State v. Byles

Interstate Com-merce — Itinerant Vendor's Act — Constitutionality. 1. Where a citizen and resident of another state conducts a business in this state involving sales by residents of another state to residents of this state of vehicles manufactured in the other state, and the delivery thereof by shipment and transportation from such other state to this state, upon orders solicited for future delivery, he is engaged in interstate commerce. 2. The statute known as the “Itinerant Vendor’s Act” (Comp. Stat. 1910, §§ 2844-2850) defining the term “itinerant vendor” for the purposes of the act as including any person, either principal or agent, who engages in an itinerant or transient business in this state, either in one locality or in traveling about the state from place to place selling manufactured goods, wares, or merchandise, and providing that it shall not apply to commercial agents or travelers selling to merchants in the usual course of business, or to persons selling books, papers or school supplies, or to the selling of produce, vegetables, dressed meats or farm products, when sold by the grower or producer, and declaring it unlawful for any person to be engaged in the business of itinerant vendor as defined by the statute unless duly licensed as. such in accordance with the provisions of the act, is unconstitutional, because in violation of the provision of Section 8 of Article I of the Constitution of the United States vesting in Congress the power to regulate commerce among the several states. 3. The said “Itinerant Vendor's Act” is also within the inhibition of Section 10 of Article I of the Constitution of the United States providing that no state shall, without the consent of Congress, lay any imposts or duties upon imports or exports except what may be absolutely necessary for executing its inspection laws, in so far as the said act applies to sales by agents in this state of goods manufactured in a foreign state; there being no provision in the act for inspection, and the sole and only effect of the law being to lay a burden or duty upon goods manufactured in and imported from a sister state into this state.

Reserved QUESTIONS from the District Court, Sheridan County; HoN. Carroll H. Parmelee, Judge. The case having been submitted to the District Court upon an agreed statement of facts, and a motion by the defendant for judgment and dismissal, upon the ground of the alleged unconstitutionality of the statute under which the case was brought and prosecuted, the • constitutional questions thus raised were reserved for the decision of the Supreme Court. The material facts are stated in the opinion. The earlier statute of 1907 contained a clause specifically declaring that the act shuold not apply to sales of goods in original packages as permitted by the laws of the United States applicable to interstate commerce. When the present law was enacted in 1909, the clause relating to the exemption of interstate commerce transactions of this character was omitted. The Legislature may have thereby intended that such transactions should thereafter be covered by the statute, or the beneficiaries of the statute may have found that many of their own sources of supply were being interfered with, because agents selling to them did not always, or often, deal in original packages. At all events, the present statute discloses no intention to limit its application to intrastate transactions, and hence if the language of the statute is broad enough to cover strictly interstate commerce transactions the Legislative intent is apparent that the statute should extend to them. Whether the statute does, in effect, interfere with, or place a burden upon interstate commerce depends upon its effect and operation as applied to the present case. Upon the facts agreed to it is clear that the defendant was engaged'in interstate commerce. A large part of his transactions constituted interstate commerce in its most strict sense. That the statute interferes with and lays a burden upon such business is also clear. (Robbins v. Taxing List., 120 U. S. 489; Asher v. Texas, 128 U. S. 129; Leisy v. Iiardin, 135 U. S. 100; Brennan v. Titusville, 153 U. S. 287; Stockard v. Morgan, 185 U. S. 27; Caldwell v. North Carolina, 187 U. S. 622; Rearick v. Pennsylvania, 203 U. S. 507; Dozier v. Alabama, 218 U. S. 124; Ex parte Stodard, (Nev.) 131 Pac. 133; State v. Willingham, 9 Wyo. 290, 62 Pac. 797). A transaction involving a sale to an individual consumer is as much interstate commerce as a similar sale to a dealer or storekeeper. It is immaterial whether the purchaser desires and expects to use and consume the article himself, or whether he hopes and expects to sell the article to someone else, who, in turn, becomes the user or consumer. The use to which the article is to be put by the purchaser has no bearing whatever upon the question whether the transaction is or is not interstate commerce. (Cases supra). Does, the statute lay an impost or duty upon imports into the State other than required by inspection laws? The act applies only by its terms to those who engage in a temporary or transient business in Wyoming. Those who have stores or fixed places of business in the State may send in their goods freely and sell them. Manufacturers, however, in other States who have no permanent place of business in this State cannot do so. Their goods are met at the border of the State, and their entrance or importation into the State is interfered with or entirely prevented except upon a condition which this State has no power to impose. There is no pretense that the act is an inspection law. In its effect and operation, therefore, it is virtually the laying of a duty or burden upon goods imported into the State from a sister State, and is levied because of the fact merely that the importer does not happen to have a permanent place of business in Wyoming. Does the statute deny to non-residents the privileges and immunities which the residents and citizens of Wyoming enjoy, and is it, therefore, in violation of the Privileges and Immunities Clause of the Federal Constitution? It is obvious that the statute applies only to those who do not have fixed or permanent places of business within the State of Wyoming. That is the fundamental idea underlying the statute. All its terms carry out that purpose. The result is that one who has a fixed or permanent place of business in the State may himself go from place to place within the State or employ agents for that purpose, exactly as the defendant did, without incurring any of the penalties of the statute. The resident of the State, therefore, who has a store or fixed place of business, is permitted, without license and without annoyance to carry on precisely the same kind of business and in the same way for which a non-resident can be arrested and fined and imprisoned, for the sole reason that he has no store or fixed place of business within the State of Wyoming. That this effect of the statute renders it unconstitutional and void cannot admit of the slightest question. That it denies to non-residents the privileges and immunities which citizens and residents of Wyoming enjoy is too plain for argument. The present statute was copied bodily from the Colorado law which was passed in 1905. That law was held in Colorado to be unconstitutional and void. (Smith v. Farr, 46 Colo. 364, 104 Pac. 401). That case was decided October 4, 1909, and subsequent to the enactment of the law in Wyoming. While the decision is not binding on this court, it is certainly entitled to great weight, for the case was given the most careful consideration, and was twice argued orally. Any statute, which by its express language or its necessary effect and operation, discriminates against non-residents or against goods raised or produced outside the State, or which discriminates in favor of residents or in favor of goods grown or produced within the State, or which makes it easy for residents of the State to comply with the law and makes it difficult, if not impossible, for non-residents to comply with the law, is plainly unconstitutional and invalid. Statutes of this sort have been common for more than a hundred years. The Colonies, before we had a government, frequently attempted to protect their own citizens and to burden the residents of other Colonies or the business of nonresidents, and this fact was one of the controlling causes leading to the formation of the present government, and is the reason for the constituttional provisions prohibiting any such discrimination. Without attempting to cite all of the cases in which statutes of this kind have been held void, a few will be cited, involving statutes of the same general sort as the one now before the court, which have been declared unconstitutional on this ground of discrimination. (Bacon v. Locke, 42 Wash. 215, 83 Pac. 721; B% parte Deeds, 75 Ark. 542, 87 S. W. 1030; In Re Jarvis, (Kans.) 71 Pac. 576; State v. Bornstein, (Me.) 78 Atl. 281; State v. Williams, (N. C.) 73 S. E. 1 ocx); Rogers v. McCoy, 6 Dak. 238, 44 N. W. 990; Comm. v. Caldwell, 190 Mass. 355, 76 N. E. 955; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76; Ex parte Thomas, 71 Cal. 204, 12 Pac. 53; Marshalltown v. Blum, 58 la. 184, 12 N. W. 266; Ames v. People, 25 Colo. 508, 55 Pac. 725; State v. Bayer, 34 Utah 257, 97 Pac. 129. See also Clements v. Casper, 4 Wyo. 494, 35 Pác. 472). The decisions of the Supreme Court of the United States on statutes of this kind are binding upon this court. These decisions have been numerous and consistent in holding that such statutes are invalid. (Ward v. Maryland, 97 U. S. (12 Wall.) 418; Welton v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 U. S. 434; Webber v. Virginia, 103 U. S. 344). Although such statutes do not, in express terms, discriminate against non-residents or against products raised or produced in other states, they are held to be unconstitutional if they have such effect and operation. (Minn. v. Barber, 136 U. S. 313; Brimmer v. Eebman, 138 U. S. 78). Does the statute deny to the defendant the equal protection of the laws within the prohibition of the Fourteenth Amendment to the U. S. Constitution? Upon this question the whole matter of classification must be considered. The mere fact that the Legislature makes a classification by the statute is not sufficient to relieve it from the application of the Equality Clause of said Amendment, but to take the statute out of the prohibitory clause it must appear that the classification is based upon some reasonable ground, and not a mere arbitrary selection. (Ry. Co. v. Ellis, 165 U. S. 150; Cotting v. K. C. Stock Yards Co., 183 U. S- 79; Connolly v. Union Sewer Pipe Co., 184 U. S. 540). The statute contains a number of classifications having the effect of permitting one person or class of persons to perform acts without punishment for which another person or class of persons may be punished or imprisoned. 1. The statute is made not to apply to commercial agents or travelers selling to merchants in the usual course of business.. The classification is not of itinerant vendors on the one hand and fixed merchants on the other, but it is a classification of itinerant vendors, some of them being subject to the law and others exempt. ( Smith v. Farr, supra). 2. The statute applies only to manufactured goods. There seems to be no good reason for punishing itinerant vendors who sell manufactured goods and at the same time exempting those who sell goods not manufactured. 3. Persons selling books, papers, or school supplies are exempt from the operation of the statute. Hence the statute does not even apply to all who sell manufactured products. Does the statute deprive defendant of his liberty or property without due process of law, in violation of said Fourteenth Amendment to the U. S. Constitution, and of the same provision in the Constitution- of Wyoming? It is clear that the statute has that effect, for it deprives defendant of his lawful business of selling vehicles, and prevents him from further engaging in the conduct of that business, and deprives him of the right of selling articles which are not injurious or harmful to the public in their use or enjoyment. (Ex parte Hull, 153 Fed. 459;- State v. Conlon, (Conn.) 33 Atl. 519; Monroe v. Endelman, (Wis.) 138 N. W. 70; Car-rollton v. Bazette, 159 Ill. 284, 42 N. E. 847; Iowa City v. Classman, (la.) 136 N. W. 899). Does the statute violate the provision of the State Constitution requiring all laws of a general nature to have a uniform-operation, and the other provision that the Legislature shall not pass any special laws granting to any individual any special or exclusive privileges whatever, .and that no special law shall be passed where a general law can be made applicable? The statute selects various classes or kinds of itinerant vendors and exempts them from the operation of the statute, without any reason therefor that would not require the statute to be extended to them in the same way as to those against whom the statute applies. Does the statute violate.the .provisions of the State Constitution requiring all taxation to be equal and uniform, and that all bills for raising revenue shall originate in the House of Representatives ? These two questions are presented upon the assumption that it may be urged that the statute is an exercise of the taxing power of the State and was passed as a revenue measure. We do not believe that the statute fairly discloses any such purpose. It is not in form a revenue measure: It places the license fees at a figure which no one could pay and continue in business. It was passed for the purpose of preventing anyone from engaging in the business rather than the purpose of inducing many to engage in such business in order to collect a revenue therefrom. The theory of the statute is that an itinerant vendor cannot lawfully engage in the business • without a license and the payment of the prescribed fee. Such provisions indicate that the statute was not intended as a revenue measure. If it was so intended then it seems clear that its burdens are so unequal and lacking in uniformity that it could not be sustained, and if a revenue measure- it violated the provision of the Constitution requiring bills for raising revenue to originate in the House of Representatives. Is the statute void as being unreasonable, discriminatory and prohibitive in that it provides unreasonable, unjust, unequal, and excessive burdens upon the conduct of a lawful business ? The statute is nothing more than a trade measure, for the sole and only purpose of preventing non-resident persons or concerns from carrying on their business in such a way as to compete with local merchants or storekeepers. It is of the same type as many statutes passed for that purpose which have been declared to be oppressive and unreasonable. (Denver Jobbers Ass’n. v. People, (Colo.) 122 Pac. 404; Mugler v. Kansas, 123 U. S. 623; Holden v. Hardy, 169 U. S. 366; Postal Tel. C. Co. v. Taylor, 192 U. S. 64; Ry. Co. v. Commissioners, 200 U. S. 561; State v. Rice, (Md.) 80 Atl. 1026; Wyeth v. Cambridge, 200 Mass. 474, 86 N. E. 925; State v. Smith, (Wash.) 84 Pac. 851; State v. Ashbrook, (Mo.) 55 S. W. 627; People v. Marx, (N. Y.) 2 N. E. 29; People v. Gilson, (N. Y.) 17 N. E. 343; Hauser v. Ins. Co., (N. Y.) 100 N. E. 52; Spaulding v. Evenson, 144 Fed. 913; Utah v. Bayer, 97 Pac. 129; State v. Wright (Ore.) 100 Pac. 296: Tea Co. v. Tippecanoe, (Ohio) 96 N. E. 1092; People v. Jenkins, (N. Y.) 94 N. E. 1065; Tea Co. v. Summit, 189 Fed. 280; Smith v. Farr, supra; Eaton v. People, (Colo.) 104 Pac. 407; Clements v. Casper, supra). The validity of such a law must depend upon whether its design is to accomplish a legitimate public purpose. If not, while under the pretense of exercising the police power, it is passed as a trade measure for the benefit of a certain kind or class of dealers to protect them from the competition of another kind or class of dealers, both of whom are engaged in selling harmless and legitimate articles, it is such a perversion of the power of the State as to render the statute unconstitutional and void. The mere statement of its real purpose is sufficient to condemn it as an improper measure for the public welfare. The statute complained of does not attempt to regulate interstate commerce. On the contrary, Section 2 of the Act seems to exempt from the provisions of the act those who are engaged in taking orders and shipping goods to fulfill such orders. The act applies only to those who carry on a transient business in the State. A merchant or dealer who stays in one locality until taxes are due therein and then moves to another locality, staying there until taxes are due, and moves again and continues this conduct, is an itinerant vendor, and competes with permanently located merchants without paying taxes. The State has a right to license such a business as a tax. The defendant, was engaged in intrastate commerce in so far as selling the goods already in the State is concerned, and he was subject to the license imposed ; and this liability was not avoided by the fact that he did, at times, engage in interstate commerce. He was not arrested for refusing to take out a license for the interstate commerce in which he might be engaged, but for his domestic dealings. The statute allows him the privilege of taking orders for goods to be later shipped into the State, but requires a líbense from him for engaging in the business of an “itinerant vendor.” (Cleveland, &c., R. Co. v. Bakus, (U. S.)' 38 R. Ed. 1041; Postal Tel. C. Co. v. Adams, (U. S.) 39 R. Ed. 311; Am. Steel Iron Co. v. Speed, 192 U. S- 500; Geni. Oil Co. v. Crain, 209 U. S. 231; Chrystal v. Mayor, &c., 108 Ga. 27; Racine Iron Co. v. McCommins, 51 R. R. A. 134). The contention that goods brought into the State and held here for sale are exempt from taxation cannot be seriously urged. The statute makes no distinction between residents and non-residents. One may be a non-resident of the State and still have a fixed and permanent place of business within it, or have no fixed business in' the State, and not be subject to the license, so, a resident of the State, without having a fixed and permanent place of business within it will be subject to the statute if he carries on a transient business. In this respect no distinction is made, but the statute applies alike to all persons under the same circumstances. If a permanent business house establishes transient business places in different parts of the State, where are the goods to be taxed ? They have the benefit of protection in the locality in which they are located, but when the time for assessment comes they ■have moved to a new locality. One carrying on a permanent place of business for the sale of jewelry in Cheyenne may see fit to establish temporary stores in different cities in the State during the Christmas buying season; these stores will enjoy all the public protection of the city and county in which they are‘located and will compete with the local permanent merchants who have or will be taxed on their stock of goods. When the Christmas holiday trade is over these temporary stores are discontinued. This presents the situation of a business upon which the State will have collected no tax. Whether the person engaging in such a transient business has a permanent business in Cheyenne or in another state makes no difference, but the statute covers every such case. (State v. Foster, 22 R. I. 163; Snyder v. Closson, 84 la. 184; Ex parte Master, 8 O. C. C. 324). We submit that there is no actual or attempted discrimination in this statute. The exemption of commercial travelers selling to merchants was no doubt put in out of abundant caution, but as they are not included in the prohibition of the statute the provision exempting them is mere surplus-age. ' The act applies to itinerant vendors only;' but it applies to all itinerant vendors, and therefore it is free from discrimination. (State v. Montgomery, 92 Me. 433; Machine v. Gage, 100 U. S. 676; Sydow v. Terr., 36 Pac. 214).