The Key West citizen. [volume] (Key West, Fla.) 1879-current, 1933-06-03

0uuSc JG1IcIGoH H. 1sAtNHSs ia
circuit court, today handed down
!, his decision in the case of the city
of Key West against NJ. A. Kelly
charged with soliciting business
without license. Mr.. Kelly was
fined $50 in police court, app
pealed the case and a writ Of
habeas corpus was issued by de-
| PENDANTS attorney, George G..
Brooks, against Laurie Roberts.
chief of police. Mr.. Kelly is or
dered released
The decision and opinion in
brief follows:
! This case was decided in 1887
when the trainers of the Con-
stitution of The United States
wrote The congress shall have
power to regulate commerce with
foreign nations and with the sew
eral states and with the Indian
tribes
"This provision was first con-
strued by Chief Justice Marshall,
of the supreme court, in 1927 in
the case of Brown VS.. Maryland.
IL Wheat, 419, where the court
held that state law requiring an
importer to take. license and pay
$50 before he could sell imported
goods is in conflict with the fore
going provision of the eonstitu-
ton.
1T is still argued that this il
not a tax upon the article, but on
the person. The state, it is said,
may tax occupations, and this is
nothing more. II is impossible to
conceal from ourselves that this is
varying the form without varying
| the substance. It is treating a
proposition which is general, as If
! it were confined to a particular
mode of doing the particular
thing. All must perceive that the
tax on the sale of an article is a
tax on the article itself.
i Cites Two Cases
| 81 shall, however. cite from
two cases decided by the supreme
court of the United States, al.
though there are scores of others
that support the doctrine that 3
license tax upon a person, whether
he be called salesman. drummer,
commercial traveller, agent, can
Evasser, solicitor or what not, who
takes orders for merchandise 70
be shipped from without the
state, is an interference with the
sole right of congress to regulate
interstate commerce and is uneon-
stitutienal and imperative.
Cone case was that Of Robbins
VS.. Shelby Taxing District decided
in June 1896 In this case 1t was
held that state could not inn
pose tax on 4 person, whether
a resident or not, engaged IN
soliciting orders for goods to be
shipped in interstate commerce.
THE case Of Stoekard vs.. Nor
gan. 1876 u. S. IN, ID more com.
pleteiy on all fours with the case
at bar than il generally found
probably due 20 the fact that the
law being so clearly definitely,
ureyoesbiy and nneauivocaily set
tied, states and cities have cesssd
to indulge IN futile attempt to
| cifcnmvent il.
In the Stoekard ease The
state of Tennessee sought 10 col
leet a license lax from persons
resident in the state Tor ceiling
merchandise 10 be shipped aatp
Tennessee iroa a firm III another
state.
Relative To Orders Takes
These persons, like tbs patti
tioner here. resided sn the state
in which they took orders for ths
goods and 3ere paid = salary in
the nature 81 = commission based
upon the amount Of sales They,
lske the petitioner. sold no goods
THAT were th@ propsrty Of persons
residing Id the state. in shat
ease. iiks the one 90 har, Il was
sontende.i thai the iieease taa
I was oa the snaiYSdaaI ana tisern-
fnre nos = az gn Interstate eens-
rserre
TsR supreme ga4Ts ~ Es~
UHltsa Ssates alEYsses u shsE esss.