Crenshaw v. Arkansas

deliyered the opinion of the court.

The plaintiffs in error were convicted under a .law. of the State.of Arkansas approved April 1, 1909 (Act 97, Acts of 1909, p. 292), undertaking to regulate the sale of lightning' rods, steel stove ranges, clocks, pumps, and vehicles in the several counties of the' State. The judgment of conviction was affirmed, 95 .Arkansas, 464, and the case is here upon questions arising under the Federal Constitution.

“Section 1. That hereafter before any person, either as owner, manufacturer or agent, shall travel over and through any County and peddle or sell any lightning rod, steel stove range, clock, pump, buggy, carriage or other .vehicle or either of.said articles, he shall procure a license as hereinafter provided from the County Clerk of such County, authorizing such person to conduct such business.

“Section 2. That before any person shall travel over or through any County and peddle or sell any of the articles mentioned above he shall pay into the County Treasury of such County the sum of Two Hundred ($200) Dollars, taking the receipt of the Treasurer therefor, which receipt shall state for what purpose the money was ' paid. The County Clerk of such County upon the presentation of such receipt shall take up the same and issue to such person a certificate or license, authorizing such person to travel over such County and sell such articles or article for a period of one year from the first day of January preceding the date of such license.

“Section 3. Any person who shall travel over or through any County in this State and peddle or sell, or offer to peddle or sell any of the above enumerated articles without first procuring the license herein provided for shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than two hundred ($200) dollars nor more than five hundred ($500) dollars.-

“Section 4. That any person who shall travel over or through any County in this State and peddle or sell any of the articles mentioned above, shall be deemed and held tó be a peddler, under the provisions of this Act.”

The case was considered upon an agreed statement of facts, of which the following is an abridgment:

The Range Company, a corporation organized under the laws of Missouri with its principal offices and factory

A carload, of ranges was thus shipped from St. Louis to Eldorado, Arkansas, for the purpose of filling orders-■previously secured by the soliciting agents or traveling salesmen.' Upon the arrival of the car at Eldorado the ranges were taken therefrom, loaded on-delivery wagons and delivered by the delivery men to purchasers in the precise shape,, form, condition and packages in which they were delivered to the common carrier at St. Louis.

It was agreed that Gannaway was a salesman of the Range Company and had exhibited sample ranges and solicited and taken orders and secured notes for them, and that Crenshaw acted as a delivery man and delivered ranges to parties in Union county, who had previously given orders to salesmen.

This law is attacked and the conviction of Crenshaw and Gannaway alleged to be unlawful because, among other reasons, the law imposes a direct burden upon interstate commerce, exclusively within Federal control, and therefore beyond the power of the State to regulate. Under the facts which we have stated and upon which the court below decided the case, we think the law applicable to the present situation is well settled by previous decisions of this court.

The leading case is Robbins v. Shelby County Taxing District, 120 U. S. 489 , in which it was undertaken in the

In Brennan v. Titusville, 153 U. S. 289 , an ordinance of the State of Pennsylvania was held invalid as imposing a tax on interstate commerce, where the tax was sought to be imposed upon a manufacturer of pictures residing in Chicago, having his factory arid place of business there, whose agents solicited orders in Pennsylvania and other States by going personally from house to house with samples of pictures and frames. Upon the receipt of the orders they were forwarded to Chicago, where the goods were made and whence they were shipped to the purchasers in Pennsylvania and elsewhere. This court reviewed the previous cases at length and, in the course of the discussion, said (p. 302) :

“Even if it be that we are concluded by the opinion of the Supreme Court of the State that this ordinance was

enacted in the exercise of the police power, we are still confronted with the difficult question as to how far an act held to be a police regulation, but which in fact affects interstate commerce, can be sustained.- It is undoubtedly true that there are many police regulations which do affect interstate commerce, but which have been and will be sustained as clearly within the power of the State; but we think it must be considered, in view of a long line of decisions, that it is settled that nothing which is a direct burden upon interstate commerce can be imposed by the State without the assent of Congress, and that the silence of Congress in respect to. any matter of interstate commerce is equivalent to. a declaration on its part that it should be absolutely free.”

In Caldwell v. North Carolina, 187 U. S. 622 , a taxing ordinance of the city of Greensboro was held invalid as an unlawful interference with interstate commerce, where a portrait company engaged in making pictures and frames in Chicago sold them upon orders solicited in North Carolina, shipping the pictures and frames in separate packages to its own agent, who placed the pictures in theii proper frames and delivered them to the persons ordering them. This was held to be a transaction in interstate commerce and beyond the taxing power of the State, and it was held to make no difference that the pictures and frames were shipped to the company itself at Greensboro, where the agent of the company received them from the railroad at its depot, canried them to his room in Greensboro, opened the packages, took out and assorted them and put them together and in this form delivered them to the purchasers in the city of Greensboro, who had previously ordered them. Of this feature of. the case, which had been held in the Supreme Court of North Carolina to differentiate the case from the former cases, this court said (p. 632):

;<Nor does the fact that these articles were not shipped

separately and directly to each individual purchaser, but were sent to an agent of the vendor at Greensboro, who delivered them to the purchasers, deprive the transaction of its character as interstate commerce. It was only that the vendor used two instead of one agency in the delivery. It would seem evident that, if the vendor' had sent the articles by an express company, which should collect on delivery, such a mode of delivery would not have subjected the transaction to state taxation.”

In Rearick v. Pennsylvania, 203 U. S. 507 , an ordinance of the Borough of Sunbury in the State of Pennsylvania was held invalid which undertook to make it unlawful to solicit on the streets or by traveling from house to house, orders for the sale or delivery at retail, of foreign or domestic goods not of the parties’ own manufacture or production without a license, for which a fee was charged. It was undertaken in that case to apply the ordinance to Rearick, who solicited orders for brooms which were shipped from Columbus, Ohio, to fill the orders solicited, the brooms being tagged and marked. according to the number ordered, and tied together in bundles of about a dozen for shipment. It was held that the brooms were specifically appropriated .to the keeping of contracts the fulfilling of which required the transportation of the brooms for delivery in interstate commerce..

In Dozier v. Alabama, 218 U. S. 124 , where pictures were sold to be transported and delivered in interstate commerce and at the time they were ordered an option was taken fixing the specific price of a frame in which the picture, was to be delivered, both picture and frame being manufactured in another State and to remain the property of the vendor until sold, the sale of the frame, was held to be part of a transaction protected by the commerce clause of the Constitution, although the purchasers were not bound to take the frames unless they saw fit. Applying the previous cases,, this court held the license tax for

Nor does the fact that the law now in question was alleged to have been “passed in the exercise of the police power of the State make it lawful. In Railroad Co. v. Husen, 95 u. S. 465, 473, this court said that “the police power of a State cannot obstruct foreign commerce or interstate commerce beyond the necessity for its exercise; and under color of it objects not within its scope cannot be secured at the expense of the protection afforded by the. Federal Constitution.” To the same effect, Walling v. Michigan, 116 U. S. 446 , 460; Leisy v. Hardin, 135 U. S. 100 , 108; Brennan v. Titusville, 153 U. S. 289 , 302, 303.

In the opinion delivered for the majority of the Supreme Court of- Arkansas, the law in. question was upheld, notwithstanding the decisions of this court, which were recognized, because of the distinguishing feature of the ordinance as a valid exercise, of the police power of the State in taxing the occupation of peddling, and to sustain that conclusion Emert v. Missouri, 156 U. S. 296 , was relied upon. In that case a tax upon peddlers within the State of Missouri by $ statute of the State by which peddlers of goods going from place to place in the State were required to take out a license, was sustained. The cases were fully considered by Mr. Justice Gray, who delivered the opinion of the court, and the right to tax peddlers from early times in England and America was stated, and á history of much of the legislation given. The law was sustained as against the contention that it .violated the interstate commerce clause of the Constitution, because it was shown that Emert, who was convicted, carried the machines with him in .a wagon, and upon mak

“The defendant’s occupation was offering for sale and selling sewing machines, by going from place to place in the State of Missouri, in -a wagon, without a license. There is nothing in the case to show that he ever offered for sale any machine that he did not have with him at the time. His dealings were neither accompanied nor followed by any transfer of goods, or of any order for their transfer, .from one State to another; and were neither interstate commerce in themselves, nor were they in any way directly connected with such commerce.”

In the Emert Case, therefore, there was no movement of goods in interstate commerce because of orders taken for their sale, but the specific articles carried about by the peddler, and none other, were sold and delivered by him. In the majority opinion of the Supreme Court of Arkansas the definition of hawkers and peddlers as understood at common law was recognized — as one who goes from house to house or place to place carrying his merchandise with him which he concurrently sells and delivers, 2 Bouvier, 642 — but it. was said that the legislature of Arkansas might define the word peddlers so as to include such as traveled from place to- place and took orders for goods from other States and that such persons, because of the statute declaring them so, were peddlers and liable, to be taxed under the lawful exercise of the police power of the State. We must look, however, to the substance, of things, not the names by which they are labelled, particularly in dealing with rights created and conserved by the Federal Constitution and finding their ultimate protection in the decisions of this court. At common law and under, the statutes which have been sustained concerning peddlers

It follows that the judgments of the Supreme Court of Arkansas must be reversed and the cases remanded to that court for further proceedings not inconsistent with this opinion.

Reversed.