By a general revenue act of the State of Georgia, a specific tag
was levied upon many occupations, including that of "emigrant
agent," meaning a person engaged in hiring laborers to be employed
beyond the limits of the state.
Held that the levy of the
tag did not amount to such an interference with the freedom of
transit, or of contract, as to violate the federal
Constitution.
Nor was the objection tenable that the equal protection of the
laws was denied because the business of hiring persons to labor
within the state was not subjected to a like tax.
The imposition of the tax fell within the distinction between
interstate commerce, or an instrumentality thereof, and the mere
incidents which
Page 179 U. S. 271
may attend the carrying on of such commerce. These labor
contracts were not in themselves subjects of traffic between the
states, nor was the business of hiring laborers so immediately
connected with interstate transportation or interstate traffic that
it could correctly be said that those who followed it were engaged
in interstate commerce, or that the tax on that occupation
constituted a burden on such commerce.
R. A. Williams was arrested on a warrant issued by the County
Court of Morgan County, Georgia, and placed in the county jail on
his failure to give bond pending his trial. Thereupon he made
application to the judge of the superior court within and for that
county for a writ of habeas corpus by petition alleging that the
warrant under which he was arrested charged him with a violation of
the tenth paragraph of section two of the General Tax Act of
Georgia of 1898, and that his restraint was illegal because that
part of the act was in conflict with clause three of section eight,
and with clause five of section nine, of article one, and with
section two of article four of the Constitution of the United
States, and also with the Fourteenth Amendment. The writ of habeas
corpus was duly issued, and the application heard on the return
thereto, which resulted in the denial of the petition by the
superior court and the remanding of Williams to custody. The case
was then carried to the Supreme Court of Georgia, where, on April
11, 1900, judgment was rendered affirming the judgment of the
superior court. 35 S.E. 699.
The title of the General Tax Act of 1898 (Georgia Laws 1898, p.
21) read thus:
"An act to levy and collect a tax for the support of the state
government and the public institutions; for educational purposes in
instructing children in the elementary branches of an English
education only, to pay the interest on the public debt, and to pay
maimed Confederate soldiers and widows of Confederate soldiers such
amounts as are allowed them by law for each of the fiscal years
1899 and 1900, to prescribe what persons, professions, and property
are liable to taxation, to
Page 179 U. S. 272
prescribe the methods of collecting and receiving taxes; to
prescribe the method of ascertaining the property of the state
subject to taxation, to prescribe additional questions to be
propounded to taxpayers and to provide penalties and forfeitures
for nonpayment of taxes, to prescribe how the oath of taxpayers
shall be administered and provide penalties for violation thereof,
and for other purposes."
Section 2 provided
"that, in addition to the
ad valorem tax on real estate
and personal property as required by the constitution and provided
for in the preceding section, the following specific taxes shall be
levied and collected for each of said fiscal years 1899 and
1900."
Then followed paragraphs imposing poll taxes, and taxes on
lawyers, doctors, photographers, auctioneers, keepers of pool and
billiard tables, traveling venders of patent or proprietary
medicines, special nostrums, jewelry, paper, soap, or other
merchandise, local insurance agents, etc.
Paragraph 10 was as follows:
"Upon each emigrant agent, or employer or employee of such
agents, doing business in this state, the sum of five hundred
dollars for each county in which such business is conducted."
Section 4 was as follows:
"Be it further enacted by the authority aforesaid, that the
taxes provided for in paragraphs 3, 4, 5, 6, 7, 8, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30,
31, and 32 of section 2 of this act shall be paid in full for the
fiscal years for which they are levied to the tax collectors of the
counties where such vocations are carried on at the time of
commencing to do business specified in said paragraphs. Before any
person taxed by paragraphs 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,
and 32 of section 2 of this act shall be authorized to carry on
said business, they shall go before the ordinary of the county in
which they propose to do business and register their names, places
of business, and at the same time pay their taxes to the tax
collector, and it shall be the duty of said ordinary to immediately
notify the comptroller general and the tax collector. Any person
failing to register with the ordinary, or, having registered,
failing to pay the tax as herein required, shall be liable to
indictment for misdemeanor, and, on conviction, shall be
Page 179 U. S. 273
fined not less than double the tax, or be imprisoned as
prescribed by section 1039 of volume 3 of the Code of 1895, or
both, in the discretion of the court. One-half of said fine shall
be applied to the payment of the tax, and the other to the fund of
fines and forfeitures for use of officers of court."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Persons following the occupations named in some twenty-nine
paragraphs of section 2 of the tax act of 1898, if they failed to
register their names before the ordinary, or, having registered,
failed to pay their taxes as required by section 4, were liable to
indictment for misdemeanor.
The Supreme Court of Georgia pointed out that it did not
distinctly appear whether Williams was charged with having done
business without registering, or without paying the tax, but
considered that to be immaterial, since he could not be punished
for a failure to do either if the provision imposing the tax were
unconstitutional.
As preliminary to considering the validity of the provision the
court, as matter of original definition, and in view of prior
legislation (Acts 1876, p. 17; Acts 1877, p. 120; Code, 1882,
section 4598,
a, b, c), held that the term "emigrant
agent," as used in the General Tax Act of 1898, meant a person
engaged in hiring laborers in Georgia to be employed beyond the
limits of that state.
The court called attention to the fact that, while previous acts
had required a license, this act provided for a specific tax on the
occupation of emigrant agents in common with very many other
occupations, the declared purpose of the levy being for the support
of the government, and ruled that the question of whether the tax
was so excessive as to amount to a prohibition on the transaction
of that business did not arise, and indeed was not raised.
Page 179 U. S. 274
The inquiry is, then, whether a state law taxing occupations is
invalid so far as applicable to the pursuit of the business of
hiring persons to labor outside the state limits, because in
conflict with the federal Constitution.
On behalf of plaintiff in error, it is insisted that paragraph
ten is in conflict with the Fourteenth Amendment because it
restricts the right of the citizen to move from one state to
another, and so abridges his privileges and immunities, impairs the
natural right to labor, and is class legislation, discriminating
arbitrarily and without reasonable basis.
Undoubtedly the right of locomotion, the right to remove from
one place to another according to inclination, is an attribute of
personal liberty, and the right, ordinarily, of free transit from
or through the territory of any state is a right secured by the
Fourteenth Amendment and by other provisions of the
Constitution.
And so as to the right to contract. The liberty of which the
deprivation without due process of law is forbidden
"means not only the right of the citizen to be free from the
mere physical restraint of his person, as by incarceration, but the
term is deemed to embrace the right of the citizen to be free in
the enjoyment of all his faculties, to be free to use them in all
lawful ways, to live and work where he will, to earn his livelihood
by any lawful calling, to pursue any livelihood or avocation, and
for that purpose to enter into all contracts which may be proper,
necessary, and essential to his carrying out to a successful
conclusion the purposes above mentioned, . . . although it may be
conceded that this right to contract in relation to persons or
property or to do business within the jurisdiction of the state may
be regulated and sometimes prohibited when the contracts or
business conflict with the policy of the state as contained in its
statutes."
Allgeyer v. Louisiana, 165
U. S. 589,
165 U. S. 591;
Holden v. Hardy, 169 U. S. 366.
But this act is a taxing act, by the second section of which
taxes are levied on occupations, including, by paragraph ten, the
occupation of hiring persons to labor elsewhere. If it can be said
to affect the freedom of egress from the state, or the freedom of
contract, it is only incidentally and remotely. The
Page 179 U. S. 275
individual laborer is left free to come and go at pleasure, and
to make such contracts as he chooses, while those whose business it
is to induce persons to enter into labor contracts and to change
their location, though left free to contract, are subjected to
taxation in respect of their business as other citizens are.
The amount of the tax imposed on occupations varies with the
character of the occupation. Dealers in futures are compelled to
pay one thousand dollars annually for each county in which the
business is carried on; circus companies exhibiting in cities or
towns of twenty thousand inhabitants or more, one thousand each day
of exhibition; peddlers of cooking stoves or ranges, two hundred
dollars in every county in which such peddler may do business;
peddlers of clocks, one hundred dollars, and so on.
The general legislative purpose is plain, and the intention to
prohibit this particular business cannot properly be imputed from
the amount of the tax payable by those embarked in it, even if we
were at liberty on this record to go into that subject.
It would seem, moreover, that the business itself is of such
nature and importance as to justify the exercise of the police
power in its regulation. We are not dealing with single instances,
but with a general business, and it is easy to see that, if that
business is not subject to regulation, the citizen may be exposed
to misfortunes from which he might otherwise be legitimately
protected.
Nor does it appear to us that the objection of unlawful
discrimination is tenable.
The point is chiefly rested on the ground that, inasmuch as the
business of hiring persons to labor within the state is not
subjected to a like tax, the equal protection of the laws secured
by the Fourteenth Amendment is thereby denied.
In
Shepperd v. Commissioners, 59 Ga. 535, approved and
followed in this case, the Supreme Court of Georgia decided that
the act of 1876, which required a license as preliminary to
carrying on this business, was not unconstitutional on this ground,
for the reason that it did not appear that hiring for internal
employment had become a business in Georgia, or was
Page 179 U. S. 276
pursued as such by any person or persons. And for the further
reason that the state could properly discriminate in its police and
fiscal legislation between occupations of similar nature but of
dissimilar tendency; between those which tended to induce the
laboring population to leave, and those which tended to induce that
population to remain.
We are unable to say that such a discrimination, if it existed,
did not rest on reasonable grounds and was not within the
discretion of the state legislature.
American Sugar Refining
Company v. Louisiana, supra, 179 U. S. 89, and
cases cited.
In fine, we hold that the act does not conflict with the
Fourteenth Amendment in the particulars named.
Counsel for plaintiff in error further contends that the
imposition of the tax cannot be sustained, because in contravention
of clause three of section eight, and clause five of section nine,
of article one of the Constitution.
Clause five of section nine provides that "no tax or duty shall
be laid on articles exported from any state." The facts of this
case do not bring it within the purview of this prohibition upon
the power of Congress, and it need not be considered as a
substantive ground of objection.
The real question is does this law amount to a regulation of
commerce among the states? To answer that question in the
affirmative is to hold that the emigrant agent is engaged in such
commerce, and that this tax is a restriction thereon.
In
Mobile County v. Kimball, 102
U. S. 702, Mr. Justice Field, delivering the opinion of
the Court, said:
"Commerce with foreign nations and among the states, strictly
considered, consists in intercourse and traffic, including in these
terms navigation and the transportation and transit of persons and
property, as well as the purchase, sale, and exchange of
commodities."
Broad as is the import of the word "commerce" as used in the
Constitution, this definition is quite comprehensive enough for our
purposes here.
These agents were engaged in hiring laborers in Georgia to be
employed beyond the limits of the state. Of course, transportation
must eventually take place as the result of such contracts, but it
does not follow that the emigrant agent was engaged
Page 179 U. S. 277
in transportation, or that the tax on his occupation was levied
on transportation.
In
McCall v. California, 136 U.
S. 104, we held that the agency of a line of railroad
between Chicago and New York, established in San Francisco for the
purpose of inducing passengers going from San Francisco to New York
to take that line at Chicago, but not engaged in selling tickets
for the route or receiving or paying out money on account of it,
was an agency engaged in interstate commerce. But there, the
business was directly connected with interstate commerce, and
consisted wholly in carrying it on. The agent was the agent of the
transportation company, and he was acting solely in its
interests.
So in
Norfolk & Western Railroad Company v.
Pennsylvania, 136 U. S. 114, it
was ruled that a tax imposed by a state on a corporation engaged in
the business of interstate commerce, as described, for the
privilege of keeping an office in the state, was a tax on commerce
among the states.
On the other hand, it was held in
Nathan v.
Louisiana, 8 How. 73, that a broker dealing in
foreign bills of exchange was not engaged in commerce, but in
supplying an instrument of commerce, and that a state tax on all
money or exchange brokers was not void as to him as a regulation of
commerce.
In
Paul v.
Virginia, 8 Wall. 168,
75 U. S. 183,
it was decided that issuing a policy of insurance was not a
transaction of commerce, and it was said:
"The policies are simple contracts of indemnity against loss by
fire, entered into between the corporations and the assured for a
consideration paid by the latter. These contracts are not articles
of commerce in any proper meaning of the word. They are not
subjects of trade and barter offered in the market as something
having an existence in value independent of the parties to them.
They are not commodities to be shipped or forwarded from one state
to another and then put up for sale."
Again, in
Hooper v. California, 155 U.
S. 648,
155 U. S. 655,
it was held that a section of the Penal Code of California making
it a misdemeanor for a person in that state to procure insurance
for a resident in the state from an insurance company not
incorporated
Page 179 U. S. 278
under its laws, and which had not complied with its laws
relative to insurance, was not a regulation of commerce. MR.
JUSTICE WHITE there adverts to the real distinction on which the
general rule and its exceptions are based,
"and which consists in the difference between interstate
commerce or an instrumentality thereof on the one side, and the
mere incidents which may attend the carrying on of such commerce on
the other. This distinction has always been carefully observed, and
is clearly defined by the authorities cited. If the power to
regulate interstate commerce applied to all the incidents to which
said commerce might give rise and to all contracts which might be
made in the course of its transaction, that power would embrace the
entire sphere of mercantile activity in any was connected with
trade between the states, and would exclude state control over many
contracts purely domestic in their nature."
The imposition of this tax falls within the distinction stated.
These labor contracts were not in themselves subjects of traffic
between the states, nor was the business of hiring laborers so
immediately connected with interstate transportation or interstate
traffic that it could be correctly said that those who followed it
were engaged in interstate commerce, or that the tax on that
occupation constituted a burden on such commerce.
Nor was the imposition in violation of section 2 of Article IV,
as there was no discrimination between the citizens of other states
and the citizens of Georgia.
Judgment affirmed.
MR. JUSTICE HARLAN dissented.
