sels. A state statute making private corporations, domestic and foreign, responsible for the assessment and collection of taxes of bonds issued by them and held by residents of the state, and requiring a deduction of a state tax by the corporate officers in paying interest, is not void as a regulation of commerce.€7

70

the property involved may have come originally
from another state,69 or although a contract relating
to the business may have been made in another
state, or although the person or corporation in-
volved may also be engaged in interstate commerce,"1
or although the business, when carried on wholly
within the state, may involve deliveries outside the
state." In other words, where the property involved
is subject to a state property tax, the privilege of
engaging in business concerning such property may
be taxed. A nondiscriminating state license tax
imposed on business carried on within the state is
valid, although it may incidentally affect or relate
to interstate commerce,"
,75 and obviously, where the

72

74

[141] 3. License and Privilege Taxes-a. In General (1) Imposition by State or Municipality(a) When Valid. In the exercise of its general police power and its power to license occupations and businesses, a state or municipality may impose a license tax for the doing of local or domestic business within its territorial jurisdiction, although 950 [aff 167 N. Y. 617 mem, 60 NE | ceived the goods from the consignor. 1117 mem].

68

Stamp tax on transfers of stock in state by nonresidents see infra § 158. 66. See supra § 135.

67. Com. v. Delaware, etc., Canal Co., 150 Pa. 245, 24 A 599, 1 LRA 232; Com, v. New York, etc., R. Co., 150

Pa. 234, 24 A 609.

68. General power to grant license and impose tax therefor see Licenses (25 Cyc 593 et seq].

Regulatory power of municipality over occupations and businesses see Municipal Corporations [28 Cyc 720]. 69. U. S.-Browning v. Waycross, 233 U. S. 16, 22, 34 SCt 578, 58 L. ed. 828 [aff 11 Ga. A. 46, 74 SE 564, and dist Dozier v. Alabama, 218 U. S. 124, 36 SCt 649, 54 L. ed. 965, 28 LRANS 264 and note: Rearick v. Pennsylvania, 203 U. S. 507, 27 SCt 159, 51 L. ed 295; Caldwell v. North Carolina, US. 622, 23 SCt 229, 47 L. ed. 136] (where the court, in upholding & municipal occupational tax on perchs engaged in putting up or erecting lightning rods within the l'mits of a municipality, said: "We are of the opinion that the court below was right in holding that the business of erecting lightning rods under the circumstances disclosed, was within the regulating power of the State

and not the

subject of interstate Commerce for the following reasons: (a) Because the affixing of lightning rods to houses, was the carrying on of a business of a strictly local character, peculiarly within the exclusive cause, besides, such business Control of state authority. (b) Be wholly separate from interstate commerce, involved no question of the

was

Under defendant's contract with the
consignor he had a salary and
shared in the profits, he paying all
freights and expenses of the busi-
ness. The liability of the consignor
was limited to the acts of defendant
in furnishing the goods on orders
taken by him. It was held that de-
fendant was either an independent
dealer or a partner residing and do-
ing business in the state, and was
not engaged in interstate commerce,
but was liable to the occupation tax.
Camp v. State, 42 Tex. Cr. 499, 61
SW 401.

between the station and any part of the city, is subject to taxation on such business, it not being interstate commerce, nor necessarily connected therewith, but it being an independent local service, preliminary or subsequent to interstate transportation, and performed wholly within a state. New York v. Knight, 192 U. S. 21, 24 SCt 202, 48 L. ed. 325 [aff 67 App. Div. 398, 73 NYS 790 (aff 171 N. Ÿ. 354, 64 NE 152)]. (2) So, too, the imposing of wharfage fees by a city on a river which is the boundary between two states is not an interferwith interstate commerce. Keckevoet v. Dubuque, 158 Iowa 631, 138 NW 540. (3) A license tax on a toll bridge situated wholly within the state is valid, although the upper deck of the bridge is used by a railroad for the carriage of interstate trains. Southern R. Co. v. Mitchell, 139 Ala. 629, 37 S 85. And see Bridges § 31.

ence
(2) A tax on a merchant
on the total amount of his purchases
in or out of the state has been up-
held. State v. Stevenson, 109 N. C.
730, 14 SE 385, 26 AmSR 595; State
v. French, 109 N. C. 722, 14 SE 383,
26 AmSR 590. (3) A state license
tax on those engaged in the business
of packing oysters is valid, although
it applies to these packing oysters
caught in, and shipped from, another
140, 42 A 941.
Applegarth v. State, 89 Md.
(4) In upholding a
Mississippi statute of this character,
the court, relying to a large extent
plained the statute and gave the rea-
on Applegarth v. State, supra, ex-
language:
sons for its validity in the following
"The act of 1908 does not
contemplate that any tax shall be
imposed upon any person importing
or selling oysters in this state. Such
person is not prohibited by the act
from so doing. In other words, a

state.

party living in Alabama may himself
ship into this state as many oysters

as he desires and sell same, and, un-
less he localizes himself as a dealer
or canner of oysters, no tax is im-

state commerce or of the right to
transaction, buttersteerned merely privilege for conducting that busi-

on him by the act. The tax
is imposed upon the person who buys
and cans them in this state as a
ness." Barataria Canning Co. V.

complete an

commerce

the doing of a local act after inter-
state commerce had completely ter- State, 101 Miss. 890, 898, 58 S 769.
minated"); American Harrow Co. v.
Shaffer, 68 Fed. 750 [app dism 166

Cal-Pick

v. Jordan, 169 Cal. 1.

70. Pacific R. Adv. Co. v. Conrad, 168 Cal. 91, 141 P 916 (holding that a

license tax on display advertising in

145 P 506, AnnCas1916C 1237 and in a municipality in the state is not

note.

Ky-Newport v. Wagner, 168 Ky.

railroad cars operating wholly with-
invalid as a burden on interstate
commerce because the corporation

72.

Liability of corporations engaged in interstate commerce to corporate franchise tax see infra § 153. U. S.-W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 21 SCt 423, 45 L. ed. 619 [aff 77 Minn. 223, 79 NW 962]; Osborne v. Mobile, 16 Wall. 479, 21 L. ed. 470. Mo.-American Mfg. Co. V. St. Louis, 238 Mo. 267, 142 SW 297. N. J.-Jersey City Bd. of Health v. Schwarz Bros. Co., 84 N. J. L. 500, 87 A 147 [aff 84 N. J. L. 735, 87 A 463, 86 N. J. L. 170, 90 A 1061].

Pa.-Rothermel v. Meyerle, 136 Pa. 250, 29 A 583, 9 LRA 366.

Tex.-Texas Co. v. Stephens, 100 Tex. 628, 103 SW 481.

[a] Grain in elevator.-The fact that grain stored in an elevator is to be shipped out of the state does not make a state statute requiring a license for conducting the business of such elevator in the state amount to a regulation of interstate commerce. W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 21 SCt 423, 45 L. ed. 619 [aff 77 Minn. 223. 79 NW 962].

[b] Coal.A state may tax a limited partnership engaged in mining and shipping coal to points outside the state, as the tax is on the priviof the association exercised wholly within the state and not on interstate commerce. Com. v. Sandy Lick Gas, etc., Co., 1 Dauph. Co. (Pa.) 314.

641, 182 SW 834, AnnCas1917A 962; displaying the advertising made the lege

32, 67 SW 45, 23 KyL 2284.

La-State

V.

Hammond Packing

71. U. S.-New York v. Knight, 192 U. S. 21, 24 SCt 202, 48 L. ed. 325

Co., 110 La. 180, 34 S 368, 98 AmSR [aff 67 App. Div. 398. 73 NYS 790

459.

Md-Applegarth v. State, 89 Md.

140, 42 A 941.

V.

(aff 171 N. Y. 354, 64 NE 152)].
Ala.-Southern R. Co. v. Mitchell,
139 Ala. 629, 37 S 85.

Miss-Barataria Canning Co.
State, 101 Miss. 890, 58 S 769.
Co., 45 Mont. 343, 354, 123 P 407 [cit 14 S 588, 39 AmSR 99, 25 LRA 120.
Mont-State v. Hammond Packing

D. C.-International Text-book Co.
v. District of Columbia, 35 App. 307.
Fla. Osborne v. State, 33 Fla. 162,

73. 74. Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 2 SCt 257, 27 L. ed. 419; In re Sydow, 4 Ariz. 207, 36 P 214; Singer Mfg. Co. v. Wright, 97 Ga. 114, 25 SE 249, 35 LRA 497; Com. v. Sandy Lick Gas, etc.. Co., 1 Dauph. Co. (Pa.) 314; Ponce Lighter Co. v. Ponce, 19 Porto Rico 725.

See supra §§ 128-140.

75. U. S.-U. S. Fidelity, etc., Co. v. Kentucky, 231 U. S. 394, 34 SCt 122, 58 L. ed. 283 [aff 139 Ky. 27, 129 SW 314] (holding that a license tax imposed on commercial agencies engaged in inquiring into, and reporting on, the credit and standing of persons engaged in business in the state does not interfere with interstate commerce so as to be invalid, because there is correspondence between local attorneys of the agency and subscribers to a book published

them, and before he could have re- city for the conveyance of passengers by the agency, which may perhaps

transaction in question is not interstate in character, or where it concerns property which is not a subject of commerce, an objection that the commerce clause of the United States constitution is infringed is without merit.76

[§ 142] (b) When Invalid. It follows from the rules already stated, namely, that a state may not regulate or burden interstate commerce," and that a taxation of interstate commerce is a prohibited form of regulation,78 that a state may not require

have an effect on the conduct of the subscribers about entering or not entering into transactions of interstate commerce).

Ky. Robertson v. Com., 101 Ky. 285, 40 SW 920, 19 KyL 442.

N. J.-Kolb v. Boonton, 64 N. J. L. 163, 44 A 873.

Porto Rico.-Ponce Lighter Co. v. Ponce, 19 Porto Rico 725.

Va.-Morgan v. Com., 98 Va. 812, 35 SE 448.

[a] Wholesale dealer.-"The mere fact that such license tax upon a wholesale dealer, who carries on his business within a state, may incidentally affect interstate commerce, would not deprive the State of the authority to levy it, nor would it destroy the validity of the ordinance. The ordinance complained of in the case at bar does not discriminate between the citizens or products of the states, but the tax provided by it is levied upon any citizen who engages in the business of a wholesale dealer in 'soft drinks' within the municipality." Newport v. Wagner, 168 Ky. 641, 647, 182 SW 834, AnnCas1917A 962.

[b] Fishing in state waters.-The license tax imposed by the act of March 3, 1898 (Acts [1897-1898]p 864), on residents of the state for the privilege of fishing in the waters belonging to the state, does not encroach on the authority of the United States to regulate commerce and navigation. Morgan v. Com., 98 Va. 812, 35 SE 448.

[c] Residing on boat in river.-A statute requiring payment of a license tax by a person residing on a boat, although it applies to the Ohio and Mississippi rivers, has been held not to be an interference with interstate commerce. Roberson v. Com., 101 Ky. 285, 40 SW 920, 19 KyL 442. 76. In re Wong Young Quy, 2 Fed. 624, 6 Sawy. 442 (holding that dead bodies are not subjects of commerce, and that therefore a statute requiring a permit for their removal does not violate the commerce clause of the constitution); State v. Preferred Tontine Mercantile Co., 184 Mo. 160, 82 SW 1075. 77. See supra § 11. 78.

See supra § 126.

N. Y.-Peo. v. Miller, 178 N. Y.
194, 70 NE 472; Peo. v. Wemple, 138
N. Y. 1, 33 NE 720, 19 LRA 694 [aff
65 Hun 252, 20 NYS 287, 29 AbbNČas
85].

Tenn.-Lightburne v. Shelby County
Taxing Dist., 4 Lea 219.

W. Va.-Sperry, etc., Co. v. Hill, 86
SE 748.

And see State v. Wells, 38 Nev.
505, 150 P 836, 841 [quot Cyc]
(dictum).

[a] Illustrations of invalid license taxes.-(1) A tax on the privilege of operating a ferry, where the ferry company is exclusively engaged in ferrying passengers across a river from one state to another, and the domicile and property of the ferry company is in another state, is a burden on interstate commerce, which a state may not impose. Helena-Glendale Steam Ferry Co. V. State, 101 Miss. 65, 57 S 362, AnnCas 1914B 682 and note. (2) Neither may a state impose a license tax on a ferry which is not engaged in ferrying in the strict sense of the word, but is simply a link in a continuous interstate transportation, as when it is engaged in transporting railroad cars across a river between two states. St. Clair County v. Interstate Land, etc., Transfer Co., 192 U. S. 454 24 SCt 300, 48 L. ed. 518 [aff 109 Fed. 891, and dist Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 2 SCt 257, 27 L. ed. 419]; New York v. New England Transfer Co., 18 F. Cas. No. 10,197, 14 Blatch. 159. (3) The states may not impose license taxes on a vessel engaged in interstate commerce and holding a federal coasting license. Harmon v. Chicago, 147 U. S. 396, 13 SCt 306, 37 L. ed. 216 [rev 140 Ill. 374, 29 NE 732, 26 NE 697 (aff 37 Ill. A. 496)]; Ex p. Eaglesfield, 180 Fed. 558; Booth V. Lloyd, 33 Fed. 593; Frere v. Von Schoeler, 47 La. Ann. 324, 16 S 808, 27 LRA 414; St. Louis v. Consolidated Coal Co., 158 Mo. 342, 59 SW 103, 81 AmSR 310, 51 LRA 850; Lightburne v. Shelby County Taxing Dist., 4 Lea (Tenn.) 219. Contra New Orleans v. Eclipse Tow Boat Co., 33 La. Ann. 647, 39 AmR 279 (holding that a license tax on the owners of towboats having a federal coasting license and running on the Mississippi river is valid, as it is not a regulation of commerce but a taxation of property). (4) The business of receiving and landing passengers and freight is incident to their transportation, and a tax on such receiving and landing is a tax on transportation and on commerce, interstate or foreign, involved in such transportation. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 SCt 826, 29 L. ed. 158; Peo. v. Wemple, 65 Hun (N. Y.) 252, 20 NYS 287, 29 Abb NCas 85 [aff 138 N. Y. 1, 33 NE 720. 19 LRA 694]. (5) Along this line, it is held that the business transacted in New York by the Pennsylvania Railroad Company in connection with its ferry and terminal facilities, and in collecting in that city money for transportation of passengers and freight, etc., constitutes interstate commerce, and cannot be taxed by the state of New York. Peo. V. Wemple, 138 N. Y. 1. 33 NE 720. 19 LRA 694 [aff 65 Hun 252, 20 NYS 287. 29 AbbNCas 85]. (6) A municiTel.pality cannot exact a local license from an unincorporated express com

79. U. S.-Barrett v. New York City, 232 U. S. 14, 34 SCt 203, 58 L. ed. 483 [rev 189 Fed. 268]; Norfolk, etc., R. Co. v. Pennsylvania, 136 U. S. 114, 10 SCt 958, 34 L. ed. 394; Fargo v. Stevens, 121 U. S. 230, 7 SCt 857, 30 L. ed. 888; Illinois Cent. R. Co. V. Mississippi R. Commn., 229 Fed. 248; George H. Lee Co. v. Webster, 190 Fed. 353; Simpson-Crawford Co. v. Atlantic Highlands, 158 Fed. 372; Clyde SS. Co. v. Charleston, 76 Fed. 46.

Colo.-Leonard v. Reed, 46 Colo. 307, 104 P 410, 133 AmSR 77.

Fla. Osborne v. State, 33 Fla. 162, 14 S 588, 39 AmSR 99, 25 LRA 120. Ga.-Williams V. Fears, 110 Ga. 584, 35 SE 699, 50 LRA 685.

La. Frere v. Von Schoeler, 47 La.
Ann. 324, 16 S 808. 27 LRA 414.
Miss.-Helena-Glendale Steam Ferry
Co. v. State, 101 Miss. 65, 57 S 362,
AnnCas1914B 682.

Mo.-Elsberry v. Bushman, 189 SW
1165; St. Louis v. Consolidated Coal
Co.. 158 Mo. 342. 59 SW 103, 81 Am
SR 310, 51 LRA 850.

Mont.-State v. Western Union Co., 43 Mont. 445, 117 P 93.

81

pany doing an interstate business, either as a condition precedent to its transacting business within the city or as an annual license fee. Barrett v. New York City, 232 U. S. 14, 34 SCt 203, 58 L. ed. 483 [rev 189 Fed. 268].

[b] General statute making no exception of interstate business. "A state statute exacting of one engaged in interstate commerce and governmental business a license for the privilege of doing business, in general terms and without expressly exempting from its terms interstate and governmental business, and which has not been construed to do so by the court of last resort of the state of its enactment, is to be construed as exacting a license for engaging in all business, including interstate commerce and governmental. business, as to persons or corporations so engaged, and void as to them." Illinois Cent. R. Co. v. Mississippi R. Commn., 229 Fed. 248, 255.

80. Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015; State v. Schofield, 136 La. 702, 67 S 557; In re Wilson, 10 N. M. 32, 60 P 73, 48 LRA 417; State v. Goetze, 43 W. Va. 495. 27 SE 225, 64 AmSR 871. And see Adams Fish Market v. Sterrett, 106 Tex. 562, 172 SW 1109 (where, although the court did not so construe the statute in question, it held that. if a statute should be construed as requiring the amount of a license tax for handling fish and oysters to be computed on the quantity of fish and oysters purchased without the state, the tax would constitute a burden on interstate commerce and would consequently be invalid).

The rule

[a] Cigarettes.-(1) stated in the text has been applied to the sale of cigarettes. In re Minor, 69 Fed. 233; State v. Goetze, 43 W. Va. 495, 27 SE 225, 64 AmSR 871. (2) But in one case it was held that, when the cigarettes were exposed for sale, they became a part of the mass of property of the state, so as to allow a license fee to be exacted of the person engaged in selling them. In re May, 82 Fed. 422.

[b] A state tax on auction sales is invalid when applied to goods sold by the auctioneer for the importer, in the original packages. Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed.

1015.

81. U. S.-Tiernan v. Rinker, 102 U. S. 123, 26 L. ed. 103; Ward v. Maryland, 12 Wall. 418, 20 L. ed. 449 [rev 31 Md. 279, 1 AmR 501; Ex p. Hanson, 28 Fed. 127; Ex p. Thornton, 12 Fed. 538, 4 Hughes 220.

Colo.-Ames v. Peo., 25 Colo. 508, 55 P 725.

Ky. Com. v. Read Phosphate Co., 113 Ky. 32, 67 SW 45. 23 KyL 2284. And see Newport v. Wagner, 168 Ky. 641, 182 SW 834, AnnCas1917A 962 (dictum).

Mo.-State v. North, 27 Mo. 464.
Oh-Arnold v. Yanders, 56 Oh. St.
417, 47 NE 50, 60 AmSR 753.
Pa.-Danville v. Leiberman, 4 Pa.
Dist. 475, 16 Pa. Co. 394.

Wyo.-State v. Willingham, 9 Wyo. 290, 62 P 797, 87 AmSR 948, 52 LRA 198.

[a] Examples of discrimination. (1) A state may not fix a penalty for selling goods without a license, excepting goods manufactured in the state (Ames v. Peo., 25 Colo. 508. 55 P 725). (2) or excepting merchants

citizens who ship property out of the state.82

[143] (c) Partial Validity or Operation. Where the intra-state and the interstate business of the person or corporation licensed are separable, the statute or ordinance and the tax imposed are valid and operative as to the intra-state business, and inoperative as to the interstate business.83

[144] (2) Imposition by Congress. The imposition of a license tax by congress is not such a regulation of commerce as relieves one who has paid it from the local police regulations of the state, but is the mere exercise of the taxing power.84

[145] b. Agents, Brokers, Peddlers, and Canvassers—(1) In General. In general, it is without

paying taxes in the state on the goods sold and traveling agents selling exclusively to regular state merchants (State v. Willingham, 9 Wyo. 250, 62 P 797, 87 AmSR 948, 52 LRA 198), (3) and may not impose a license tax on nonresidents doing transient retail business in the state (Danville v. Leiberman, 4 Pa. Dist. 475, 16 Pa. Co. 394). (4) A statute prohibiting any person from offering for sale within the state without a license goods made by convicts in other states is unconstitutional as a regulation of interstate commerce. Arnold v. Yanders, 56 Oh. St. 417, 47 NE 50, 60 AmSR 753.

[b] Discrimination held not to exist (1) P. L. (1908) p 615 § 4. which fixes an annual fee of three dollars for registering an automobile of less than thirty-horse power and a fee of five dollars for each automile of thirty-horse power and Dore, and which fixes a fee of one dlar for a license for the driver of the first, and two dollars for a license for the driver of the second, class of automobiles, imposed as a charge for the use of highways and to raise revenue to defray their cost and repair, is without discrimination against nonresidents, and, while applying to persons engaged in interstate commerce, is not unconstitutional, as contravening the commerce provision of the federal constitution. Kane v. State, 81 N. J. L. 594, 80 A 453, Ann Cas1912D 237. (2) A statute imposing a license tax on merchants is not invalid because it excepts from its operation manufacturers who sell their products at the place of manufacture. Com. v. Armour, 118 Va. 242, 87 SE 610. (3) It has been held that a state occupation tax on every dealer selling certain Sunday newspapers printed outside the state, or others "of like character," is not discriminating, as it applies to all persons selling any paper of a certain kind or class. Preston v. Finley, 72 Fed. 850.

82. Adams v. Mississippi Lumber Co., 84 Miss. 23, 36 S 68.

83. Singer Sewing Mach. Co. v. Brickell, 233 U. S. 304, 34 SCt 493, 58 L. ed. 974; U. S. Express Co. v. Hemmingway, 39 Fed. 60; Osborne v. State, 33 Fla. 162, 14 S 588, 39 Am SR 99, 25 LRA 120; State v. Schofield, 136 La. 702, 67 S 557: State v. Northern Express Co., 80 Wash. 309. 141 P 757, 76 Wash. 636, 136 P 1160.

84. Plumley v. Massachusetts, 155 U. S. 461, 15 SCt 154, 39 L. ed. 223; Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204. 14 SCt 1087, 38 L. ed. 962; Pervear v. Massachusetts, 5 Wall. (U. S.) 475, 18 L. ed. 608; License Tax Cases, 5 Wall. (U. S.) 462, 18 L. ed. 497; Mobile Bay Pilotage Comrs. v. Cuba, 28 Ala. 185.

85. Negotiation of sales as constituting interstate commerce see supra § 25.

Power to regulate hawkers and peddlers generally see Hawkers and Peddlers [21 Cyc 364 et seq].

86. Colo.-Wilcox v. Peo., 46 Colo. 382. 104 P 408.

Ga-Stone v. State, 117 Ga. 292, 43 SE 740.

Mich.-People v. Bunker, 128 Mich.

160, 87 NW 90.

86

the power of a state or municipality to exact license fees from agents engaged in interstate commerce or dealing in goods which are subjects of interstate commerce at the time of the imposition of the tax,87 or to discriminate, in its license tax legislation concerning sales by agents, against the citizens 88 products of other states or foreign countries.89

or the [§ 146] (2) Where Goods within State at Time of Sale. The state may require a license, and the payment of a tax therefor, from hawkers, peddlers, agents, and other persons selling goods which are within the state at the time of sale, although such licensees bring their goods in from another state or buy from or act for nonresident manufacturers.90

Nebr.-Menke v. State, 70 Nebr.
669, 97 NW 1020.
Tex.-Turner v. State, 41 Tex. Cr.
545, 55 SW 834.

[a] That the statute purports to
be an exercise of the police power
(1) does not make it lawful (Cren-
shaw v. Arkansas, 227 U. S. 389, 33
SCt 294, 57 L. ed. 565 [rev 95 Ark. |
464, 130 SW 569]), (2) as the police
power of a state cannot obstruct for-
eign or interstate commerce beyond
the necessity for its exercise (see
supra § 11).

87. French v. State, 42 Tex. Cr. 222, 58 SW 1015, 52 LRA 160.

88. Ex p. Hull, 153 Fed. 459; Ex p. Thornton, 12 Fed. 538, 4 Hughes 220; Smith v. Farr, 46 Colo. 364, 104 P 401; Ex p. Hawley, 22 S. D. 23, 115 NW 93, 15 LRANS 138.

[a] Instances of discrimination.(1) A state may not require a license fee to be paid only by nonresident peddlers and traveling merchants (Sears v. Warren County, 36 Ind. 267, 10 AmR 62; Radebaugh v. Plain City, 11 Oh. Dec. (Reprint) 613, 28 CincL Bul 107; Van Buren v. Downing, 41 Wis. 122 [foll Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347, overr Morrill v. State, 38 Wis. 428, 20 AmR 12]. Contra Mork v. Com., 6 Bush (Ky.) 397; Com. v. Smith, 6 Bush (Ky.) 303; Speer v. Com., 23 Gratt. (64 Va.) 935, 14 AmR 164, where a tax on those who sell by sample was imposed, excepting resident merchants, and it was held that "resident" applies to place of business, and so is not a violation of the privileges and immunities clause), (2) or by nonresidents not having a regular place of business in the state (Buffalo v. Reavey, 37 App. Div. 228, 55 NYS 792). (3) Neither may it deny to nonresidents, while granting to residents a peddler's license (Ward v. State, (Md.) 9 AmLRegNS 424; Ex p. Bliss, 63 N. H. 135; Sayre v. Phillips, 148 Pa. 482, 24 A 76, 33 AmSR 842, 16 LRA 49, a practical prohibition by a high license fee), (4) nor require nonresidents to pay more for such license than residents (Rothermel v. Zeigler, 7 Pa. Co. 505), (5) nor prohibit salesmen for nonresidents, excepting those who sell exclusively to regular merchants of the state. from doing business in the state (State v. Willingham, 9 Wyo. 290. 62 P 797. 87 AmSR 948. 52 LRA 198; Clements v. Casper, 4 Wyo. 494, 35 P 472), (6) nor except from payment of the license fee resident manufacturers who have paid their taxes (Com. v. Myer, 92 Va. 809, 23 SE 915, 31 LRA 379), (7) or persons who have paid an annual state tax on the goods sold (State v. Willingham, 9 Wyo. 290, 62 P 797, 87 AmSR 948, 52 LRA 198); (8) and a city may not except peddlers resident in the county (Marshalltown v. Blum, 58 Iowa 184, 12 NW 266, 43 AmR 116).

[b] It is not a discrimination to allow a rebate from the drummers' license tax to merchants paying a purchase tax on their state business as no discriminaton is made between residents of the state and nonresidents. State v. Long, 95 N. C. 582, 59 AmR 263.

89. In re Watson, 15 Fed. 511;

State v. McGinnis, 37 Ark. 362; Com. v. Caldwell, 190 Mass. 355, 76 NE 955, 112 AmSR 334, 5 AnnCas 879 and note; State v. Bayer, 34 Utah 257, 97 P 129, 19 LRANS 297.

[a] Examples of discrimination.(1) A state may not require a peddler's license to sell goods manufactured outside the state while requiring no license for domestic products. Webber v. Virginia, 103 U. S. 344, 26 L. ed. 565; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Vines v. State, 67 Ala. 73 [overr Seymour v. State, 51 Ala. 52]; Rodgers v. McCoy, 6 Dak. 238, 44 NW 990; State v. Furbush, 72 Me. 493; State v. Browning, 62 Mo. 591; State v. Pratt, 59 Vt. 590, 9 A 556; Ex p. Rollins, 80 Va. 314. (2) So a state may not demand a license from peddlers unless the goods are manufactured in a certain county (Marshalltown v. Blum, 58 Iowa 184, 12 NW 266, 43 AmR 116), (3) nor impose a license tax exempting persons soliciting orders for the manufacture of goods manufactured outside the state (Port Clinton v. Shafer, 5 Pa. Dist. 583), on the ground that this is a discrimination against goods which are not manufactured. (4) A city ordinance, providing that no person should sell or offer for sale any foreign-grown fruit from any vehicle in any public street or place of the city, unless under a written permit and payment of a license fee of twenty dollars, is a discrimination against foreign-grown fruit, and an attempt to regulate interstate commerce. State v. Bornstein, 107 Me. 260, 78 A 281.

90. U. S.-Singer Sewing Mach. Co. v. Brickell, 233 U. S. 304, 34 SCt 493, 58 L. ed. 974; Banker Bros. Co. v. Pennsylvania, 222 U. S. 210, 32 SCt 38, 56 L. ed. 168; Kehrer V. Stewart, 197 U. S. 60, 25 SCt 403, 49 L. ed. 663 [aff 117 Ga. 969, 44 SE 854]; Emert v. Missouri, 156 U. S. 296, 15 SCt 367, 39 L. ed. 430 [aff 103 Mo. 241, 15 SW 81, 23 AmSR 874, 11 LRA 219]; Howe Mach. Co. v. Gage, 100 U. S. 676, 25 L. ed. 754; Ex p. Crowder, 171 Fed. 250; Hynes v. Briggs, 41 Fed. 468. Contra In re Spain, 47 Fed. 208, 14 LRA 97 (holding that a license tax on peddlers is invalid as applied to residents of other states, and holding further. that the fact that the goods were in the state at the time of sale did not distinguish the case from Robbins v. Shelby County Taxing Dist., 120 U. S. 489, 7 SCt 592, 30 L. ed. 694).

D. C.-In re Wilson, 19 D. C. 341, 12 LRA 624 (defining "peddler" as a person who sells sample wares from house to house and delivers them at the time of sale).

Fla.-Hall v. State, 39 Fla. 637,

23 S 119.

Ga.-Chrystal v. Macon, 108 Ga. 27, 33 SE 810; Duncan v. State, 105 Ga. 457, 30 SE 755; L. B. Price Co. v. Atlanta, 105 Ga. 358, 31 SE 619.

Ill-Carrollton v. Bazzette, 159 Ill. 284, 42 NE 837, 31 LRA 522 (where a license tax on itinerant merchants was held good as not discriminating against goods manufactured out of the state and not applying to sales in the original package).

Ind.-South Bend v. Martin, 142

[147] (3) Where Goods without State at Time of Sale. Statutes and ordinances are unconstitutional, or at least inoperative, when they attempt to impose a tax on canvassers, solicitors, traveling salesmen, or other agents soliciting

Ind. 31, 41 NE 315; Sears v. Warren
County, 36 Ind. 267, 10 AmR 62.

Kan. In re Pringle, 67 Kan. 364, 72 P 864.

Ky.-Newport V. French Bros. Bauer Co., 169 Ky. 174, 183 SW 532; West v. Mt. Sterling, 65 SW 120, 23 KyL 1670; Rash v. Farley, 91 Ky. 344, 15 SW 862, 12 KyL 913, 34 AmSR 233.

La. Cole v. Randolph, 31 La. Ann. 535; The Stella Block v. Richland Parish, 26 La. Ann. 642.

Me.-State v. Montgomery, 94 Me. 192, 47 A 165, 80 AmSR 386.

Mass.-Com. v. Ober, 12 Cush. 493. Mich.-Peo. Smith, 147 Mich. 391, 110 NW 1102 Muskegon V. Zeeryp, 134 Mich. 181, 96 NW 502; Peo. v. Russell, 49 Mich. 617, 14 NW 568, 43 AmR 478.

Mo.-El Dorado Springs v. Highfili, 268 Mo. 501, 187 SW 68; Brookfield v. Kitchen, 163 Mo. 546, 63 SW 825; State v. Snoddy, 128 Mo. 523. 31 SW 36; State v. Smithson, 106 Mo. 149, 17 SW 221; Tracy v. State, 3 Mo. 3. N. M.-Territory v. Russell, 13 N. M. 558, 86 P 551.

N. C.-Smith v. Wilkins, 164 N. C. 135, 80 SE 168; State v. Caldwell, 127 N. C. 521, 37 SE 138; Wrought Iron Range Co. v. Carver, 118 N. C. 328, 24 SE 352; State v. Wessell, 109 N. C. 735, 14 SE 391; Wynne v. Wright, 18 N. C. 19; Cowles v. Brittain, 9 N. C. 204.

N. D.-In re Lipschitz, 14 N. D. 622, 95 NW 157.

V.

Or.-Ex p. Case, 135 P 881. Pa.-Com. v. Dunham, 191 Pa. 73, 43 A 84; Com. v. Harmel, 166 Pa. 89, 30 A 1036, 27 LRA 388; Com. Gardner, 133 Pa. 284, 19 A 550, 19 AmSR 645, 7 LRA 666; New Castle v. Cutler, 15 Pa. Super. 612; Com. v. Walker, 3 Pa. Dist. 534, 14 Pa. Co. 586.

Tenn.-Howe Mach. Co. v. Cage, 9 Baxt. 518 [aff 100 U. S. 676, 25 L. ed. 754].

an

Tex-Shad v. State, 70 Tex. Cr. 10, 155 SW 524 (holding that agent is subject to the tax prescribed when he sells goods in the state, although the goods were not bought outright by him but were consigned to, and sold by, him); In re Butin, 28 Tex. A. 304, 13 SW 10.

Va.-Com. v. Myer, 92 Va. 809, 23 SE 915, 31 LRA 379.

W. Va.-State v. Richards, 32 W. Va. 348, 9 SE 245, 3 LRA 705 and note.

[a] "A citizen of another state, who brings goods from such state into this state, and sells and delivers them as a peddler does, is liable to the same license as a citizen of this state who engages in peddling. The requirement of license for engaging in peddling and the imposition of the license tax is an exercise of the police power of the state, and is not a restraint or burden or tax upon interstate commerce, unless there is some discrimination made against one, because of his being a citizen of another state or because of the foreign_origin of his goods.” Newport v. French Bros. Bauer Co., 169 Ky. 174, 184, 183 SW 532.

[b] The theory of the court in upholding a state occupation tax, is stated in one case as follows: "The defendant's occupation was offering for sale and selling sewing machines, by going from place to place. There is nothing in the case to show that he ever offered for sale any machine that he did not have with him at the time. . The only business or commerce in which he was engaged was internal and domestic; and the only goods in which

orders for nonresident principals, the goods being without the state at the time of sale and the contract of sale being accepted or approved in the state of the principal."1 Provided the goods

he was dealing had become part of
the mass of property within the
State." Emert v. Missouri, 156 U. S.
296, 311, 15 SCt 367, 39 L. ed. 430
[aff 103 Mo. 241, 15 SW 81, 23 AmSR
874, 11 LRA 219].

[c] For example (1) a foreign
manufacturer made buggies and
shipped them into the state in orig-
inal packages, some of which con-
tained buggies complete, others con-
taining parts thereof. The buggies
were then put together by the manu-
facturer's agent and peddled by him
throughout the state. When a buyer
desired a vehicle not in stock the
agent sent the order to the manufac-
turer who shipped to the buyer. The
transaction was held not to consti-
tute interstate commerce, so as to re-
lieve such agent from the payment of
occupation taxes. Saulsbury v. State,
43 Tex. Cr. 90, 63 SW 568, 96 AmSR
837. (2) Likewise, where a corpora-
tion sends goods in large quantities
to stores or storehouses in another
state. where its agents carry the
goods about the country in small
quantities selling and delivering them
to customers, these agents are
not engaged in interstate commerce.
Singer Sewing Mach. Co. v. Brickell,
233 U. S. 304, 34 SCt 493, 58 L. ed.
974; American Harrow Co. v. Shaffer,
68 Fed. 750 [app dism 166 U. S. 718,
17 SCt 991, 41 L. ed. 1187]. Contra
In re Tyerman, 48 Fed. 167; In re
Nichols, 48 Fed. 164. (3) In one
case, incorporation in state property
was held to have taken place where
goods were sold by the manufacturer,
a nonresident, to a resident whole-
sale dealer and then repurchased
from him by the manufacturer and
sent directly to an agent of the manu-
facturer who opened the original
packages and peddled the contents,
the sale to the wholesale dealer be-
ing an advertising scheme. In re
Wilson, 19 D. C. 341, 12 LRA 624.

91. U. S.-Davis v. Com., 236 U. S. 697, 35 SCt 479, 59 L. ed. 795 [rev 113 Va. 562, 75 SE 1135]; Crenshaw v. Arkansas, 227 U. S. 389, 401, 33 SCt 294, 57 L. ed. 565 [rev 95 Ark. 464, 130 SW 569, and foll Rogers v. Arkansas, 227 U. S. 401, 33 SCt 298, 57 L. ed. 569 (rev 102 Ark. 314, 144 SW 211)] (where the court, in conclusion, said: "Here, as the facts show, the sample ranges carried about from place to place are not sold. Orders are taken and transmitted to the manufacturer in another State for ranges to be delivered in fulfillment of such orders, which are in fact shipped in interstate commerce and delivered to the persons who ordered them. Business of this character, as well settled by the decisions of this court, constitutes interstate commerce, and the privilege of doing it cannot be taxed by the State"); Dozier v. Alabama, 218 U. S. 124, 30 SCt 649, 54 L. ed. 965, 28 LRANS 264 [rev 154 Ala. 83, 46 S 9, 129 AmSR 51]; Rearick v. Pennsylvania, 203 U. S. 507, 27 SCt 159, 51 L. ed. 295 [rev 26 Pa. Super. 384] (where the goods were always in distinct packages, corresponding to the several orders, and the customer had the right to refuse the goods if not equal to samples); Norfolk, etc., R. Co. v. Sims, 191 U. S. 441, 24 SCt 151, 48 L. ed. 254 [rev 130 N. C. 556, 41 SE 673]; Brennan v. Titusville, 153 U. S. 289, 14 SCt 829, 38 L. ed. 719 [rev 143 Pa. 642, 22 A 893, 24 AmSR 580, 14 LRA 100]; Stoutenburgh v. Hennick, 129 U. S. 141, 9 SCt 256, 32 L. ed. 637 (applying to the District of Columbia); Asher v. Texas, 128 U. S. 129, 9 SCt 1, 32 L. ed. 368 [rev 23 Tex. A. 662, 5 SW 91, 59 AmR 783]; Leloup v.

Mobile Port, 127 U. S. 640, 8 SCt
1380, 32 L. ed. 311; Robbins v. Shelby
County Taxing Dist., 120 U. S. 489.
7 SCt 592, 30 L. ed. 694 [rev 13 Lea
(Tenn.) 303]; Clark v. Atlantic City,
180 Fed. 598; In re Bergen, 115 Fed.
339; Ex p. Green, 114 Fed. 959; In
re Tinsman, 95 Fed. 648; Ex p. Loeb,
72 Fed. 657; Ex p. Hough, 69 Fed.
330; In re Mitchell, 62 Fed. 576;
Louisiana v. Lagarde, 60 Fed. 186;
In re Tyerman, 48 Fed. 167; In re
Nichols, 48 Fed. 164; In re Houston,
47 Fed. 539, 14 LRA 719; In re White,
43 Fed. 913, 11 LRA 284; In re Kim-
mel, 41 Fed. 775; Ex p. Stockton, 33
Fed. 95. Contra Ex p. Hanson, 28
Fed. 127; In re Rudolph, 2 Fed. 65
6 Sawy. 295 (where a license require-
ment of every traveling merchant
was held constitutional on
ground that there was no discrimina-
tion shown).

the

Ala.-Crum v. Prattville, 155 Ala. 154, 46 S 750; Ex p. Murray, 93 Ala. 78, 8 S 868; State v. Agee, 83 Ala. 110, 3 S 856; Ineichen v. Anniston, 10 Ala. A. 605, 65 S 710; Miller v. State, 7 Ala. A. 183, 62 S 307; Clark v. State, 4 Ala. A. 202, 59 S 236. Colo.-Wilcox v. Peo., 46 Colo. 382, 104 P 408.

D. C.-In re Hennick, 16 D. C. 489. Ga. Stone v. State, 117 Ga. 292, 43 SE 740; Wrought Iron Range Co. v. Johnson, 84 Ga. 754, 11 SE 233, 8 LRA 273; Loh v. Macon, 8 Ga. A. 744, 70 SE 149.

Ida. In re Kinyon, 9 Ida. 642, 75 P 268, 2 AnnCas 699 and note.

Ill-Bloomington v. Bourland, 137 Ill. 534, 27 NE 692, 31 AmSR 382; Holzman v. Canton, 180 Ill. A. 641.

Ind.-Martin v. Rosedale, 130 Ind. 109, 29 NE 410; McLaughlin v. South Bend, 126 Ind. 471, 26 NE 185, 10 LRA 357.

Kan.-Kinsley v. Dyerly, 79 Kan. 1, 98 P 228, 19 LRANS 405; Ft. Scott v. Pelton, 39 Kan. 764, 18 P 954.

Ky-Com. v. Baldwin, 96 SW 914, 29 KyL 1074; Com. v. Hogan, etc., Co., 74 SW 737, 25 KyL 41,

La-State v. Schofield, 136 La. 702, 67 S 557; McClellan v. Pettigrew, 44 La. Ann. 356, 10 S 853; Simmons Hardware Co. v. McGuire, 39 La. Ann. 848, 2 S 592.

Mass.-Carstairs v. O'Donnell, 154 Mass. 357, 28 NE 271.

Mich.-Peo. v. Bunker, 128 Mich. 160, 87 NW 90.

Miss. Overton v. Vicksburg, 70 Miss. 558, 13 S 226; Richardson v. State, 11 S 934.

Nebr.-Menke v. State, 70 Nebr.

669, 97 NW 1020.

Nev.-Ex p. Stoddard, 35 Nev. 504, 131 P 133; Ex p. Rosenblatt, 19 Nev. 439, 14 P 298, 3 AmSR 901 [overr Ex p. Robinson, 12 Nev. 263, 28 AmR 794].

N. Y.-Peo. v. Ericson, 147 NYS 226. N. C.-Wrought Iron Range Co. v. Campen, 135 N. C. 506, 47 SE 658; State v. Bracco, 103 N. C. 349, 9 SE 404.

N. D.-State v. O'Connor, 5 N. D. 629, 67 NW 824.

Oh.-Haldy v. Tomoor-Haldy Co., 4 OhS&CP 118, 3 OhNP 43. Okl.-Baxter v. Thomas, 4 Okl. 605,

46 P 479.

Or. Spaulding v. McNary, 64 Or. 491, 130 P 391, 1128.

S. C.-Laurens v. Elmore, 55 S. C. 477, 33 SE 560, 45 LRA 249; State v. Coop. 52 S. C. 508, 30 SE 609, 41 LRA 501.

S. D.-State v. Delamater, 20 S. D. 23. 104 NW 537, 129 AmSR 907, 8 LRANS 774; State v. Rankin, 11 S. D. 144, 76 NW 299.

Tenn.-State v. Scott, 98 Tenn. 254, 39 SW 1, 36 LRA 461; Hurford v. State. 91 Tenn. 669, 20 SW 201.