling of patents, patent rights, patent or other medicines, lightning rods, goods, wares or merchandise, except books, charts, maps and stationery, by going from place to .place, to sell the same, is declared to be a peddler.
“ Sec. 7212. No person shall deal as a peddler without a license; and no two or more 'persons shall deal under the same license, either as partners, agents or otherwise; ahd no peddler shall sell wines or spirituous liquors.”
Section 7217 fixes the license fee to be paid for peddling with horse and buggy at $20 for six months, for the use of the state.
Section 7218 fixes a penalty of $50 for dealing as a peddler with horse and wagon without license.
Defendant insists that this statute, as applied to him, under the statement of facts agreed to, is obnoxious to that provision of the federal constitution (sec. 1, art. 8) which delegates to congress the sole power to regulate commerce among the states.
By force of these decisions of the court having the highest'judicial authority over the subject, it is settled, that the sale of goods which are in another state at the time of the sale, for the purpose of introducing them into the state in which the regulation is made, is interstate commerce; that a tax on a sale of such goods, before they are brought into the state, is a tax on interstate commerce itself ; that the imposition of a license tax upon the person making such sale is, in its effect, a tax upon the goods themselves ; that a state cannot tax goods' beyond its jurisdiction. Hynes v. Briggs, 41 Fed. Rep. 469, citing Robbins v. Taxing District, supra; Brown v. Houston, 114 U.S. 622" court="SCOTUS" date_filed="1885-05-04" href="https://app.midpage.ai/document/brown-v-houston-91413?utm_source=webapp" opinion_id="91413">114 U. S. 622; Woodruff v. Parham, 8 Wall. 123" court="SCOTUS" date_filed="1869-11-18" href="https://app.midpage.ai/document/woodruff-v-parham-88075?utm_source=webapp" opinion_id="88075">8 Wall. 123; Cook v. Pennsylvania, 97 U.S. 566" court="SCOTUS" date_filed="1878-11-18" href="https://app.midpage.ai/document/cook-v-pennsylvania-89826?utm_source=webapp" opinion_id="89826">97 U. S. 566; Welton v. State, supra.
It has been equally well settled that as soon as goods are brought into a state, and have become a part of its general mass of property, they become taxable in the same manner as other similar property in the state.
The right of the state to require a license tax on certain avocations, and among them that of a peddler, is not questioned in this case, and has been recognized by the supreme court of the United States in many of the cases bearing on this question. Machine Co. v. Gage, supra. Whoever shall deal in selling goods, wares and merchandise, by going from place to place to sell the same, is declared to be a peddler by the statute. Sec. 7211.
It will be observed that the statute now makes no discrimination between the sale of the products of this and any other state, as was the case in Welton v. State, supra, and when the defendant was engaged in selling these machines the commercial power of the federal government did not extend over them on account of any discriminating legislation of the state by reason of their foreign character. The only question, then, is whether this property, in the sale of which defendant was engaged, had lost its distinctive character as an import and become subject to the taxing power of the state, or whether it continued under the protecting power of the federal government until sold and transferred.
The difficulty suggested by Chief Justice Marshall, of drawing the line of distinction between the restriction upon the power of the state imposed by the constitution and the acknowledged power of the state to tax persons and property, meets us here. After careful consideration of the decided cases and the principle involved, we have come to the conclusion that as soon as
The non-resident manufacturer and merchant voluntarily places his property under the protection of the laws of this state. Can it be unjust to require of him the same tribute that is required of his resident competitor in business? The framers of the constitution could never have intended to discriminate against any state, or the citizens thereof. Indeed, it is universally conceded and contended that this commerce clause of the constitution was designed to prevent discriminations and to encourage and foster free and unrestricted trade among the several states. All that can reasonably be required is, to accord to the non-resident rights equal to, but not above, those of the citizens ; that, with respect to commerce, state lines be obliterated and the citizens of the union stand upon the same footing, and have equal opportunities in their contests for trade and business.
We think the conclusion reached entirely consistent with the decisions of the supreme court of the United States, and directly borne out by some of them. The case of Machine Co. v. Cage, supra, we consider directly in point. The code of Tennessee provided that all peddlers of sewing machines, and selling by sample, should pay a tax of $10. The agent of the Home Machine Company, a corporation of Connecticut, was
In the dissenting opinion of Waite, C. J., in case of Robbins v. Taxing District, supra, he says : “I am unable to see any difference, in principle, between a tax on a seller by sample and a tax on a peddler, and, yet, I can hardly believe it would be contended that the provision of the same statute, now in question, which fixes a license fee, for all peddlers, in the district, would be held to be unconstitutional in its application to peddlers who came with their goods from another state, and expected to go back again.” United States Circuit Judge Caldwell of this circuit takes the same position in a case recently decided by him, in which he holds, that a foreign corporation, selling ranges, which have been previously shipped into the state, and there stored, cannot avoid the payment of the license required of stove-range agents under the laws of Arkansas, on the ground that it is engaged in interstate commerce. The effect of the decision in that case was that as soon as the ranges were stored for sale they became subject to the taxing powers of the state. Hynes v. Briggs, supra ; see, also, Ex parte Butin, 28 Tex. App. 304 ; State v. Richards, 32 W. Va. 348" court="W. Va." date_filed="1889-03-07" href="https://app.midpage.ai/document/state-v-richards-6593973?utm_source=webapp" opinion_id="6593973">32 W. Va. 348.
That the constitution only requires, and was only intended to enforce, free interchange of commodities between citizens of different states, without regard to state lines, and that citizens of one state should have the right to sell their products in any other state, without prejudice, or discrimination, we think clearly declared in Woodruff v. Parham, supra; Hinson v.
The supreme court of Pennsylvania in a recent case (Commonwealth v. Gardner, 19 A. 550" court="Schuylkill Cty. Ct. Qtr. Sess." date_filed="1890-03-17" href="https://app.midpage.ai/document/commonwealth-v-gardner-8518680?utm_source=webapp" opinion_id="8518680">19 Atl. Rep. 550), similar to the case at bar in nearly ever material fact, held that a state law, requiring a license of a peddler, though engaged in the sale of goods manufactured and owned by a citizen of another state, was not in contravention of the constitutional provision, in respect to commerce among the states, but was simply a police regulation and under the exclusive control of the state, so long as it made no discrimination against citizens of other states. The argument used is very plausible, and would merit careful consideration, did we not put our decision on other grounds which we believe founded upon the best of reasons, supported by the highest authority, and in perfect accord with the spirit and intent of the constitution.
Holding then, as we do, that defendant was not exempt from the operation of the laws of the state regulating the license of peddlers, by reason of the goods sold being the property of a resident of another state the judgment is affirmed.