Raley & Bros. v. Richardson , 154 Ga. 140 ( 1922 )

Hill, J.

(After stating the foregoing facts.) It is insisted by the plaintiffs who come within Class B, and whose business was partly interstate and partly intrastate, that the judgment of the court below dissolving the injunction as to them was error, for the reason that the imposition of a license tax against brokers who represent non-resident principals is a tax on interstate business, and is therefore void. It is argued that the tax act under review is directed against all “ merchandise brokers ” residing within the State of Georgia, whether they represent exclusively non-resident principals, or whether they represent both non-resident and resident principals; and that the plaintiffs in error in Class B represent both non-resident and resident brokers, and that the tax is against all the business which plaintiffs do, and that the act does not distinguish between business done for non-resident principals and that done for resident principals. Therefore it is argued that the license tax by the State on that part of plaintiffs’ business which is done for non-resident principals is a tax on interstate commerce, and therefore void, although they do represent some resident principals.

In the case of Kehrer v. Stewart, 117 Ga. 969 (44 S. E. 854), it was held: “One who is subject to a specific occupation tax by reason of his conducting, for another, a domestic business within this S’tate, is not rendered exempt from such tax because he also conducts for the same principal other business which is not subject to State taxation.” In delivering the opinion of the court in that case Chief Justice Simmons said: " Where property has been brought into a State and has - become itself subject to taxation ' therein, its sale in such State is not commerce between the States, but is purely intrastate. ‘While it is exclusively the province of Congress to regulate commerce between the several States, and to protect the same from hostile State legislation, yet when .products are shipped from one State and lodged in another, there to be offered for sale in open market, the business of selling them there is no longer interstate commerce, but assumes a domestic character and becomes subject to the laws of taxation of force in the State where such business is pursued. The property involved in the conduct of this business, having become intermingled with the general mass of property in this State, has itself become subject to taxation there; and, upon principle, the business of selling it is alike taxable in that jurisdiction. Singer Mfg. Co. v. Wright, 97 Ga. 114, 122. Coal shipped from Pennsylvania to New Orleans and there put up for sale c had come to its place of rest, for final disposal or use, and was a commodity in the market of New Orleans. It might continue in that condition for a year or two years, or only for a day. It had become part of the general mass of property in the State, and as such it was taxable/ Such a tax, when not discriminating against goods the product of other States, is not a regulation of interstate commerce. Brown v. Houston, 114 U. S. 622. See also Emert v. Missouri, 156 U. S. 296. . . When goods are brought from one State into another to be offered for sale, and are commingled with the property of the latter, their sale is not interstate commerce, and the power of the Federal government protects them only to the extent of preventing discriminating State legislation which imposes burdens on such goods because of their origin. The statute here involved does not make any discrimination against packing-house products brought in from other States, but imposes the tax upon all agents of packing-houses, foreign or domestic, doing business in this State, whether they deal in products of this or of other States. Petitioner, as managing agent, is conducting 'two kinds of business. One of these has to do with interstate commerce, and can not be taxed by the State; the other is domestic, and is subject to State taxation.” The Kehrer case was taken to the Supreme Court of the United States, and the judgment of the Supreme Court of Georgia was there affirmed. Kehrer v. Stewart, 197 U. S. 60 (25 Sup. Ct. 403, 49 L. ed. 663). See also Duncan v. State, 105 Ga. 457 (30 S. E. 755).

The principle ruled in the Kehrer case was followed in. Smith v. Clark, 122 Ga. 528 (50 S. E. 480). Mr. Justice Lamar, in delivering the opinion of the court in that case, said: “ Smith as agent of a packing-house was engaged at the same time in two classes of business, one taxable, the other non-taxable. The State statute could not operate to impose a tax upon him for the interstate business, and the interstate clause of the constitution of the United States did not operate to relieve him from liability for tax on the intrastate business. On this branch of the case allegations of the petition were substantially the same as those passed upon in Kehrer v. Stewart, 117 Ga. 969, 25 Sup. Ct. R. 403. It affirmatively appears that meat stored in the warehouse in Augusta was sold in large quantities to customers in Georgia. This was intrastate business, and when he engaged therein Smith became subject to the tax imposed by paragraph 21, section 2, of the tax act of 1902. He could not relieve himself of this liability because he also sold goods to customers in South Carolina. . . The statute makes no discrimination between resident and nonresident agents. It imposes no burden upon one that is not imposed upon all others similarly situated, but acts uniformly upon all persons coming within its terms.”

The tax act of 1921 (sec. 2, par. 30) places the tax upon all those coming within its provisions, and taxes both residents and non-residents alike who are doing an intrastate business. Therefore we are of the opinion that there is no unjust discrimination against the plaintiffs. Nor does it deny them the equal protection of the laws. Kehrer v. Stewart, 197 U. S. 60, 61 (supra). The State has authority to place a tax on all businesses within the State, and this is doubtless what the legislature intended by the tax act of 1921. The petition in the present case, with reference to Class B, admits that the plaintiffs are doing an intrastate or domestic business; and taking that to be true on demurrer, we think that the imposition of the tax on those coming within Class B is legal.

From the foregoing authorities we are of the opinion that if goods are shipped into Georgia by a non-resident and are not sold when shipped into the State, but are stored and afterwards sold; or if goods are purchased by the brokers within the State and sold within the State, in either event this is intrastate, or domestic, business, and is subject to the tax which the legislature has imposed by the act of 1921, and that the legislature did not intend to impose a tax or burden upon interstate business, over which subject Congress alone has jurisdiction. Art. 1, sec. 8, par. 3, Constitution United States (Civil Code, 1910, § 6644).

It .will be noted in this connection that plaintiffs cite the case of Stockard v. Morgan, 185 U. S. 27 (22 Sup. Ct. 576, 46 L. ed. 785), the first headnote of which is as follows: “Giving to the statute of Tennessee the same meaning that was given it by the Supreme Court of that State, which this court is bound to do, it is held that it violates the interstate commerce clause of the constitution of the United States.”

From the foregoing we reach the conclusion that the court did not err in granting the injunction, so far as it related purely to interstate business; and that he did not err also in refusing to enjoin the collection of the tax on business which was purely domestic or intrastate.

Judgment affirmed.

All the Justices concur, except Gilbert, J„ absent, and Sines, J., disqualified.