Crump v. McCord

Fish, C. J. (After stating the foregoing facts.) 1. The court did not err in enjoining the collection of the license tax against those in Classes A and B, of the petition, as an illegal interference with interstate commerce, over which Congress alone has jurisdiction. The petition alleges facts to the effect that the plaintiffs in Classes A and B are engaged in interstate commerce, and could not be taxed by the State. The evidence on the trial of the case showed that the plaintiffs in classes A and B of the petition were paid a commission by their nonresident principals for goods previously sold and on accepted orders. In Kehrer v. Stewart, 117 Ga. 969 (44 S. E. 854), it was held: “A tax on the privilege of selling goods is, in effect, a tax on the goods themselves. . . One who in this State, as the agent of a principal residing in another State, takes orders of such principal for the purchase of goods held in such other State, and who, when the goods are shipped by the principal to him, receives them in this State and delivers them in the original packages to the customers from whom he obtained the orders, and upon delivery receives from them the price of the goods, is engaged in interstate commerce.” In delivering the opinion of the court, Simmons, C. J., said: “It is well established and sound law that where the burden of a tax falls on the thing which is the subject of [151] taxation, the tax is to be regarded as laid on the thing rather than; on the individual who is charged with the duty of paying it into the treasury. Brown v. Maryland, 12 Wheat. 419. A tax or charge for a license to sell goods is, in effect, a tax on the goods themselves. Welton v. Missouri, 91 U. S. 275. A sale, to a customer in this State, of goods which are in another State, to be delivered to a common carrier for shipment to him, is interstate commerce. Following the recent case of Caldwell v. North Carolina, 23 Sup. Ct. 229, this court has held that ‘ One who in this State, as the representative of a principal residing in another State, takes orders on such principal for the purchase of goods held in such other State, and who, when the goods are shipped by his principal to him, receives. them in this State, breaks the original packages in which they are contained, and distributes them among the customers from whom he obtained such orders, and upon delivery receives from them the price of the goods, is engaged in interstate commerce.’ Stone v. State, this term, 117 Ga. 292, 43 S. E. 740. Under these rulings, by which we are bound, that part of Nelson Morris & Company’s business which consisted in shipping goods to Atlanta to fill orders previously received, the goods being delivered in accordance with such orders, was interstate commerce. It was, therefore, not subject to taxation or interference by the State, and an act seeking to impose any tax upon such business would be unconstitutional and void. The occupation of the plaintiff in error as agent for the conduct of this part of the business is so closely and directly connected therewith that, in so far as the tax act seeks to tax him as such agent, the act is void.” And see Postal Tel. Co. v. Cordele, 139 Ga. 126 (76 S. E. 744, Ann. Cas. 1914A, 984). 2. The plaintiffs who are embraced within Class C of the petition filed a cross-bill of exceptions, complaining of the refusal of the court to enjoin the collection of the tax levied against them. The court did not err in such refusal. This branch of the case is controlled by the principle ruled in the case of Raley v. Richardson, ante. Judgment affirmed on loth main and cross-lill of exceptions. All the Justices concur, except Gilbert, J., absetit.