would be but a repetition of the disorder which prevailed under the Articles of Confederation." 1

§ 141. Robbins v. Shelby Taxing District reaffirmed.

Subsequently, in a case from Texas also imposing a tax upon commercial travelers, the court was asked to reconsider the Robbins case. It had been contended by the Texas court, in its opinion, that the decision was contrary to sound principles of constitutional construction and in conflict with the cases formerly decided by the Supreme Court. But the latter tribunal adhered to its ruling, saying: 2

66 . Even if it were true that the decision referred to was not in harmony with some of the previous decisions, we had supposed that a later decision in conflict with prior decisions had the effect to overrule them, whether mentioned and commented on or not. And as to the constitutional principles involved, our views were quite fully and carefully, if not clearly and satisfactorily, expressed in the Robbins case."

§ 142. Supreme Court in Brennan v. Titusville.

The principle of the Robbins case was again applied in the case of the agent of a Chicago manufacturer, who

1 Chief Justice Waite and Justices Field and Gray dissented, saying that they could see no constitutional objection to.such a tax; that there was no discrimination and citizens of other States were taxed the same as if they were citizens of Tennessee. The State court had decided that any person who should sell by sample should pay the tax, and to that they agreed, and that it would be time enough to consider whether a non-resident can be taxed for merely soliciting orders without having samples, when such a case arose. In a later case, Corson v. Maryland, 120 U. S. 502, these dissenting judges concurred in the decision on the ground that the statute required the non-resident merchant desiring to sell by sample to pay for his license a sum to be ascertained by the amount of his stock in trade in the State where he resided and where he had his principal place of business; that is, the charge was measured by his capacity to do business all over the United States and without reference to the amount of the business done in Maryland.

2 Asher v. Texas, 128 U. S. 129.

traveled and solicited orders for picture frames, exhibiting samples. He was convicted under an ordinance of the city of Titusville, Pennsylvania, for violating the city ordinance requiring a license from all persons canvassing and soliciting orders for goods, wares and merchandise. The Supreme Court of Pennsylvania sustained the tax, but was reversed by the Supreme Court of the United States. The latter court said it was immaterial that the tax was only required for selling to persons other than manufacturers and licensed merchants, because, if the State could tax for the privilege of selling to one class, it could for selling to another or to all. In either case it was a restriction on the right to sell and on lawful commerce between the citizens of two States. The court was not precluded by the opinion of the Supreme Court of Pennsylvania, that the ordinance was enacted in the exercise of the police power.1

In this case the court distinguished Ficklen v. Shelby County, infra, § 143, saying, 1. c. p. 308:

"We only refer thus at length to that case to show the distinction between it and this case, and to notice that in the opinion was reaffirmed the proposition that no State can levy 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." 2

1 Brennan v. Titusville, 153 U. S. 289.

2 The effect of the decision in Robbins v. Shelby Taxing District, was to nullify the laws requiring licenses from drummers in a number of States. The decision was followed in the following State and United States Circuit Courts: Alabama: State v. Agee, 83 Ala. 110; Ex parte Murray, 93 Ala. 78; Arkansas: In re Rozelle, 57 Fed. Rep. 155; District of Columbia: In re Hennick, 5 Mackey, 489; Georgia: Wrought Iron Range Co. v. Johnson, 84 Ga. 754, the Georgia Supreme Court saying: "After the State has yielded to the Federal army, it can very well afford to yield to the Federal judiciary;" Illinois: City of Bloomington v. Bourland, 137

§ 143. Taxation of commercial brokers.

The taxing power of the State over persons and subjects within its jurisdiction is not limited, except where it involves necessarily and directly the taxation of interstate commerce, that is, taxation of sales or soliciting sales, on behalf of a non-resident principal.

Thus in another Tennessee case,1 the tax was levied upon commission merchants, who were known as commercial agents and merchandise brokers. They had no capital in their business and so, in accordance with the State statutes, took out a license for one year authorizing them to do any and all kinds of commission business. The tax was imposed on the gross yearly commissions during the year for which they were thus licensed. It happened that during the year 1887 all the sales negotiated by one of the parties, and most of those made by the other, were for non-resident principals. But it seems that their business was not confined to transactions for non-residents. A renewal of their licenses having been applied for, the application was denied because they made no return of sales and no payment of percentage on their commissions received. Thereupon a bill was filed to restrain any interference with their current business. The court affirmed the judgment of the Supreme

Ill. 534; Indiana: Martin v. Rosedale, 130 Ind. 108; Kansas: Ft. Scott v. Pelton, 39 Kans. 764; Louisiana: Simmons Hardware Co. v. Maguire, Sheriff, 39 La. Ann. 848; Michigan: People v. Bunker, 87 N. W. Rep. 90'; Minnesota: In re Kimmel, 41 Fed. Rep. 775; Mississippi: Overton v. Vicksburg, 70 Miss. 558; Nevada: Ex parte Rosenblatt, 19 Nev. 439; North Carolina: Ex parte Hough, 69 Fed. Rep. 330; also State v. Bracco, 103 N. C. 349; Oklahoma: Baxter v. Thomas, 4 Okla. 605; Pennsylvania: In re White, 43 Fed. Rep. 913; In re Nichols, 48 Fed. Rep. 164; In re Tyerman, 48 Fed. Rep. 167; Texas: Ex parte Stockton, 33 Fed. Rep. 95; Talbutt v. State, 39 Tex. Crim. Rep. 64; Virginia: Adkins v. Richmond, 98 Va. 91, and 47 L. R. A. 583. In Texas the State court at first declined to follow the Robbins case, see In re Asher, 23 Tex. App. 662, reversed in 128 U. S. 129, supra, § 141.

1 Ficklen v. Shelby County Taxing District, 145 U. S. 1.

Court of Tennessee denying the injunction, saying that the tax was not on the goods, nor on the proceeds of the goods, nor was it a tax on non-resident merchants, and that if it affected interstate commerce in any way, it was incidentally and so remotely as not to be a regulation of such commerce.1

§ 144. Supreme Court in Ficklen v. Shelby County Taxing District.

"No doubt can be entertained," said C. J. Fuller, who delivered the opinion, at page 21, "of the right of a State legislature to tax trades, professions and occupations, in the absence of inhibition in the State constitution in that regard; and where a resident citizen engages in general business subject to a particular tax the fact that the business done chances to consist, for the time being, wholly or partially in negotiating sales between resident and nonresident merchants, of goods situated in another State, does not necessarily involve the taxation of interstate commerce, forbidden by the Constitution.'

And he concluded as follows, p. 24:

"We agree with the Supreme Court of the State that the complainants have taken out licenses under the law in question to do a general commission business, and having given bond to report their commissions during the year, and to pay the required percentage thereon, could not, when they applied for similar licenses for the ensuing year, resort to the courts because the municipal authorities

1 See also State v. Wagener, 77 Minn. 483, where a statute requiring commission merchants selling agricultural produce on commission to take out a license and give bond for benefit of consignors was sustained, the court saying that the statute was obviously not intended to raise revenue, but to protect consignors of wheat and perishable farm produce from frauds so frequently practiced upon them. It was therefore an ordinary police regulation. See infra, § 153.

refused to issue such licenses without the payment of the stipulated tax. What position they would have occupied if they had not undertaken to do a general commission business, and had taken out no licenses therefor, but had simply transacted business for non-resident principals, is an entirely different question, which does not arise upon this record."

Justice Harlan dissented, concluding as follows, p. 28:"The result of the present decision is that while, under Robbins v. Shelby County Taxing District, 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. 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, 24 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."

It seems that in this case the complainants held themselves out as prepared to transact business upon commission for whoever employed them, whether resident or non-resident, and their claim of exemption rested upon the single fact that during that year their principals were non-residents. The case was distinguished from the Robbins case on the ground that there the tax was not upon Robbins, but upon the non-residents who employed him, while here the tax was upon the merchandise brokers themselves in respect to the general commission business which they

conducted. ·