Sheppard v. Musser , 89 S.W.2d 222 ( 1935 )

I wish to enter my respectful, but most earnest dissent from all expressions in the majority opinion which purport to carry the protection of interstate commerce law beyond the delivery of the cigarettes to Texas consignees.

I think the case of Austin v. Tennessee, 179 U.S. 343, 21 S. Ct. 132,138, 45 L. Ed. 224, is in point here. Tennessee had passed a law prohibiting the sale of cigarettes in that state. The case, as stated by Justice Brown for the court, was as follows: "The defendant purchased from the American Tobacco Company, at its factory, in Durham, North Carolina, a lot of cigarettes manufactured by that company at that factory, and thereby it put into pasteboard boxes, in quantities of ten cigarettes to each box; that each of these boxes, known as packages was separately stamped and labelled, as prescribed by the United States revenue statute; that after defendant's purchase the American Tobacco Company piled upon the floor of its warehouse, in Durham, North Carolina, the number of boxes or packages sold, and, having done so, notified the Southern Express Company to come and get them, and said company, by its agent, took them from the floor and placed them in an open basket already and previously in the possession of the Southern Express Company, and in that basket had them transported by express to the defendant's town in Tennessee, and there an agent of the same express company took the basket to defendant's place of business and lifted from it onto the counter of the defendant the lot of detached boxes or packages of cigarettes, and thereupon took a receipt and departed with the empty basket. Thereafter the defendant sold one of these boxes or packages without breaking it, and for that sale he stands convicted."

Justice Brown, upon this state of the case, proceeds: "And yet we are told that each one of these packages is an original package, and entitled to the protection of the Constitution of the United States as a separate and distinct importation. We can only look upon it as a discreditable subterfuge, to which this court ought not to lend its countenance. If there be any original package at all in this case we think it is the basket, and not the paper box."

The Tennessee statute prohibited rather than taxed the sale of cigarettes. But in the case of Cook v. Marshall County, 196 U.S. 261,25 S. Ct. 233, 49 L. Ed. 471, it was a question of taxation; the only difference being that in that case the state of Iowa imposed an occupation tax rather than a stamp or sales tax upon the cigarettes sold in Iowa. Cook ordered his cigarettes from the American Tobacco Company, at St. Louis, Mo., and they came to him in interstate commerce. He interposed the interstate commerce defense against the tax as the appellee Musser does here, and the Supreme Court of the United States upheld the tax as not being an unlawful burden upon interstate commerce. These two cases from the Supreme Court of the United States, in the humble judgment of the writer, settles the question.

In the judgment of the writer the courts, state and federal, have gone far enough, if not too far, in limiting the right of the states to manage their own affairs, and yet the majority opinion in this case goes so far as to throw the mantle of interstate commerce protection, not only over the appellee, Musser, and his agents in taking orders, shipping and delivering the cigarettes to the purchasers, but even goes so far as to adjudicate the rights of the consignees who are not complaining parties in this suit and seeks to protect such shipments even after they have come to rest in the hands of consignees.

That the appellee, a citizen of Texas, formulated this plan, and established his business outside the state, so that he could ship cigarettes into the state in interstate commerce, for the sole purpose of defeating the state tax, is admitted and fully established in this record. That he had the legal right to do this the writer does not question. But I do most earnestly contend that, when he had delivered his goods to the consignee, the interstate character of the business is at an end and the state then has the right to its tax of 3 cents per package. I cite, also, as supporting this dissent, Brown v. Houston, 114 U.S. 622,5 S. Ct. 1091, 29 L. Ed. 257; Emert v. Missouri, 156 U.S. 296, 15 S. Ct. 367,39 L. Ed. 430; May v. New Orleans, 178 U.S. 496, 20 S. Ct. 976,44 L. Ed. 1165; Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S. Ct. 575,78 L. Ed. 1141.

In the forceful language of Mr. Justice Brown in Austin v. Tennessee, supra, the writer is of the opinion that under the pleading and the facts in this case the interstate defense of Musser, in so far as it applies to the cigarettes after they are delivered in Texas, is "a discreditable subterfuge, to which this court ought not to lend its countenance."