Brennan v. Titusville
153 U.S. 289 (1894)

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U.S. Supreme Court

Brennan v. Titusville, 153 U.S. 289 (1894)

Brennan v. Titusville

No. 902

Submitted January 5, 1894

Decided April 30, 1894

153 U.S. 289

Syllabus

An ordinance requiring agents soliciting orders on behalf of manufacturers of goods to take out a license and pay a tax therefor, made by a municipal corporation under authority conferred by a statute of the state granting to such corporations power to levy and collect license taxes on hawkers, peddlers, and merchants of all kinds, is an exercise not of the police power, but of the taxing power, and when it is enforced against an agent, sent by a manufacturer of goods in another state to solicit orders for the products of his manufactory, it imposes a tax upon interstate commerce in violation of the provisions of the Constitution of the United States.

This Court is not bound by the decision of the highest court of the state in which such a tax is authorized and imposed, that its authorization and imposition are an exercise of the police power, and not of the taxing power.

On May 12, 1890, plaintiff in error was convicted in the Court of the City Recorder of the City of Titusville, Pennsylvania, of a violation of an ordinance entitled "An ordinance to provide for the levy and collection for general revenue purposes of annual license taxes in the City of Titusville," and sentenced to pay a fine of $25 and costs. From that sentence he appealed to the Court of Common Pleas of Crawford County. In that court, the case was tried upon the following agreed statement of facts:

"1. J. A. Shephard is a manufacturer of picture frames and maker of portraits, residing in Chicago, in the State of Illinois, of which state he is a citizen, and in which city he has his manufactory and place of business. "

Page 153 U. S. 290

"2. In the prosecution of said business, he employs agents who, under his direction, solicit orders for pictures and picture frames in the State of Pennsylvania and in other states of the union by going personally to residents and citizens of said State of Pennsylvania and other states and exhibiting samples of his pictures and frames, going, when necessary, from house to house, in said State of Pennsylvania and other states."

"3. The defendant, J. W. Brennan, was an agent of the said J. A. Shephard, employed by him to travel and solicit orders for said pictures and frames in the manner stated, upon a salary, and also upon commission upon the amount of his sales at the time of his arrest, May 25, 1889, upon a warrant issued by the authorities of the City of Titusville, in the State of Pennsylvania."

"4. Upon receiving orders for pictures and picture frames, the agents of the said J. A. Shephard forwarded the same to him at Chicago, in the State of Illinois, where the goods were made, and from there shipped by said J. A. Shephard to the purchasers in Titusville, in the State of Pennsylvania, by railroad freight and express, and the price of said goods was collected and forwarded by the express companies and sometimes by the agents to said Shephard at Chicago, in the State of Illinois. J. W. Brennan, the agent employed by J. A. Shephard, was engaged in conducting the business in the manner stated at the time of his arrest, May 25, 1889. The said J. W. Brennan at the time of his arrest and before, had not been otherwise employed than as stated, and was acting solely for the said Shephard."

"5. The City of Titusville had enacted an ordinance, in force at the date of the arrest of said J. W. Brennan, which, in the twelfth section thereof, provides in words and figures as follows:"

" That all persons canvassing or soliciting within said city orders for goods, books, paintings, wares, or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited, shall be required to procure from the mayor a license to transact said business, and shall pay to the said treasurer therefor the following sums, according to

Page 153 U. S. 291

the time for which said license shall be granted, viz.: for one day, one dollar and fifty cents; one week, $5.00; three months, $10.00; one year, twenty-five dollars; provided, that the provisions of this ordinance shall not apply to persons selling by sample to manufacturers or licensed merchants or dealers residing and doing business in said city."

"And the said ordinance further provides, in the eighteenth § thereof, as follows:"

" That any person or persons failing to obtain a license as required by this ordinance shall, upon conviction thereof before any magistrate, alderman, or justice of the peace of said city, forfeit and pay a fine not exceeding one hundred dollars, nor less than the amount required for a license to such person or persons, together with twenty percent added as a penalty, with costs of suit, and in default of payment thereof shall undergo a confinement in the city or county prison for a period not exceeding ninety days, or perform hard labor on the streets or elsewhere in said city not exceeding such period."

"6. At the time of his arrest, the defendant, Brennan, was not and had not been selling by sample to manufacturers or licensed merchants or dealers residing in said City of Titusville, and was not, within the provision of the twelfth section of said ordinance, soliciting to such excepted persons."

"7. The defendant J. W. Brennan, at the time of his arrest, had not obtained a license as required by said ordinance, and had not paid to the Treasurer of the City of Titusville the license fee provided by said ordinance."

"8. The defendant was arrested, tried, convicted, and sentenced to pay a fine of $25 and costs of suit under said ordinance on the 29th day of May, 1889, before W. M. Dame, City Recorder of the City of Titusville."

"If the court should be of opinion upon the facts stated that the defendant, J. W. Brennan, was liable to take out a license, and pay the license fee provided by said ordinance, then judgment to be entered for the plaintiff, the City of Titusville, for $25 and costs of suit. If the court should be of opinion that said Brennan was not so liable, then judgment to be entered for the defendant, with costs of suit. "

Page 153 U. S. 292

Upon these facts, on May 20th, that court entered judgment against him for $25 and costs. From that judgment he appealed to the supreme court of the state, which court, on October 5, 1891, affirmed the judgment. Thereupon he sued out a writ of error from this Court.

Page 153 U. S. 297

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