State ex rel. Woodward v. Chapman

The opinion of the Court was delivered by Manning, J. These cases present the same question, and were argued and submitted together. The defendant in each case is an employee of Stauffer, Macready & Co. of New Orleans, and the object of t-lie suits is the collection of fifty dollars from each of the defendants for license tax as a travelling agent of that firm. The law imposing this tax reads: “ All travelling agents of this or other States or countries, offering any species of merchandise for sale, or selling the same, shall, if representing one house, firm or business, pay a license of fifty dollars per annum. If representing two houses, firms or business, shall pay a license of seventy-five dollars per annum.” Acts 1881, 2 Ex. Sess., p. [76] The proceedings were summary under Secs. 12 and 17 of that Act, and exception was made to them for unconstitutionality because the title of the Act does not express that mode of remedy as its object. The title is, “ an Act to levy, collect, and enforce payment of an annual license upon all' persons * * pursuing any * * vocation, calling or business, except,” etc. This covers any mode of enforcing payment whether summary or otherwise. The title of an Act can only indicate the general subject of the law by some concise expression, sufficient to indicate the chief matter, to which the details in the body of the Act are auxiliary. The design of the constitutional provision is to prevent the legislature uniting in one Act objects which have no necessary or natural connection with each other. It cannot be said that the imposition of a tax and the provision to enforce its payment have no necessary or natural connection. Municipality vs. Michoud, 8 Ann. 605; Stale vs. Waples, 12 Ann. 343; Slack vs, Ray, 26 Ann. 675; Shreveport vs. Jones, Idem, 708. The constitutionality of Secs. 12 and 13 is attacked on the ground that the license is not graduated, and that the latter section has a separate object, distinct from the other parts of the Act, viz: conferring on municipal and parochial bodies the right to. impose license taxes on any business or profession. This provision does not affect either of the defendants. No municipal or parochial tax is demanded of either of them. It will be time enough to consider the unconstitutionality of that section when a defendant, who is affected by it, shall present the question. If that section be null, the other parts of the Act are not thereby invalidated. Williams vs. Payson, 14 Ann. 7; Moore vs. New Orleans, 32 Ann. 726. The Constitution, Art. 206, does not prescribe any mode of graduating a license tax. On the contrary, it authorizes different modes in certain cases. Art. 217. The mode adoptod must necessarily be practicable. The defendant, as the record shews, does not keep books from which the amount of his sales can be ascertained, and the imposition of a specific sum—fifty dollars, if he represents one house, seventy-five dollars if he represents two or more—is the only practicable mode, and is a compliance with the constitutional requirement. Peddlers and transient dealers are commonly taxed a specific sum by the year because they are likely to escape any other. Cooley’s Taxation, 390. - The legality of the tax is contested on the ground that the defendant is a clerk, and therefore exempt, Const. Art. 206, and that his employers have paid all the licenses required of them, and cannot legally be compelled to pay another through him. These employers exhibit receipts for their licenses, and it is uncontested that the defendant is [77] employed, at a regular stated monthly salai'y. In each case the defendant has sold goods outside of New Orleans as travelling salesman for his firm. Sundry definitions of clerk are given us. The word, as designating an occupation or business, must be understood in its ordinary acceptation, and that is, not a writer or one performing clerical functions only, but a salesman in a store or shop as well. The Act in question uses it in this latter sense. The business of travelling agent is quite distinct from that of clerk. It has sprung up in comparatively recent times, and is one of the recognized needs of modern trade. The English call such person a commercial traveller, the French commis voyageur. Americans, with characteristic aptitude for nomenclature, call him a drummer. The defendant travels through the country, solicits orders, sells goods, by sample or otherwise, transmits the orders to his employers who fill them as he has agreed. If one were asked to say what sort of business was that of drummer, he would describe it in this, or other language of like import. The real question then is, not whether a clerk is eo nomine exempt from license tax, for of that there can be no doubt, but whether the tax on a drummer can be evaded by his calling himself clerk, and accepting a fixed salary instead of commissions on sales, or other varying compensation. It does not appear what is the usual mode of paying drummers, and we apprehend there is not an invariable mode. The business of clerk is not distinguishable from that of drummer by the manner of compensation. The counsel for the defendant argue that a firm might send letters out to accomplish the increase of trade which is done by an employee such as the defendant, and that he is only an “ animated letter.” A sufficient answer is that the legislature have imposed a license tax on these “ animated letters ” under the name of travelling agents. A firm, if it so please, can rely on correspondence alone for enlarging its business, but if it adopts this modern method of drumming as the more effective, the drummer becomes liable for the tax. It is his business that is taxed, and the business is so peculiar and distinctive that it cannot be mistaken for that of clerk. No one seeking employment from a firm as drummer would ever think of saying he wanted to be clerk, and vice versa. Every business man would understand instantly, if employment as a clerk was sought, that the applicant was not offering to travel and solicit orders, as the defendant does; and if he was employed as clerk, and his employers change him into a drummer, and he serves them as drummer, he becomes liable for the tax upon that occupation. The judgments are affirmed.