goods in another State, without, in some way, obtaining orders therefor? Must he be compelled to send them at a venture, without knowing whether there is any demand for them? This may, undoubtedly, be safely done in regard to some products for which there is always a market and a demand, or where the course of trade has established a general and unlimited demand. A raiser of farm produce in New Jersey or Connecticut, or a manufacturer of leather or wooden ware, may, perhaps, safely take his goods to the city of New York and be sure of finding a stable and reliable market for them. But there are hundreds, perhaps thousands, of articles which no person would think of exporting to another State without first procuring an order for them."

The truth is, that, in numberless instances, the most feasible, if not the only practicable, way for the merchant or manufacturer to obtain orders in other States is to obtain them by personal application, either by himself, or by some one employed by him for that purpose; and in many branches of business he must necessarily exhibit samples for the purpose of determining the kind and quality of the goods he proposes to sell, or which the other party desires to purchase. But the right of taxation, if it exists at all, is not confined to selling by sample. It embraces every act of sale whether by word of mouth only, or by the exhibition of samples. If the right exists, any New York or Chicago merchant visiting New Orleans or Jacksonville, for pleasure or for his health, and casually taking an order for goods to be sent from his warehouse, could be made liable to pay a tax for so doing, or be convicted of a misdemeanor for not having taken out a license. The right to tax would apply equally as well to the principal as to his agent, and to a single act of sale as to a hundred acts."

§ 140. Interstate commerce cannot be taxed at all.

After denying that the exemption of interstate commerce would in any perceptible degree diminish the resources or just power of taxation of the State, the court proceeded at page 497:

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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 commerce, or that which is carried on solely within the State. This was decided in the case of the State Freight Tax, 15 Wall. 232. The negotiation of the sale 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 in 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."

The court added that it would not be difficult to show this tax to be discriminative against the merchants and manufacturers of other States; and that, if selling goods by sample and the employment of drummers injuriously affected the local interest, Congress, if applied to, would undoubtedly make such reasonable regulations as the case demanded, but Congress alone could do so; for it is obvious that such regulations should be based on a uniform system applicable to the whole country, and not left to the varied, discordant, or retaliatory enactments of forty different States. The confusion into which the commerce of the country would be thrown by being subject to State legislation on this subject,

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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

"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.