the agent who received them, and each picture put into its frame, before delivery to the purchaser. The court, however, say: "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. The same could be said if the vendor himself, or by a personal agent, had carried and delivered the goods to the purchaser. That the articles were sent as freight by rail, and were received at the railroad station by an agent who delivered them to the respective purchasers, in nowise changes the character of the commerce as interstate.

Transactions between manufacturing companies in one State, through agents, with citizens of another, constitute a large part of interstate commerce; and for us to hold, with the court below, that the same articles, if sent by rail directly to the purchaser, are free from state taxation, but, if sent to an agent to deliver, are taxable through a license tax upon the agent, would evidently take a considerable portion of such traffic out of the salutary protection of the interstate commerce clause of the Constitution."

In Norfolk W. R. Co. v. Sims" a license tax imposed by a State upon all persons engaged in selling sewing machines in the State was held void as applied to the sale of machines shipped into the State upon the written order of a customer under an ordinary C. O. D. consignment.'

78

77 191 U. S. 441; 24 Sup. Ct. Rep. 151; 48 L. ed. 254.

78 To the contention that because in a C. O. D. consignment the sale could not be said to be consummated until delivery, that is, that the sale was made in the State by the express company delivering the machine, which company thereby became liable to the tax, the court say: "The sewing machine was made and sold in another State, shipped to North Carolina in its original package for delivery to the consignee upon payment of its price. It had never become commingled with the general mass of property within the State. While technically the title of the machine may not have passed until the price

In Adams Express Co. v. Iowa the cases of Caldwell v. North Carolina and Norfolk W. R. Co. v. Sims are examined and approved.

In Rearick v. Pennsylvaniaso it was held that interstate commerce is unlawfully burdened by the exaction of a license fee from a person employed by a foreign corporation to solicit sales for goods which the company fills by shipping the goods to him for delivery and collecting the purchase price from the customer, who has the right to refuse the goods if not equal in quality to the sample, such goods being always shipped in distinct packages, corresponding to the several orders.81

In Ware v. Mobiles2 it was held that the business of taking orders on commission for the purchase and sale of grain and cotton for future delivery, and transmitting such orders is not interstate commerce, so as to be exempt from state taxation.83

was paid, the sale was actually made in Chicago; and the fact that the price was to be collected in North Carolina is too slender a thread upon which to hang an exception of the transaction from a rule which would otherwise declare the tax to be an interference with interstate commerce."

79 196 U. S. 147; 25 Sup. Ct. Rep. 185; 49 L. ed. 424.

80 203 U. S. 507; 27 Sup. Ct. Rep. 159; 51 L. ed. 295.

81 Except in the case of brooms which, after being marked and tagged, were for convenience of shipment, tied together into bundles of twelve or more. As to these brooms it was contended that the original bundle or package being broken before delivery the full authority of the State over them at once attached. To this Justice Holmes, who delivered the opinion of the court, said: "But the doctrine of the original packages concerns the right to sell, within the prohibiting or taxing State, goods coming into it from outside. When the goods have been sold before arrival the limitations that still may be found to the power of the State will be due, generally, at least, to other reasons, and we shall consider whether the limitations may not exist, irrespective of that doctrine, in some cases where there is no executed sale." These limitations are found in the doctrines laid down in Brennan v. Titusville and American Express Co. v. Iowa. "The brooms were specifically appropriated to specific contracts, in a practical, if not in a technical sense. Under such circumstances it is plain that, whatever might have been the title, the transport of the brooms for the purpose of fulfilling the contracts was protected commerce." The statement of the case is from the syllabus. 82 209 U. S. 405; 28 Sup. Ct. Rep. 526; 52 L. ed. 855.

83 After calling attention to cases like Paul v. Virginia and Hooper v. California in which it was held that contracts are not the subjects of interstate commerce simply because negotiated between citizens of different States, or

§ 331. Peddlers.

As has been before seen, when property which has been introduced into a State has become commingled with the other property of that State, it ceases to enjoy the protection of the Com

commerce.

.

by the agent of a company in another State, where the contract is to be completed and executed wholly within the borders of the State, even though such contracts may incidentally affect interstate trade, the court observe: "These eases are not in conflict with those in which it is held that the negotiation of sales of goods in a State by a person employed to solicit for them in another State, the goods to be shipped from the one State to the other is interstate In these cases goods in a foreign State are sold upon orders for the purpose of bringing them to the State which undertakes to tax them, and the transactions are held to be interstate commerce, because the subject matter of the dealing is goods to be shipped in interstate commerce; to be carried between States and delivered from vendor to purchaser by means of interstate carriage. But how stands the present case upon the facts stipulated? The plaintiffs in error are brokers who take orders and transmit them to other States for the purchase and sale of grain or cotton upon speculation. They are, in no just sense, common carriers of messages, as are the telegraph companies. For that part of the transactions, merely speculative and followed by no actual delivery, it cannot be fairly contended that such contracts are the subject of interstate commerce; and concerning such of the contracts for purchases for future delivery as result in actual delivery of the grain or cotton, the stipulated facts show that, when the orders transmitted are received in the foreign State, the property is bought in that State and there held for the purchaser. The transaction was thus closed by a contract completed and executed in the foreign State, although the orders were received from another State. When the delivery was upon a contract of sale made by the broker, the seller was at liberty to acquire the cotton in the market where the delivery was required or elsewhere. He did not contract to ship it from one State to the place of delivery in another State. And though it is stipulated that shipments were made from Alabama to the foreign State in some instances, that was not because of any contractual obligation to do so. neither class of contracts, for sale or purchase, was there necessarily any movement of commodities in interstate traffic because of the contracts made by the brokers. These contracts are not, therefore, the subject of interstate commerce any more than in the insurance cases, where the policies are ordered and delivered in another State than that of the residence and office of the company. The delivery, when one was made, was not because of any contract, obliging an interstate shipment, and the fact that the purchaser might thereafter transmit the subject matter of the purchase by means of interstate carriage did not make the contracts as made and executed the subjects of interstate commerce."

In

merce Clause. And thus it has been held that peddlers, as distinguished from drummers, that is, persons who carry with them the articles which they sell, or at least supply the articles sold from stocks of merchandise already in the State, may be required to pay a license fee, even though they deal exclusively with goods which have been imported from another State; provided, however, of course, that they are not discriminated against because of the fact that they sell goods brought in from outside the State.

85

In Machine Co. v. Gages and in Emert v. Missouri state laws imposing license fees upon peddlers were upheld as to persons selling exclusively sewing machines manufactured outside of the State and sent into the State to the peddlers to be disposed of by them as the agents of the manufacturers.

In Emert v. Missouri the court say: "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 of fered for sale any machine which 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. The only business and commerce in which he was engaged was internal and domestic; and, so far as appears, the only goods in which he was dealing had become part of the mass of property within the State. Both the occupation and the goods, therefore, were subject to the taxing power, and to the police power, of the State."

The court then goes on to point out that there was no discrimination against goods manufactured outside of the State, and that the statute in question was rather a police regulation to protect against fraud, than a revenue measure.

84 100 U. S. 676; 25 L. ed. 754.

85 156 U. S. 296; 15 Sup. Ct. Rep. 367; 39 L. ed. 430.

§ 332. State Taxation of Articles of Commerce.

In Brown v. Maryland,86 decided in 1827, it had been held that a state law requiring all importers of foreign goods, and others selling the same by wholesale to pay a license fee was repugnant to the Commerce Clause.87 A tax on the sale of an imported article is declared to be a tax on the article itself; and a tax on the importer a tax on the business of importing.

In Woodruff v. Parhamss the doctrine declared in Brown v. Maryland was declared applicable only to imports from foreign countries. As to these it was declared the States might not exercise their taxing powers until, by the breaking of the original package, or sale by the importer, they had become commingled with the general goods of the States. This limitation upon the taxing power of the States was deduced from the constitutional prohibition as to the laying of export or import duties.

As to goods brought into the State from other parts of the United States, however, it was held that this constitutional prohibition does not apply, the terms export and import duties being declared to relate to foreign commerce only. And as to the Commerce Clause it was held that so long as the articles brought in are not discriminated against, no interference with interstate commerce is caused by their taxation, even in their original packages and unsold in the hands of the original consignee.

It will thus be seen that though the States may not, without the permission of Congress, extend the authority of their police regulations over articles of interstate commerce so long as they remain unsold and in their original packages in the hands of their original consignees, the law is otherwise as regards the taxing power. The distinction in favor of the taxing power is, according to the argument of the court in Woodruff v. Parham drawn from the consequences that would follow from an adoption of a contrary position, and from the purpose of the Commerce Clause in the minds of the

86 12 Wh. 419; 6 L. ed. 678.

87 And also that it was repugnant to the clause prohibiting the States from levying duties on exports and imports.

83 8 Wall. 123; 19 L. ed. 382.