Norfolk & Western Railway Co. v. Sims

after making the foregoing statement,delivered the opinion of the court!

To the ordinary mind it seems a somewhat startling proposi-: tion that a manufacturing corporation, located and doing its main business in a distant city, having no manufactory in North Carolina, no stock in trade, no place for the sale of its goods there, and no agent authorized to sell them, can' be compelled to take out a license required of all those “engaged in the business of selling,” from the mere fact that it had done what hundreds of others, were doing daily — sent a single mar-chine there upon a written order of a customer and under an ordinary C. O. D. ■ consignment. If this may be done, the revenues of every State may be largely increased by adopting a similar system, since a large part of the business of retail shops in the principal cities is done by orders received, filled and the goods delivered in the same way. Of course, it is impossible to estimate the number of business houses in other States which are. accustomed to collect their accounts in this manner.

If this were the law it would also follow that the consignor of every cargo of- wheat .sent to New York for export under a ’ bill of lading, accompanied by a draft for the payment of the money in the usual method, might be compelled to take out a license in the State of New York as a dealer in produce, notwithstanding that all the real business was done in Chicago or North Dakota.

So, too, what the State may do directly it may authorize its municipalities to do, and if, under legislative sanction,- each of the large towns in the State of North Carolina saw fit to adopt

While it may be entirely true that the property in'the thing sold does not pass under a C. O. D. consignment until delivery of the goods and payment to the carrier, and hence it may be said that the sale is not completed until then, yet as matter of fact the bargain is made and the contract of sale completed as such-, when the order is received in Chicago, and the machine shipped in pursuance thereof.

A sale really consists of 'two separate and distinct elements: first, a contract of sale, which is completed when the offer is made and accepted; and, second, a delivery of the property which may precede, be accompanied by, or follow the- payment of the price, as- may have been- agreed upon between the parties. The substance of the sale is the agreement to sell and its acceptance. That possession shall be retained until payment of the price-may or may not have been a part of the original bargain, but in substance it is a mere method-of col-' lection, and we have never understood that a license could be imposed upon this transaction, except in. connection with’the prior agreement to sell, although in certain cases arising under the police power it has been held that the sale is not complete until delivery, and sometimes not until payment. Were it not for the opinion of the Supreme Court of North Carolina, we should.have said that the words “engaged in the business of selling the same within the State ” had reference to the word “selling” in its popular and ordinary sense,,of selling from a stock on hand or upon a special order to a manufacturer, and not to a mere method of collecting the money; but, however this may be, it is evident the state - courts could not' give it a construction which would operate as an interference with interstate commerce, and that upon this question the opinion of this court is controlling. -

The cases relied upon by the State dp not support its contention. In Machine Co. v. Gage, 100 U. S. 676 , a Connecticut

The case most earnestly pressed upon attention, howéver, is that of O’Neil v. Vermont, 144 U. S. 323 . This was a prosecution before a justice of the peace for selling, furnishing, and giving away intoxicating liquors. The defendant was a dealer in liquors at Whitehall, New York, and was in the habit of receiving at his store orders for liquor from Vermont, accompanied by a jug to contain the liquor; and the liquors, as in this case, were sent under a C. O. D. consignment.

It was held by this court that, as the only question considered by the Supreme Court in its opinion was whether the liquor was sold by O’Neil at Rutland, or at Whitehall, and the court arrived at the conclusion that the completed sale was in Vermont, that this conclusion did not involve any Federal question, and the writ of error was dismissed. Mr. Justice Blatch-ford took express pains to say that ‘ ‘no point on the commerce clause of the Constitution of the Unified States was taken in the county court, ... or considered' by the Súpreme Court of Vermont.” The case was put by the Supreme Court of the •State solely upon its police power. “If,” said that court, “an express company or any other carrier or person, natural or corporate, has in possession within this State an article in itself dangerous to the community, or an article intended for unlawful or- criminal use within the State, it is a necessary incident of the police powers of- the State that such article should be-subject to seizure for the protection of the community.”

Upon the other hand, for the past seventy-five years and ever since the original case of Brown v. Maryland, 12 Wheat. 419 , we have uniformly held that States have no power to tax directly or by license upon the importer, goods imported from foreign .countries or other States, while in their original packages, or before they have become commingled with the general property of the State and lost their distinctive character as imports.' ' In that case a law of Maryland required importers to take out a license before they could be permitted to sell their imported goods. That was declared to be void not only as a tax upon imports, but as an infringement upon the power of Congress to .regulate commerce. The case is one of the most important ever decided by'this court, and Nas been, adhered to by-a uniform "series of decisions since that time.'

In Robbins v. Shelby Taxing District, 120 U. S. 489 , it was declared that a tax upon commercial .agents not having a business house in the State, was unconstitutional as a regulation of commerce when applied to soliciting the sale of goods on behalf óf individuals - or firms doing business in another State, Mr. Justice Bradley remarking, apropos of what was subsequently decided in O’Neil v. Vermont, “that the only way in which commerce between the States can be legitimately affected "by state laws, is when, by virtue of its police power, and its jurisdiction over .persons and-property within its limits, a State provides for the security of the lives, limbs, health and comfort of persons and protection of property;- or when it does those

The same rule was applied in Welton v. Missouri, 91 U. S. 275 , and Walling v. Michigan, 116 U. S. 446 , to a statute requiring the payment of a license from persons dealing in merchandise, not the growth, produce or manufacture of the State, and requiring no such license from persons selling goods grown, produced or manufactured within the State. In McCall v. California, 136 U. S. 104 , a license tax imposed upon the agent of a railroad between Chicago and New York soliciting business in San Francisco, was held to be void. To the same effect are Crutcher v. Kentucky, 141 U. S. 47 ; Brennan v. Titusville, 153 U. S. 289 , and Stockard v. Morgan, 185 U. S. 27 . ’Finally, in Caldwell v. North Carolina, 187 U. S. 622 , another of the same line of cases, it was held that a city ordinance imposing a license upon every person engaged in the business of selling or delivering picture frames, etc., was an interference with interstate commerce, so far as applied to picture frames made in other States and shipped to an agent in the State of North Carolina; and that the transaction was not taken out of the protection of the commerce clause by the fact that the agent placed the pictures in their proper frames, '‘and delivered them to the' persons ordering them. Most of the prior cases are noticed in this opinion.

Indeed, the cases upon this subject are almost too numerous •for citation,' and the one under consideration is clearly controlled. by them. The sewing machine was made and sold in another State, shipped to North Carolina in its original- pack

The judgment of the Supreme Court of North Carolina is therefore reversed and the case remanded to that court for further proceedings not inconsistent with this opinion.

Mr. Justice Holmes did not participate in the decision of this case.