In re Petition of Wilson for Writ of Habeas Corpus

10 N.M. 32

• Court: New Mexico Supreme Court
• Decided: January 29, 1900
• Docket: 838
• Status: Published

Opinion

PARKER, J.

Upon the foregoing record this court discharged the petitioner and it now remains for the court to express its reasons for holding this statute unconstitutional and void.

The scope and effect of the commerce clause of the Constitution of the United States has been a much mooted question before the courts, both State and Federal, ever since early in the century, and the number of cases involving this important provision have constantly increased, down to the present time. Without attempting to review or even cite the numerous cases involving the question under consideration, we think there are1 certain principles firmly established by the Supreme Court of the United States which are decisive of this case and which may be stated as follows:

1. Commerce between a State and Territory is “commerce among the several states” within the meaning of the Constitution. Stoutenburgh v. Hennick, 129 U. S. 141.

2. The right to conduct interstate commerce includes the right to sell in original packages the goods which are thé subject of such commerce, free from State regulations. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U. S. 100; Schollenberger v. Penn., 171 U. S. 1.

3. A State statute, imposing a license tax upon the conduct of interstate commercé is a regulation of such commerce and invalid. Leloup v. Mobile, 127 U. S. 640; Lyng v. Michigan, 135 U. S. 161; Crutcher v. Kentucky, 141 U. S. 47.

4. A license may hot be demanded of, a foreign corporation or person engáged in interstate commerce for the privilege of conducting the same, nor may the same be prohibited, notwithstanding a like tax may be exacted for domestic business covering the same articles, and notwithstanding such domestic business may be prohibited. Crutcher v. Kentucky, 141 U. S. 47; Schollenberger v. Pennsylvania, 171 U. S. 1; Powel v. Pennsylvania, 127 U. S. 678; Mugler v. Kansas, 123 U. S. 623.

5. A State may tax or license a business wholly within the State, notwithstanding the person or corporation engaged in such business may also be, either incidentally or principally, engaged in interstate business, so long as the license or tax does not refer to and is not imposed upon the business which is interstate. Osborne v. Florida, 164 U. S. 650.

6. But where a license tax is laid generally upon the conduct of business in all forms, and without distinction as to whether it is interstate or local, and where the tax which is laid upon local business can not be separated from that which is on interstate business, the whole tax is in contravention of the Constitution and void. Crutcher v. Kentucky, 141 U. S. 47; Telegraph Co. v. Alabama, 132 U. S. 473; Ratterman v. Western Union Tel. Co., 127 U. S. 411; Leloup v. Port of Mobile, 127 U. S. 640, 647; Osborne v. Florida, 164 U. S. 650, 655.

•oobstxi'utionai, license: original packages.

id. Applying the foregoing principles to the facts in this case it seems clear that section 2 of the act of the Territorial Legislature under consideration, is. in contravention of the provisions of the Constitution and void, so far as it applies to the business of the petitioner as agent of the Continental Oil Company. . The petitioner, as such agent, is engaged in..the business of buying coal oil from the producers thereof without the Terri-r tory and shipping the same into the Territory for distribution and sale. Coal oil is a recognized article of commerce, and as such entitled to the protection of the commerce clause of the Constitution. The sales of the petitioner are largely in original packages, and as such not subject to a license tax. It is true that the act provides for a like license for the sale of oil produced within the Territory, but this fact does not take the business of the petitioner, which is interstate, out of the protection of the Constitution. It is to be further observed that none of the exceptions, such as the right of inspection, the right to regulate sale in a particular way, as by auctioneers, peddlers or hawkers, or the right to regulate sales of intoxicating liquors under the “Wilson Act” (26 Stat. 213), or the right to exercise any of the police.powers which ■are conceded to the States, intervene in this case to modify the principles announced above. It appears, however, that some portion of the business of the petitioner consists of the sale of coal oil in the Territory after the original packages, in which the same is put up for sale, have been broken, and as to this portion of his business he, or his company, might be properly taxed. But section 2 of the act can not be interpreted or construed to apply to such business. The act provides in- section 5 for a license fee of twenty-five dollars from all persons whose sales amount to three thousand dollars per annum, and who are termed wholesale dealers, and a fee of one dollar from all other persons who are termed retail dealers. It may be that the petitioner is subject to the payment of the wholesale or retail dealer's tax as prescribed by the act, but as to this it is unnecessary to express any opinion. It is clear, however, that the license tax of five hundred dollars applies to some character of business other and different from that of a wholesale or retail dealer in coal oil. There being b no method furnished by section 2 of the act whereby the tax of five hundred dollars can be apportioned between the local and interstate business of the petitioner, and it not being susceptible of .construction so as to apply solely to local business, the same must be held to apply to the interstate business of the petitioner and to be, consequently, unconstitutional and void so far as it applies to the business in which the petitioner is shown to be engaged.

Mills, C. J., and McFie, J., concur.