Where orders are given for goods sold in a state by an agent of
a person employed to solicit them in another state, and the
purchaser is not bound to pay for the goods until delivery and
unless according to sample, the goods sent specifically to the
customer in fulfillment of such order are, until actually
delivered, within the protection of the commerce clause of the
Constitution, and a municipal ordinance requiring a license fee for
the solicitation of order for delivering goods not of the parties'
own manufacture is void as an interference with interstate commerce
against such an agent.
The facts are stated in the opinion.
Page 203 U. S. 509
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case comes here upon a writ of error to the superior court
of Pennsylvania, an appeal to the supreme court of the state having
been disallowed by the last-named court. The superior court
affirmed a conviction of the plaintiff in error for violating an
ordinance of the Borough of Sunbury, which made it unlawful to
solicit orders for, sell, or deliver at retail, either on the
streets or by traveling from house to house, foreign or domestic
goods, not of the parties' own manufacture or production without a
license, for which a large fee was required. In the Court of
Quarter Sessions, where the plaintiff in error was convicted, the
case was heard upon an agreed statement of facts. Upon these facts,
the plaintiff in error asked for a ruling that his acts were done
in carrying on interstate commerce, and that the ordinance was void
as to him, under Clause 3, Section 8, Article I, of the
Page 203 U. S. 510
Constitution, the commerce clause, and saved his rights. The
Fourteenth Amendment also was relied upon, but it is unnecessary to
state details concerning that.
The following is a shortened statement of the facts agreed. An
Ohio corporation employed an agent to solicit in Sunbury retail
orders to the company for groceries. When the company had received
a large number of such orders, it filled them at its place of
business in Columbus, Ohio, by putting up the objects of the
several orders in distinct packages, and forwarding them to the
defendant by rail, addressed to him "For A. B.," the customer, with
the number of the order also on the package, for further
identification. The company ultimately kept the orders, but it kept
no book accounts with the customers, looking only to the defendant.
The defendant alone had authority to receive the goods from the
railroad, and when he received them, he delivered them, as was his
duty, to the customers, for cash paid to him. He then sent the
money to the corporation. The customer had the right to refuse the
goods if not equal to the sample shown to him when he gave the
order. In that or other cases of nondelivery, the defendant
returned the goods to Columbus. No shipments were made to the
defendant except to fill such orders, and no deliveries were made
by him except to the parties named on the packages. In the case of
brooms, they were tagged and marked like the other articles,
according to the number ordered, but they then were tied together
into bundles of about a dozen, wrapped up conveniently for
shipment. The defendant had no license, but relied upon the
invalidity of the ordinance, as we have said.
If the acts of the plaintiff in error were done in the course of
commerce between several states, the law is established that his
request for a ruling was right, and that he should have been
discharged.
Robbins v. Shelby County Taxing District,
120 U. S. 489,
120 U. S. 497;
Leisy v. Hardin, 135 U. S. 100;
Caldwell v. North Carolina, 187 U.
S. 622. It will be seen from the insertion of the
statement concerning the brooms that a ground
Page 203 U. S. 511
relied upon by the prosecution to avoid that conclusion was that
the goods, or at least this part of them, were not in the original
packages when delivered, and that therefore the case did not fall
within the decisions last cited, but rather within
Austin v.
Tennessee, 179 U. S. 343;
May v. New Orleans, 178 U. S. 496, and
Cook v. Marshall County, 196 U. S. 261. In
other words, it was contended that the brooms, before they were
sold, had become mingled with, or part of, the common mass of goods
in the state, and so subject to the local law. But the doctrine as
to original packages primarily concerns the right to sell within
the prohibiting or taxing state goods coming into it from outside.
When the goods have been sold before arrival, the limitations that
still may be found to the power of the state will be due, generally
at least, to other reasons, and we shall consider whether the
limitations may not exist, irrespective of that doctrine, in some
cases where there is no executed sale. Hence, the prosecution,
whatever its assumption on the point last mentioned, sought to show
that there was no sale until the goods were delivered and the cash
paid for them. The superior court contented itself with the
suggestion that the contract would have been satisfied by the
delivery of articles corresponding to sample, although bought at
the next door. The argument submitted to us goes farther, and
affirms that the order was not accepted, and did not bind the
corporation until the delivery took place.
The answer to the latter of the two positions just stated is
simple. The fair meaning of the agreed fact that the orders were
given to agents employed to solicit them is that the company
offered the goods, and that the orders were acceptances of offers
from the other side. If there were the slightest reason to doubt
that the contracts were made with the company through its
authorized agent at the moment when the orders were given, which we
do not perceive that there is, certainly the contrary could not be
assumed in order to sustain a conviction. It is for the prosecution
to make out its case. We may mention here, in parentheses, that, of
course, it
Page 203 U. S. 512
does not matter to the question before us that the contract was
made in Pennsylvania.
Brennan v. Titusville, 153 U.
S. 289. The other suggestion, that the company would
have been free to deliver any articles equal to sample, as well if
bought in Pennsylvania as if coming from Ohio, of course, assumes
that there was a contract. With regard to this argument, it might
be an interesting question whether the shipments described amounted
to authorized appropriations of the goods to the contracts,
notwithstanding the fact that the deliveries were to be only for
cash -- but we are not required to go into such niceties. The
decisions already in the books go as far as it is necessary for us
to go in order to decide this case.
"Commerce among the several states" is a practical conception,
not drawn from the "witty diversities" (Yelv. 33) of the law of
sales.
Swift & Co. v. United States, 196 U.
S. 375,
196 U. S.
398-399. The brooms were specifically appropriated to
specific contracts in a practical, if not in a technical, sense.
Under such circumstances, it is plain that, wherever might have
been the title, the transport of the brooms for the purpose of
fulfilling the contracts was protected commerce. In
Brennan v.
Titusville, 153 U. S. 289,
pictures were sold by sample, as the brooms were here, and although
the pictures were consigned to the purchasers directly, the
railroad collecting the price, there was no discussion of the
question whether the title had passed. In
American Express Co.
v. Iowa, 196 U. S. 133,
196 U. S. 143,
that question was referred to only to be waived. In
Caldwell v.
North Carolina 187 U. S. 622, the
pictures were consigned to the defendant, an agent, as here, with
the additional facts that the pictures and frames were sent in
large packages, which were opened by the agent on their arrival,
and that the pictures, then for the first time, were put into their
proper frames, and, for all that appears, then for the first time
appropriated to specific purchasers. In the court below all the
judges agreed that the title did not pass until delivery. 127 N.C.
521, 526, 527. This Court intimated
Page 203 U. S. 513
nothing to the contrary. On the special verdict, it well might
be that the sale was by sample, as in
Brennan v.
Titusville. It was decided that the intervention of an agent
made no difference in the result. The superior court distinguished
that case as one that necessarily involved interstate commerce
because it called for the skill of the seller, but no such fact
appears in the case or was referred to as a ground of decision, and
there is no sufficient warrant for assuming it to be true.
Some argument was made, to be sure, that even if the defendant
was engaged in interstate commerce when he delivered the goods,
still the ordinance bound him.
American Steel & Wire Co. v.
Speed, 192 U. S. 500, was
especially relied upon. But that decision did not modify the cases
that we have cited. It dealt with a case where a mass of nails and
iron wire was collected at Memphis from other states, by a
manufacturer, for all purposes -- some of the goods to be sold on
the spot, some ultimately to be forwarded to purchasers in other
states, but no package being consigned to or intended for any
special customer, or free from the chance of being sold by a new
bargain in Tennessee. Under such circumstances, the goods were
liable to taxation in that state. The distinction between that case
and the present does not need further emphasis. In view of the many
decisions upon the matter, we deem further argument unnecessary to
show that the judgment below was wrong.
Judgment reversed.