Foppiano v. Speed

Messrs.

The plaintiff in error was compelled to pay for a license to sell liquors while on a ferryboat at the city of Memphis, in the state of Tennessee, the ferryboat plying between ports in the states of Arkansas and Tennessee. The license was demanded by the clerk of the county court of Shelby county, by virtue of the following state statute:

'Liquor Dealers. ..

'Persons selling beer or any quantities of liquor on steamboats, flatboats, or any other vessel or water craft, or from railroad cars, shall pay a tax, each, in lieu of all other taxes, to be paid in any county they may elect, per annum, $200 dollars.'

He denied his liability to pay, because, as he averred, he was engaged in interstate commerce, and was not subject to be taxed by the state in such case. The taxing officers insisting, he paid the license for the past years 1901, 1902, 1903, and also for the then coming year of 1904, under protest, and to avoid the taking of his property under a distress warrant, and he then commenced these actions to recover the money so paid. They both involve the same question, one action being brought to recover for the back taxes paid, and the other for the taxes paid for the future, from January 1, 1904. Judgment went against him in the trial court, which was affirmed in the supreme court of the state. 113 Tenn. 167, 82 S. W. 222. The plaintiff brings the cases here by writs of error.

The record shows that Speed, the defendant in error, being clerk of the county court of Shelby county, Tennessee, undertook to assess the plaintiff in error, under the Tennessee statute, and the plaintiff in error denying his liability to pay any tax, the parties agreed upon the following facts for the purpose of having the question presented judicially and determined by the court, under the practice in Tennessee:

'That the West Memphis Packet Company is, and has been for more than fifteen years last past, a corporation duly created and existing under and in accordance with the laws of the state of Arkansas, located and having its situs at West Memphis, in the county of Crittenden, in the state of Arkansas, situated just opposite the lower end of the city of Memphis, across the Mississippi river, having power by its charter to buy of build and own one or more steamboats, barges, and flatboats, and other water craft, to be used in transporting freight and passengers on the Mississippi river, and the lakes, bayous, and other navigable streams connecting therewith, within the limits of the state of Arkansas; and during the time the said James Foppiano was engaged in selling beer and liquors, as herein stated, the said West Memphis Packet Company was in the exercise of its corporate powers and privileges, and engaged continuously in commerce between the city of Memphis, in the state of Tennessee, and points contiguous thereto, situated along the Arkansas shore of the Mississippi river.

'For more than fifteen years the West Memphis Packet Company has been operating a ferry across the Mississippi river from Hopefield Point, in Crittenden county, Arkansas, and other points adjacent thereto in the state of Arkansas, to and from the state of Tennessee, under licenses to operate such ferry, regularly granted and issued to it, the West Memphis Packet Company, by the county court of Crittenden county, Arkansas, the tribunal authorized by the Constitution and laws of the state of Arkansas to grant and issue such licenses, and under such licenses the West Memphis Packet Company had been making landings regularly, at its dock, at the wharf in the city of Memphis, on the Mississippi river, and there receiving and discharging freight and passengers transported or to be transported by means of such ferry along and across the Mississippi river. It had made but one landing regularly in the course of such business in the state of Tennessee, and two or more in the state of Arkansas.

'For more than four years last past the West Memphis Packet Company has used and employed the steamboat Chas. H. Organ as its regular ferryboat in carrying on the ferry aforesaid, under its said licenses, and such steamboat had made stated regular trips during all that time, between Memphis and the points aforesaid, in the state of Arkansas, constituting such ferry landings.

'The steamboat Chas. H. Organ was owned by the West Memphis Packet Company, and was duly enrolled and licensed as a steam vessel, to navigate the Mississippi river and its tributaries, under the laws of the United States regulating the coasting trade, and for other purposes, in the custom house at Memphis,-Memphis being the nearest port of the United States to the residence of the West Memphis Packet Company, and the home port of the said steamboat for each of the said years 1901, 1902, and 1903, and before that time.

'Ever since the West Memphis Packet Company began the keeping and maintaining of a ferry across the Mississippi river, as before stated, a bar has been, and was, during the years 1901, 1902, and 1903, kept and maintained on the steamboat it used and operated for that purpose, by some individual to whom it rented the privilege of keeping such bar, and carrying on at the same the sale of beer and liquors, by retail, to persons transported, or to be transported, or upon the said steamboat.

'During the years 1901, 1902, and 1903, James Foppiano was the lessee of the West Memphis Packet Company, and rented such bar on the steamboat Chas. H. Organ from it, and at such bar, during the said time, when the boat was in transit along or across the river, or when temporarily at the landings on the one side or the other of the river, he made sales by retail of beer and liquors to persons transported, or being transported, or to be transported, upon such steamboat, or who were thereon and applied to make purchases. And for the said years 1901, 1902, and 1903 he paid no taxes on such business, and took out no license therefor.

'For carrying on the said business for the said years 1901, 1902, and 1903, respectively, in the manner aforesaid, the defendant, Robert A. Speed, as clerk of the county court, insists that the said James Foppiano was required to and should have taken out a license for each year, and also was required to and should have paid the tax for each year, prescribed by the law levying such taxes, and the costs and charges therefor collected by him, as before stated, and not having done so, that he was authorized and required by law to make such collections, and is not liable to repay the same.

'The said James Foppiano denies that, under the facts, he was required by law to take out any licenses, or pay any taxes, for carrying on the said business for the said years 1901, 1902, and 1903, respectively, or either of them, in the manner aforesaid. He denies that the said Robert A. Speed was authorized or required by law to collect either the taxes collected by him in the manner aforesaid, or the costs or charges aforesaid, or any part thereof, and claims that all such sums have been illegally exacted of and collected from him and against his will, and that he is entitled to recover them back.'

-William M. Randolph, Wassell Randolph, and George Randolph for plaintiff in error.

[Argument of Counsel from pages 505-513 intentionally omitted]

Mr. Charles T. Cates, Jr., for defendant in error.

Statement by Mr. Justice Peckham:

[Argument of Counsel from pages 513-516 intentionally omitted] Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: