The protection of the commerce clause of the federal
Constitution extends beyond the strict lines of contract, and
inseparable incidents of a transaction of interstate commerce based
on contract are also interstate commerce.
Where, under the contract to purchase a picture, the purchaser
has the option to take at a specified price the frame in which the
picture shall be delivered, and both picture and frame are
manufactured in and delivered from another state and remain the
property of the vendor until paid for, the sale of the frame is a
part of the original transaction and protected by the commerce
clause of the Constitution.
The imposition of a license tax for soliciting orders for
enlargements of photographs and frames on persons not having a
permanent place of business in the state and keeping such articles
as stock in trade is a regulation of commerce between the states
and void under the commerce clause of the federal Constitution,
both as to the orders for the picture itself and as to an optional
right to take at a price specified in the contract, the frame in
which the picture is delivered, and so
held as to the
license tax imposed under § 17 of the statute of March 7, 1907, of
Alabama.
154 Ala. 83 reversed.
The facts are stated in the opinion.
Page 218 U. S. 126
MR. JUSTICE HOLMES delivered the opinion of the Court.
The plaintiff in error was convicted and sentenced to a fine on
a complaint for breach of an Alabama statute of
Page 218 U. S. 127
March 7, 1907. By § 17 of that act, a license tax was imposed on
persons who did not have a permanent place of business in the state
and also keep picture frames as a part of their stock in trade if
they solicited orders for the enlargement of photographs or
pictures of any character, or for picture frames, whether they made
charge for such frames or not, or if they sold or disposed of
picture frames. The Chicago Crayon Company, having its only place
of business in Chicago, and being engaged in the business of making
and enlarging portraits from photographs, and in the manufacturing
of picture frames, solicited orders in Alabama without paying the
license tax. These orders were given in writing for a portrait of
the size and kind wanted, specified the price, cash on delivery,
and continued: "I understand that my portrait is to be delivered in
an appropriate frame, which this contract entitles me to accept at
factory price." The agent of the company gave back a written
acceptance, repeating the other terms of the bargain, and adding:
"All portraits are delivered in appropriate frames, which this
contract entitled the purchaser to accept at factory prices," with
particulars purporting to show that these prices were from one
third to one-half the retail or usual ones. The plaintiff in error,
who also had no permanent place of business in Alabama and had paid
no license tax, was an agent of the company, who delivered pictures
and frames, and collected for them, in pursuance of the agreed
plan. The pictures and frames were sent to the agent, and remained
the property of the company until paid for and delivered. On these
facts, the Supreme Court of Alabama, while admitting that the
dealings concerning the pictures were commerce among the states,
sustained the conviction on the ground that the sale of the frames
was a wholly local matter. 154 Ala. 83.
No doubt it is true that the customer was not bound to take the
frame unless he saw fit, and that the sale of it
Page 218 U. S. 128
took place wholly within the State of Alabama, if a sale was
made. But, as was hinted in
Rearick v. Pennsylvania,
203 U. S. 507,
203 U. S. 512,
what is commerce among the states is a question depending upon
broader considerations than the existence of a technically binding
contract, or the time and place where the title passed. It was
agreed that the frame should be offered along with the picture. The
offer was a part of the interstate bargain, and as it was agreed
that the frame should be offered "at factory prices," and the
company and factory were in Chicago, obviously it was contemplated,
if not agreed, that the frame should come on with the picture. In
fact, the frames were sent on with the pictures from Chicago, and
were offered when the pictures were tendered, as part of a
transaction commercially continuous, and one at prices generically
fixed by the contract for the pictures, and by that contract
represented to be less than retail or usual prices, in
consideration, it is implied, of the purchase already agreed to be
made. We are of opinion that the sale of the frames cannot be so
separated from the rest of the dealing between the Chicago company
and the Alabama purchaser as to sustain the license tax upon it.
Under the decisions, the statute, as applied to this case, is a
regulation of commerce among the states, and void under the
Constitution of the United States. Art. I, § 8.
Robbins v.
Shelby County Taxing District, 120 U.
S. 489;
Caldwell v. North Carolina,
187 U. S. 622;
Rearick v. Pennsylvania, 203 U. S. 507.
Judgment reversed.
