The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-04-11


and lost in both instances. The second
case was decided by Chancellor Estes,
being styled G. L. Ficklen & Co., ct ais,
VS.. Taxing District Of Shelby county. Fol-
lowing is the full text Of
TIE DECISION.
This case involves the constitutlonality tboih
under the Federal and State constiutions) OF tax
levied aud attempted TO be collected by the Taxing
District against the compliments
There Is a demurrer 10 the bill which challenges
on every point the right OF the compainants TO the
relief sought The purpose of the litigation Is to
test and h ave settled In the supreme court Of Ten
nessee aud, II need be, 10 the supreme court OF the
United States the constutionality OF the taxation.
The complainants are merchandise brokers In
the Taxing District: They employ no capital In
their business; fieklcn Co. as brokers, repre-
siyely while nine tenths Of Cooper Co.'s bust
ness IL OF the same character. The Taxing Dis
trict, under the statutes OF Tennessee Is attempt
ing TO enforce against them tax Of ~ per cent
on their gross commissions rs well license tax
OF $50. Under the bill this taxation is enjolned,
and The question Is whether the tax Is legal and
In view oithe fact that the questions raised are
TO be brought before the higher courts, IL Is not
necessary and perhaps Il would not be becoming
In me 10 discuss deliberately In written opinion
the very important and delicate questions In
yolved. Al all events my sense OF duty In the
premises prompts me TO forbear an elaboration OF
my views on the questions raised and 10 simply
state my conclusions after full argument and
pretty careful consideration OF the case.
L. do not think that the eompainants are en-
braced within the puryicw OF Section is Of the act
OF 1881, which provides, IAN drummers and all
not having regular licensed nosss OF
selling goods, wares or merchandise there by sam
pies, shall be re9uIed pay to the county trustee
drnmmers, according 10 the definition OF that term
by the supreme court OF Tennessee.
Robbins vs. Taxing Dist, IL Lea, 3oo
Singleton vs.. Frcisch, Lea. P6.
They arc not travelling agents." but have Fixed
offices In the district as shown by the bill They
have regular licensed houses Of business In the
Taxing District, although they are now by this
suit contrasting their liability IN the future to take
out licenses Therefore. In my opinion they are
not embraced 10 this section of the act.
. The bill distinctly changes that the defend
asserts its right 20 lay and collect the under
Section OF the act Of ISL and the real question
the demurrer Is whether they are taxable under
that section. II leyicS a privilege tax on every
person firm dealing In cotton any other article
whatever whether factor, broker. buyer or seller
on commission or otherwise OF $50 per annum, aud
In addition 10 cents on every 500 Oi amount OF cap
ital invested or used In such business.
And provided further that II the persons taxed In
this subsection have no capital Invested they shall
pay 81 per cent ou their gross yearly commissions.
charges or cOmpcusatuns Tor said business, and ~
the time OF taking out their said license they shall
give bond 10 return sad gross comm ssions charges
or computations 20 the trustee at the end Of the
year aud At the end of the year they shall make re-
turn TO said trustee accordingly, aud pay TO him
| the said ~ per cent.
For the year 1851 the com plainants complied with
the requirements Of this section by paying the so
and giving their bond 20 return their gross com.
missions at the end Of the year but they now claim
spects and resist their obligation under the bond
and their liability In the future To comply with
| this law,
d DO not think that under the rules adopted
for tho construction Of constitutions, the objection
made 10 the form and scope OF the title Of the act
| 81 1881 should 10 sustained The title Of the act
| provides for the OBSERVATION-DISCLOSURES ala-of sub.
section ~ OF Section Of the act Oi 1873 aud add.
ine also subsection ~ TO section u. The body Of
the act TRANSPORTS subsection " aud makes Il sub
section ~. and inserts new provision n subsection
II. II i claimed with great force that under the
constitutional provision In reference 10 the ute Of
statutes this little did pot authorize the insertion
| OF the new provision. This j. certainly radical
amendment 81 the original subsection u, hut still
| itmay properly he considered an amendment un
der the rules for constituting constitutional prOyis
| Ions An amendment may strike out all oil stat
ute after the enscing clause. and TO sustain The
| constltntonality of a law the court may well hold
this transpositon Of the section and the insertion
| Of the new provision 20 he an amendment
Strict and technical rules ~ cases Ike this should
| not be adopted. Tho oonstltutionsllty OF the law
should he sustained by the court unless upon sub.
siantla and solid grounds Il Is plainly violation OF
n i next Insisted that this section creates but
one class for privilege taxation and dlscrlminaics
| between menbcis VI the same clsss, which hte
| pigment "a the State constitution. The section
embraces different businesses or vacations, "whcih.
er a. factor or broker. buyer OF seller ON commits
sion or otherwise" According TO the legal and
| common definition of the vacations thus dcsfr ibed
some Of them arc conducted without capital aud
| Nomc with. broker l. an agent OF negotlator be
tween buyer and seller. No capital Is employed or
lng aud selling. otherwise than ON commission. re-
qnlps capital. and no doubt the Legislature In
This section made two clsssc-, one OF which em.
plOycd capital and the other docs not. ON the one
The tar l. measured by the capital employed and
| on the other by the commissions The complnlnants
arr Of the sccend class and they are required e pay
| according 10 the gruss commissions do not think
the law ~ fat ~ II Affects the complainants, 4
obnoxious 30 the constitutional objection nfged.
twa, oompsisni ior the Lsgisl,a ia 70 make the
s. Upon a proper construction Of the state con.
stitullon do not sce why the Legislature may not
tar Income. but ths scction dos no. a9 thls, "
the measure Of the liccn-r tar 10 addition 10 the
80. and this method OF nzing the tar Is legiti'
mate
q Il is next shown w the complaInants. c. l.
flckien a Co.. that thclf entire bushes Il selling
goods etc. lor non.rcsidents Of the state Of len.
that this Tar i burden ON interstate commcrue.
aud therefore violation Of that clause Of the con
ttitulion Of the United states that grant. 10 Con
nations and among The several States and among
the Indian tribe" tAn. !. soc. :, Constt ution Of
the United staiesl
one tenth 81 their commissions accrucs from bust
agents ~ residents Of Tennc,-cc, while they
claim tina, nineicnih, thsrcoi y IRON husin q,
state. The question u whether the tar sought "a
| b. collected u a burden on inierstaie commcfuc.
lit l.. the Legislature Of Tennessee had no power
70 levy IT, ior under the CONSTITUTION Of the United
states the power Il granted exclusively 10 Congress.
a. l. scttcd by the supreme court
II II q perplet Ing duty In many cnscs iof courts
| 20 determine whether particular tax burden
on Interstate comtnene. Upon mi. subject the
suprvmc court 81 the United state. IN Osborno "
Mobile "a Wall, 81, say. The dlnlculty Of draw.
| Ing the line hctwccn constitutional and IN.
constitutional taxation by the stato was Acknowi
edged. aud has always hccn acknowledged ny TIL,
cuuri, but that ihcc u such line l. clear and the
court can bet discharge ~ duty BY determining
In earh case on which side the tax complained ol
H. II 4 a. important 10 have the righiiu powcn
Of the state IN ntrcCi 10 taxation unimpaircd a. q
,6siT MERRITT S issie~ q ne ,Sss 90 ~
question IA The nport. Of the Divisions BY the
Inprnc court ~ the United States best attest.
the difficulties involved. Tor In some Of
| them the c0ur has bcen divided In opinion. aud
In aomc the distinctions taken sccm 10 BE- - un
substantial that ihel not cadily grasped By tho
mind The latest chsc. and the one that Is most
analogous 20 this, = that ol Robbins " the Tax.
ciicd BY yc Judges against thfcc dissenting Judge.
tMf Justice Wool not being on the bench NJ The
tiuie that tar imposed BY authority II the state
| Of Tcnncasyc upon drummer Who sold gods fuI
CINCINNATI merchant by sample In Aemphk Wa
| Unconstitutional u must ~ apparent 10 any
Judge or lawyer that this decision pushes the prn
ciplr applicable 10 hibernate commerce ycfJ far
bit The court that mad. q Z the hnal afblicf Of the
questions involved and al other courts Ia thl.
country must Yield olcdicnce 10 H. authority.
Now. the only dincrcnccs bctweun that case and
this nw that In the Que the agent sought 10 hf
taxcd VA. non f,sidcni " The state and piled bis
vocation ~ tnycllng ffotn point 10 polut while
The CON palnanis here arr residents ol Tennesscs
. and have rNe.l plars 81 business In the Taflna
District Then can these dlncfcnccs affect ths