Spaulding v. McNary

Mr. Justice Moore delivered the opinion of the court. It is maintained inter alia that, since it is admitted that the plaintiffs were and are citizens and residents of another state and engaged therein in business, and as a branch thereof consists in selling by agents, their manufactured products in Oregon, the license fee prescribed by the statute referred to is a tax, undertaken to be imposed in contravention of the third clause of Section 8 of Article I of the Constitution of the United States, to regulate commerce among the several states, and the enactment under consideration is therefore void as to plaintiffs and invades their property right, and, such being the case, an error was committed in sustaining the demurrer, and in not granting the equitable relief sought. The statute in question, as far as deemed involved herein, defines the word “peddler” according to the ordi — 495 — nary meaning of the term, except that an agent of another is included within the class. 15 Am. & Eng. Ency. Law (2 ed.) 291. The enactment further declares: “Every person who, for himself or as agent of another, goes from place to place or from house to house, selling or offering to sell for future delivery, by sample or catalog, at retail, to individual purchasers who are not dealers in the articles sold, any goods, or wares or merchandise.” Section 4961, L. O. L. “Any peddler who shall, without having first obtained a license so to do in the manner in this act provided, peddle any goods or wares or merchandise in any county of this State, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished,” etc. Section 4962, L. 0. L. “Every peddler, whether principal or agent, shall before commencing business in any county of the State, make application in writing under oath, to the county treasurer for the county in which he proposes to make sales for a county license. * * He shall also at the same time make a special deposit of money with the county treasurer aforesaid, equal to the amount of license fee which he shall pay to the county treasurer, which license fee shall be as follows: (1) Peddler on foot, $25. (2) Peddler with one horse and a wagon, $100. (3) Peddler with two horses and wagon, $150. (4) Peddler with any other conveyance, $300.” Section 4963, L. O. L. The second definition of the word “peddler” as hereinbefore quoted is criticised by plaintiffs’ counsel as not applicable to a commercial traveler who, like the agents of their clients, go from place to place exhibiting samples or cuts of manufactured goods, wares, or merchandise, for which orders are taken. We do not think it necessary to enter into a discussion of the question of whether or not the business conducted by plaintiffs’ agents comes within the designation of interstate commerce. It has been intimated by some courts of last resort that a “peddler” is a person who, in going from house to house with goods for sale, resorts to disreputable methods in — 496 — seeking admission to homes in order to defraud customers, and for other nefarious purposes, and that, such being the case, it is proper for a state in the exercise of its police power to place such restrictions upon that business, though it may be interstate commerce, as will protect the public from imposition. 1, 2. The power of a state by proper legislation to protect the health, to promote the morals, and to prevent the introduction of any infected articles of trade that would necessarily injure property or affect persons is a matter of self-preservation, and such rights are not intended to be invaded under any clause of the Federal Constitution, for an injury to the welfare of the State is a detriment to the nation. If one or more persons engaged in any particular branch of business has recourse to dishonorable methods in order to make a sale of his goods, and for that reason all business of that class must be suspended under an exercise of the police power of a state, the result would necessarily be the interruption of all legitimate traffic; for it is safe to predict that in every branch of lawful commerce it will be found that some dishonest persons are engaged. It must be conceded that the sale of some kinds of goods and the transaction of some classes of business are in themselves, regardless of the persons connected therewith, so inherently harmful as to violate every sense of propriety and modesty, and in such cases the State rightfully may and necessarily ought immediately to put a stop to the flagitious traffic. Within the category thus condemned the sale of carriages cannot be included, and though there may be found one or more agents soliciting sales of buggies whose lives and conduct are not governed by the strictest rules of probity, the business in which they are engaged is not essentially unlawful, and therefore not subject to an exercise of the police power. 3. So far as disclosed by the complaint herein, the material averments of which are admitted by the demur — 497 — rer, it appears that when a written order for the purchase of a carriage is secured, the requisition is sent to Grinnell, Iowa, where, if the plaintiff’s agent who has charge of this branch of the business finds the proposed buyer is financially responsible, he ships into Oregon the desired vehicle, which is delivered by another agent, thereby transferring the property and the title to the purchaser. By this manner of conducting the plaintiffs’ business the goods, wares, and merchandise are in fact sold in Grinnell, Iowa, and do not, when shipped into this State for delivery become a part of the general mass of property in Oregon, so as to exempt such vehicles from the provision of the Federal Constitution, to which reference has been made. 4. The rule is well established that if the threatened enforcement by prosecuting officers of a void statute will affect the property rights of a party, injunction will lie to prevent the menace from being carried into effect; and that the conduct of such officers, in the case indicated, are their personal acts in which the State is not involved. Dunn v. University of Oregon, 9 Or. 357; Salem Mills Co. v. Lord, 42 Or. 82 (69 Pac. 1033: 70 Pac. 832) ; Sandys v. Williams, 46 Or. 327 (80 Pac. 642) ; Hall v. Dunn, 52 Or. 475 (97 Pac. 811: 25 L. R. A. [N. S.] 193) ; Portland Fish Co. v. Benson, 56 Or. 147 (108 Pac. 122); Kellaher v. City of Portland, 57 Or. 575 (110 Pac. 492: 112 Pac. 1076); Spaulding v. Evenson (C. C.) 149 Fed. 913; Spaulding v. Evenson (C. C.) 150 Fed. 517 (82 C. C. A. 263: 9 L. R. A. [N. S.] 904). 5. The remaining inquiry is whether or not the exacting of a license fee, as a condition precedent to the right to solicit orders that were to be filled by shipping goods from another state into this, amounts to a tax upon interstate commerce, and for that reason is void as to the plaintiffs. In the case of Robbins v. Shelby Taxing District, 120 U. S. 489 (7 Sup. Ct. 592: 30 L. Ed. 694), Sabine Rob — 498 — bins, a citizen and resident of Ohio, was engaged in the taxing district of Shelby County, Tennessee, in soliciting trade by the use of samples for the firm of Rose, Robbins & Co., doing business in, and all the members thereof being citizens and residents of, Cincinnati, Ohio. A statute of Tennessee required that all persons not having a regular licensed house in the taxing district, who offered for sale or sold goods, wares, or merchandise therein by sample, should be required to pay $10 per week or $25 per month, and no license should be issued for a longer period than three months. While soliciting trade for such firm and exhibiting samples-for the purpose of effecting sales, and without having paid the license, Robbins was arrested, tried, convicted, and fined, and the judgment was affirmed by the Supreme Court of the State of Tennessee, which held that the statute relating to such license was constitutional and valid. A writ of error was thereupon taken to the Supreme Court of the United States which, in reversing the judgment, held that interstate commerce could not be taxed at all by a state, even though the same amount of tax should-be laid on domestic commerce, or that which is carried on solely within the state. In 'that case, however, Mr. Chief Justice Waite, Mr. Justice Field, and Mr. Justice Gray dissented. In Le Loup v. Port of Mobile, 127 U. S. 640 (8 Sup. Ct. 1383: 32 L. Ed. 311), it was unanimously determined that, where a telegraph company which was doing business of transmitting messages between different states, and had accepted and was acting under the telegraph law passed by Congress July 24, 1866, no state within which .the company saw fit to establish an office could enforce upon it a license tax, or require it to take out a license tax, or require it to take out a license for the transaction of such business. In Asher v. Texas, 128 U. S. 129 (9 Sup. Ct. 1: 32 L. Ed. 368), it was ruled that a state law, exacting a license — 499 — tax to enable a person within the state to solicit orders and make sales there for a person residing within another state, was repugnant to the clause of the Constitution of the United States giving Congress power to regulate commerce among the several states, and that such statute was void. The rule thus announced has been followed by an unbroken line of decisions by the United States Supreme Court, and by most of the state courts of last resort, as well as by the federal courts. In re Kinyon, 9 Idaho, 642 (75 Pac. 268: 2 Ann. Cas. 699). See, however, the very interesting notes to the case of People v. Wemple, 27 Am. St. Rep. 542. In State v. Bayer, 34 Utah, 257 (97 Pac. 129: 19 L. R. A. [N. S.] 297, several agents of the plaintiffs herein were convicted of violating the provisions of a statute of Utah similar to our law with respect to licensing solicitors, and in reversing the judgment it was held that the enactment contravened the commerce clause of the Federal Constitution. So, too, in Smith v. Farr, 46 Colo. 364 (104 Pac. 401), in passing upon the validity of a similar statute of Colorado, it was ruled that Congress possessed the sole power to regulate commerce between the several states, and hence interstate commerce should not be taxed by a state. We consider, therefore, that the statute under consideration in as far as it relates to the plaintiffs, is an attempt to exact a tax on interstate commerce, and for that reason the enactment is void as to them. As the facts involved appear to have been admitted, the decree should be reversed and one entered here granting the relief prayed for in the complaint, and it is so ordered. Reversed : Decree Rendered. Decided April 1, 1913. (130 Pac. 1128.)