State v. . Plummer

Clakk, C. J. The transaction, which was made taxable by the statute, was not the shipment of the goods from Baltimore to the defendant here, nor was the burden borne by such transportation. The transaction that was made subject to the tax was the sale and delivery of these articles to purchasers after the bulk was broken. Had the goods been lost in transit, the title thereto was in the shipper and would not have passed to the purchasers until the defendant on his daily rounds delivered them to the several purchasers. This transaction was an intrastate matter between the defendant and the purchasers, and the immunity by reason of the Federal Constitution does not exist. There were no orders solicited for customers which were sent to the Baltimore house with the result that the Baltimore house shipped to the customers here, if approved by the yeast company, but it was the sending of the yeast by the Baltimore house to their agent, the defendant, upon his estimate of the amount which he could dispose of in his rounds next day by reason of his canvass for orders, and of the additional orders he calculated he might pick up in delivering the other orders. This is not like Robbins v. Taxing District, 120 U. S., 480, in which it was held that the business of offering for sale, or selling goods to be shipped by the vendor to the buyer in another State, would be clearly interstate commerce (S. v. Caldwell, 187 U. S., 622); but it is exactly like the case of S. v. French, 109 N. C., 722, and S. v. Wessell, ib., 735, in which the goods were bought in another State, shipped here in bulk, and then by the buyer was sold to his customers, or, as in this case, were shipped to the agent here of the vendors, and by him sold to the customers here and the proceeds remitted to the vendor. The sale by such buyer was a North Carolina business, ánd taxable. The distinction between the two is discussed in S. v. Caldwell, 127 N. C., 527, and such distinctions affirmed on writ of error (187 U. S., 622). *263 In S. v. French, 109 U. S., 722, it was beld that such a tax as that in the present case was not a property tax, but a license tax upon an intrastate business. The distinction is stated in that case, which, like the present one, came up from New Hanover. That case has been often cited and affirmed; and, among other cases in point, the whole matter has been admirably and fully discussed by Allen, J., in Smith v. Wilkins, 164 N. C., 147, citing Machine Co. v. Gage, 100 U. S., 675; May v. New Orleans, 178 U. S., 497; Austin v. Tenn., 179 U. S., 352, and Cook v. Marshall, 196 U. S., 269. It is held in Smith v. Wilkins, supra, that “"Where separate articles are shipped into this State in larger packages, they are not the subject of interstate commerce after the bulk has been broken here for distribution, and a peddler’s tax upon a person thus selling these separate articles which have in this manner been shipped to him from beyond the State is not an interference with the commerce clause of the Federal Constitution.” The whole subject has been fully discussed and the conclusion reached (upon which this opinion is based) in Sonneborne v. Keating, in the United States Supreme Court, opinion filed 11 June, 1923. There being no conflict in the evidence, and no question of intent to be drawn, but purely a question of law upon the evidence, if believed, there was no error in the instruction of the court to the jury: “If you believe the evidence, you will return a verdict of guilty; if you do not believe it, return a verdict of not guilty.” This was so held in S. v. Murphrey, ante, 113. No error.