Ficklen v. Taxing District of Shelby County/Dissent Harlan

Mr. Justice HARLAN, dissenting.

It seems to me that the opinion and judgment in this case are not in harmony with numerous decisions of this court. I do not assume that the court intends to modify or overrule any of those cases, because no such purpose is expressed; and yet I feel sure that the present decision will be cited as having that effect.

In Robbins v. Taxing Dist., 120 U.S. 489, 496, 497, 7 Sup. Ct. Rep. 592, it was held that Tennessee could not require, even from its own people, a drummer's license for soliciting the sale of goods there on behalf of individuals or firms doing business in another state. This rule, the court said, 'will only prevent the levy of a tax, or the requirement of a license for making negotiations for the conduct of interstate commerce, and it may well be asked where the state gets authority for imposing burdens on that branch of business any more than for imposing a tax on the business of importing from foreign countries, or even on that of postmaster or United States marshal. The mere calling the business of a drummer a privilege cannot make it so. Can the state legislatute make it a Tennessee privilege to carry on the business of importing goods from foreign countries? If not, has it any better right to make it a state privilege to carry on interstate commerce? It seems to be forgotten, in argument, that the people of this country are citizens of the United States, as well as of the individual states, and that they have some rights under the constitution and laws of the former independent of the latter, and free from any interference or restraint from them.' Again: 'It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers, those of Tennessee and those of other states; that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic sommerce, or that which is carried on solely within the state. This was decided in the Case of State Freight Tax, 15 Wall. 232. The negotiation of sales of goods which are in another state for the purpose of introducing them into the state in which the negotiation is made is interstate commerce. A New Orleans merchant cannot be taxed there for ordering goods from London or New York, because in the one case it is an act of foreign, and in the other of interstate, commerce, both of which are subject to regulation by congress alone.' In Philadelphia & Southern S. S.C.o. v. Pennsylvania, 122 U.S. 326, 7 Sup. Ct. Rep. 1118, a tax imposed in Pennsylvania upon the gross receipts of a steamship company incorporated under the laws of that state, such gross receipts being derived from the transportation of persons and property by sea, between different states, and to and from foreign countries, was held to be a regulation of interstate and foreign commerce, and therefore unconstitutional.

In Leloup v. Port of Mobile, 127 U.S. 640, 648, 8 Sup. Ct. Rep. 1380, an ordinance of that port requiring a license tax from telegraph companies was held to be invalid in its application to a company, having a place of business in Mobile, and being engaged there in the occupation of transmitting messages from and to points in Alabama to and from points in other states. This court, overruling Osborne v. Mobile, 16 Wall. 479, said that 'no state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on; and the reason is that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to congress.'

In Asher v. Texas, 128 U.S. 129, 9 Sup. Ct. Rep. 1, a state law exacting a license tax to enable a person within the state to solicit orders and make sales there for a person residing in another state, was held to be repugnant to the commerce clause of the constitution.

In Stoutenburgh v. Hennick, 129 U.S. 141, 147, 9 Sup. Ct. Rep. 256, the question was whether an act passed in 1871 by the legislative assembly of the District of Columbia, requiring commercial agents, engaged in offering merchandise by sample, to take out and pay for a license, was invalid when applied to persons soliciting in the District the sale of goods on behalf of individuals or firms doing business outside of the District. Referring to the particular clause of the act upon which it was attempted to sustain the case, this court said: 'This provision was manifestly regarded as a regulation of a purely municipal character, as is perfectly obvious, upon the principle of noscitur a sociis, if the clause be taken as it should be, in connection with the other clauses and parts of that act. But it is indistinguishable from that held void in Robbins v. Taxing Dist. and Asher v. Texas, 128 U.S. 129, 9 Sup. Ct. Rep. 1, as being a regulation of interstate commerce, so far as applicable to persons soliciting, as Hennick was, the sale of goods on behalf of individuals or firms doing business outside of the District.'

In McCall v. Caiifornia, 136 U.S. 104, 10 Sup. Ct. Rep. 881, it was held that a license tax, imposed by an ordinance enacted by the board of supervisors of the city and county of San Francisco, upon an agent engaged at that city, in the business of soliciting travel for a line of railroad between Chicago and New York, was invalid under the commerce clause of the constitution.

In Norfolk & W. R. Co. v. Pennsylvania, 136 U.S. 114, 10 sup. Ct. Rep. 958, a tax imposed by Pennsylvania upon a railroad company incorporated in another state, and whose line extended from Philadelphia into other states, for the privilege of keeping an office in Pennsylvania, to be used by its officers, stockholders, agents, and employes, was a tax upon commerce among the states, and therefore void.

In Crutcher v. Kentucky, 141 U.S. 47, 11 Sup. Ct. Rep. 851, the court adjudged to be void an act of the legislature of Kentucky, so far as it forbade foreign express companies from carrying on business between points in that state and points in other states, without first obtaining a license from the state.

The principles announced in these cases if fairly applied to the present case, ought, in my judgment, to have led to a conclusion different from that reached by the court. Ficklen took out a license as merchandise broker, and gave bond to make a return of the gross commissions earned by him. His commissions in 1887 were wholly derived from interstate business; that is, from mere orders taken in tennessee for goods in other states, to be shipped into that state, when the orders were forwarded and filled. He was denied a license for 1888 unless he first paid 2 1/2 per cent. on his gross commissions. And the court holds that it was consistent with the constitution of the United States for the local authorities of the taxing district of Shelby county to make it a condition precedent of Ficklen's right to a license for 1888 that he should pay the required per cent. of the gross commissions earned by him in 1887 in interstate business. This is a very clever device to enable the taxing district of Shelby county to sustain its government by taxation upon interstate commerce. If the ordinance in question had, in express terms, made the granting of a license as merchandise broker depend upon the payment by the applicant of a given per cent. upon his earnings in the previous year in interstate business, the court, I apprehend, would not have hesitated to pronounce it unconstitutional. But it seems that if the local authorities are discreet enough not to indicate in the ordinances under which they act their purpose to tax interstate business, they may successfully evade a constitutional provision designed to relieve commerce among the states from direct local burdens. The bond which Ficklen gave should not, in my opinion, be construed as embracing his commissions earned in business upon which no tax can be constitutionally imposed by a state.

The result of the present decision is that while, under Robbins v. Taxing Dist., a license tax may not be imposed in Tennessee upon drummers for soliciting there the sale of goods to be brought from other states; while, under Leloup v. Port of Mobile, a local license tax cannot be imposed in respect to telegrams between points in different states; and while, under Stoutenburgh v. Hennick, commercial agents cannot be taxed in the District of Columbia for soliciting there the sale of goods to be brought into the District from one of the states,-the taxing district of Shelby County may require, as a condition of granting a license as merchandise broker, that the applicant shall pay a license fee, and, in addition, 2 1/2 per cent. upon the gross commissions received, not only in the business transacted by him that is wholly domestic, but in that which is wholly interstate.

For these reasons I am constrained to dissent from the opinion and judgment of the court in this case.