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Syllabus.

If there is anything more in the eleventh question certified than has been already disposed of in answering the others, it is too broad and indefinite for our consideration under the rules which have been long established regulating the practice on a certificate of division. All the questions certified, except the eleventh, are answereld

in the affirmative, and as to that, no special answer will be made,

ROBBINS v. SHELBY COUNTY TAXING DISTRICT.

ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE.

Submitted January 8, 1886. – Argued November 5, 1886. – Decided March 7, 1887.

Chapter 96, § 16, Stats. Tennessee, 1881, enacting that “all drummers and

all persons not having a regular licensed house of business in the Taxing District • of Shelby County,' offering for sale, or selling goods, wares, or merchandise therein by sample, shall be required to pay to the county trustee, the sum of $10 per week, or $25 per month for such privilege," applies to persons soliciting the sale of goods on behalf of individuals or tirms doing business in another state; and, so far as it applies to them, it is a regulation of commerce among the states, and violates the provis. ion of the Constitution of the United States which grants to Congress

the power to make such regulations. Interstate commerce cannot be taxed at all by a state, evon though the same

amount of tax should be laid on domestic commerce, or that which is

carried on solely within the state. The power granted to Congress, to regulate commerce among the states,

being exclusive when the subjects are national in their character, or admit only of one uniform system of regulation, the failure of Congress to exercise that power in any case, is an expression of its will that the subject shall be left free from restrictions or impositions upon it by the

several states. A state may enact laws which in practice operate to affect commerce among

the states - as by providing in the legitimate exercise of its police power and general jurisdiction, for the security and comfort of persons and the protection of property; by establishing and regulating channels for commercial facilities; by the passage of inspection laws and laws to restrict the sale of articles injurious to health and morals; by the imposition of taxes upon arocations within its borders not interfering with foreign or interstate commerce or employment, or with business exer

Opinion of the Court.

cised under authority of the Constitution of the United States; and in other ways indicated in the opinion of the court, subject in all cases to the limitations therein defined: but the statute of the State of Tennessee, considered in this opinion, is not such a law.

This was an information in a state court of Tennessee, against the plaintiff in error, for doing business in the Taxing District of Shelby County in that state, as a drummer on behalf of a firm doing business in Cincinnati, Ohio, without a license as required by the provision of the statute of Tennessee, which is set out in the opinion of the court. The defendant was found guilty, and this judgment was affirmed by the Supreme Court of the state on appeal. 13 Lea, 303. The defendant sued out this writ of error. The cause was submitted at the last term of court. The court, on the Sth of March, 1886, ordered it argued; and argument was heard accordingly at this term. The case is stated in the opinion of the court.

Mr. F. T.

Mr. Luke E. Wright for plaintiff in error. Edmondson was with him on the brief.

Mr. S. P. Walker for defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This case originated in the following manner: Sabine Robbins, the plaintiff in error, in February, 1884, was engaged at the city of Memphis, in the State of Tennessee, in soliciting the sales of goods for the firm of Rose, Robbins & Co., of Cincinnati, in the State of Ohio, dealers in paper, and other articles of stationery, and exhibited samples for the purpose of effecting such sales, -- an employment usually denominated as that of a “drummer." There was in force at that time a statute of Tennessee, relating to the subject of taxation in the Taxing Districts of the state, applicable, however, only to the Taxing Districts of Shelby County, (formerly the city of Memphis,) by which it was enacted, amongst other things, that “ All drummers, and all persons not having a regular licensed house of business in the Taxing District, offering for sale or

Opinion of the Court.

selling goods, wares, or merchandise therein, by sample, shall be required to pay to the county trustee the sum of $10 per week, or $25 per month, for such privilege, and no license shall be issued for a longer period than three months.” Stats. Tennessee, 1981, c. 96, § 16.

The business of selling by sample and nearly sixty other occupations had been by law declared to be privileges, and were taxed as such, and it was made a misdemeanor, punishable by a fine of not less than five, nor more than fifty dollars, to exercise any of such occupations without having first paid the tax or obtained the license required therefor.

Under this law, Robbins, who had not paid the tax nor taken a license, was prosecuted, convicted and sentenced to pay a fine of ten dollars, together with the state and county tax, and costs; and on appeal to the Supreme Court of the state, the judgment was affirmed. This writ of error is brought to review the judgment of the Supreme Court, on the ground that the law imposing the tax was repugnant to that clause of the Constitution of the United States which declares that Congress shall have power to regulate commerce among the several states.

On the trial of the cause in the inferior court, a jury being waived, the following agreed statement of facts was submitted to the court, to wit:

“Sabine Robbins is a citizen and resident of Cincinnati, Ohio, and on the - day of — 1884, was engaged in the business of drumming in the Taxing District of Shelby County, Tenn.; i.e., soliciting trade by the use of samples for the house or firm for which he worked as a drummer, said firm being the firm of 'Rose, Robbins & Co.,' doing business in Cincinnati, and all the members of said firm being citizens and residents of Cincinnati, Ohio. While engaged in the act of drumming for said firm, and for the claimed offence of not having taken out the required license for doing said business, the defendant, Sabine Robbins, was arrested by one of the Momphis or Taxing District police force and carried before the lion. D. P. IIadden, president of the Taxing District, and fined for the offence of drumming without a license. It is

Opinion of the Court.

admitted the firm of Rose, Robbins & Co.' are engaged in the selling of paper, writing materials, and such articles as are used in the book stores of the Taxing District of Shelby County, and that it was a line of such articles for the sale of which the said defendant herein was drumming at the time of his arrest."

This was all the evidence, and thereupon the court rendered judgment against the defendant, to which he excepted, and a bill of exceptions was taken.

The principal question argued before the Supreme Court of Tennessee was, as to the constitutionality of the act which imposed the tax on drummers; and the court decided that it was constitutional and valid.

That is the question before us, and it is one of great importance to the people of the United States, both as it respects their business interests and their constitutional rights. It is presented in a nutshell, and does not, at this day, require for its solution any great elaboration of argument or review of authorities. Certain principles have been already established by the decisions of this court which will conduct us to a satisfactory decision. Among those principles are the following:

1. The Constitution of the United States having given to Congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system, or plan of regulation. This was decided in the case of Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299, 319. and was virtually involved in the case of Gibbons v. Ogden, 9 Wheat. 1, and has been confirmed in many subsequent cases, amongst others, in Brown v. Maryland, 12 Wheat. 419; The Passenger Cases, 7 How. 283; Cranilall v. Nevada, 6 Wall. 35, 42; Ward v. Maryland, 12 Wall. 418, 430; State Freight Tac Cases, 15 Wall. 232, 279; IIenderson v. Mayor of Nero York, 92 U.S. 259, 272; Railroad Co. v. Ilusen, 95 U. S. 465, 469; Mobile v. Kimball, 102 U. S. 691, 697; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Wabash, &c., Railway Co. v. Illinois, 118 U. S. 557.

Opinion of the Court.

2. Another established doctrine of this court is, that where the power of Congress to regulate is exclusive the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the states, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. This was held by Mr. Justice Johnson' in Gibbons v. Ogilen, 9 Wheat. 1, 222, by Mr. Justice Grier in the Passenger Cases, 7 IIow. 283, 462, and has been affirmed in subsequent cases. State Freight Tax Cases, 15 Wall. 232, 279; Railroad Co. v. Ilusen, 95 U. S. 465, 469; Telton v. Missouri, 91 U. S. 275, 282; Mobile v. Kimball, 102 U. S. 691, 697; Brown v. IIouston, 114 U. S. 622, 631; Walling v. Michigan, 116 U. S. 446, 455; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Wabash, &c., Railway Co. v. Illinois, 118 U. S. 557.

3. It is also an established principle, as already indicated, that the only way in which commerce between the states can be legitimately affected by state laws, is when, by virtue of its police power, and its jurisdiction over persons and property within its limits, a state provides for the security of the lives, limbs, health, and comfort of persons and the protection of property; or when it does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities; the passage of inspection laws to secure the due quality and measure of products and commodities; the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the community; the imposition of taxes upon persons residing within the state or belonging to its population, and upon avocations and employments pursued therein, not directly connected with foreign or interstate commerce or with some other employment or business exercised under authority of the Constitution and laws of the United States; and the imposition of taxes upon all property within the state, mingled with and forming part of the great mass of property therein. But in making such internal regulations a state cannot impose taxes upon persons

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