Croy v. Obion County

51 L.R.A. 254, 104 Tenn. 525

• Court: Tennessee Supreme Court
• Decided: May 5, 1900
• Status: Published

Opinion

Caldwell, J.

This is an action of replevin, brought by Prank O. Oroy against W. W. Ep-person, a constable of Obion County, to recover the possession of certain floor-sweeping broom brushes, which the latter had seized as the property of the former, under a distress warrant issued for the collection of a tax for the privilege of selling articles of that kind in that county.

The Circuit Judge tried the case without a jury, and rendered judgment in favor of the defendant ; and from that, judgment the plaintiff prosecutes an appeal in error.

The plaintiff rests his claim to relief upon the contention that he was engaged exclusively in interstate commerce, and, consequently, that he was projected, by the commerce clause of the Federal Constitution, from State taxation upon his business.

Only one witness was examined on the trial, and that was the plaintiff, who testified in his own behalf. He admitted that he had sold numerous articles, like those involved in this case, to different citizens of Obion County, Tennessee, and that he had paid no tax for the privilege of so doing. He said that he made the sales by sample and as agent of a firm that manufactured tbe brushes at Sedalia, Mo.; that be went from bouse to bouse and took “orders,” wbicb “were just memoranda of names and addresses of parties wbo agreed to buy tbe brushesthat at bis convenience be, in bis own name, and without giving tbe name of any customer, sent an order for “forty-six brushes and handles” to one of bis principal’s distributing agents at Paducah, Ky.; that bis order was there filled, and all of tbe articles shipped to him, in bis own name, as •an individual, at Union City, in a single box; that be opened tbe box, took out tbe brushes, and delivered them, one by one, indiscriminately, at tbe bouses of those wbo bad agreed to buy, all the brushes being alike, and no one of them having been ordered or shipped for any particular purchaser.

Tbe testimony thus delivered fails to disclose transactions in interstate commerce in tbe legal sense. Tbe statement that tbe plaintiff was acting as tbe agent of a nonresident principal, as in Harford’s case, 91 Tenn., 669, and • in Scott’s case, 98 Tenn., 254, is discredited, and the plaintiff shown to have been engaged in interstate commerce in bis own behalf, as in Kimmell’s case, ante, page 184, by bis narration of tbe manner in wbicb he ordered, received, sold, and delivered tbe brushes. He did not communicate tbe names of bis customers to his alleged principal, nor take any order from them to that principal, but only took memoranda of their addresses for his own use; he ordered nothing in the name of any customer, but everything in his own individual name, and in that name alone the shipment was made; he ordered no particular article for any particular customer, but all of them, as a whole, for himself, and with a view to an indiscriminate delivery to his customers, one by one, as he might go to their houses. All these are characteristics of a business done for one’s self, rather than of a business conducted by an agent for a principal.*

Furthermore, if the plaintiff had, in fact and in good faith, made all of these transactions and done all of these things as agent of a nonresident principal, he would, nevertheless, have been without the protection of the commerce clause of the Federal Constitution and subject to taxation by the State, because the sales were not of original packages, but of distinct parts of an original package after it had been broken, and they, by force of law, had become parts of the general property within the State. Kimmell v. State, ante, p. 184; Austin v. State, 101 Tenn., 563.

For the two reasons stated the judgment of the Circuit Court is affirmed. No opinion is expressed as to the right of the plaintiff to test his liability for this tax by an action of replevin.