Commonwealth v. Disanto , 85 Pa. Super. 149 ( 1925 )

The Act of July 17, 1919, P.L. 1003, as amended by the Act of May 20, 1921, P.L. 997, does not, in my opinion, place any direct burden on foreign commerce. It is not a tax or revenue statute. It is a police measure designed to protect citizens and residents of this Commonwealth from loss at the hands of unscrupulous and dishonest venders of steamship tickets, an evil recognized by the majority opinion and referred to with much force by our Supreme Court (MESTREZAT, J.) in Com. v. Grossman, 248 Pa. 11, 17. Its provisions do not apply to railroad or steamship companies selling such transportation but only to persons, corporations, etc., not actually engaged in transporting passengers by railroad or steamship, who hold themselves out as authorized to sell steamship tickets or orders for transportation. It applies to all such dealers of steamship transportation generally, without discrimination, to domestic as well as foreign. The statute has no concern with the amount of business done by the applicant; the license fee is the same whether he sells tickets for three lines or a hundred. Its provisions are all directed to the moral character of the licensee, his fitness to conduct the business and his financial responsibility to his customers and patrons. It no more regulates or burdens foreign commerce than a statute requiring locomotive engineers to be examined and licensed by a state board before being eligible to drive or operate an engine or train of cars within a state regulates interstate commerce: Smith v. Alabama,124 U.S. 465. It is somewhat similar in scope and purpose to the regulation of insurance agents: Com. v. Vrooman, 164 Pa. 306.

In my judgment the cases relied upon by the appellant and cited in the majority opinion are distinguishable in principle from this one. They comprise cases where the state attempted to levy a tax or license fee upon a corporation or association actually engaged in interstate commerce, as in Adams Express Co. v. New York, 232 U.S. 14; Ozark Pipe Line Corp. v. Monier et al.,000 U.S. 000 (Adv. Opinions February 2, 1925, p. 210); or upon an agent employed by and directly representing such company or association, as in Crutcher v. Kentucky, 141 U.S. 47; McCall v. California, 136 U.S. 104, (see Davis v. Farmers Coöperative Co., 262 U.S. 312, 315); Texas Transport Terminal Co. v. New Orleans, 264 U.S. 150. They would be applicable here if the statute under consideration was extended so as to embrace within its provisions railroad and steamship companies engaged in interstate or foreign commerce, either directly, or as respects their employees operating branch offices or agencies on the company's account. But this statute expressly exempts such corporations actually engaged in transporting passengers. The record shows that defendant's representation of steamship companies was confined to revocable authority to sell their tickets; that he was in no sense their employee or agent in the ordinary sense of the word; but rather like a merchant who is authorized by the manufacturer of a particular brand of goods to sell his wares. Had it been proven that the defendant was the employee of a steamship company selling tickets and orders for transportation as its agent and on its account — in other words, that the company was actually carrying on the business — no license would have been required under the statute.

This case is similar in some respects to Wagner v. City of Covington, 251 U.S. 95, where an occupation tax fixed in amount was sustained, although the business taxed consisted exclusively of selling soft drinks brought in from another state, and sold in original packages. In that case Mr. Justice PITNEY said: "We have, then, a state tax upon the business of an itinerant vender of goods as carried on within the state, — a tax applicable alike to all such dealers, irrespective of where their goods are manufactured, and without discrimination against goods manufactured in other states. It is settled by repeated decisions of this court that a license regulation or tax of this nature, imposed by a state with respect to the making of such sales of goods within its borders, is not to be deemed a regulation of or direct burden upon interstate commerce, although enforced impartially with respect to goods manufactured without as well as within the state, and does not conflict with the `commerce clause.'"

It was held in Morgan's Steamship Co. v. Louisiana Board of Health, 118 U.S. 455, that the system of quarantine laws established by the statutes of Louisiana was a rightful exercise of the police power for the protection of health, which is not forbidden by the Constitution of the United States, and that the requirement that each vessel passing a quarantine station should pay a fee fixed by the statute, for examination as to her sanitary condition, and the ports from which she came, was not a tax within the meaning of the Constitution concerning tonnage tax imposed by the states.

The Supreme Court of the United States has upheld many state statutes which in so far as they affected transactions of commerce among the states, did so only indirectly, incidentally and remotely and not so as to burden or impede them. As for example, statutes requiring the examination and licensing of locomotive engineers: Smith v. Alabama, supra; N.C. St. L. Ry. v. Alabama, 128 U.S. 96; forbidding the running of freight trains within the state on Sundays: Hennington v. Georgia, 163 U.S. 299; enacting regulations affecting switching service: M.P. Ry. v. Larrabee F.M. Co., 211 U.S. 612; the Full Crew Acts: C.R.I. P. Ry. Co. v. Arkansas, 219 U.S. 453; heating of steam passenger cars; N.Y., N.H. H.R. Co. v. N.Y., 165 U.S. 628; requiring carriers to settle within a specified time claims for loss or damage to freight while in their possession within the state: A.C.L.R. Co. v. Mazursky, 216 U.S. 122; forbidding the delivery for shipment in interstate commerce of citrus fruits then and there immature and unfit for consumption: Sligh v. Kirkwood,237 U.S. 52 (see pp. 60, 61); requiring a license to dispose or offer to dispose, within the state, of stocks, bonds, etc.: Hall v. Geiger-Jones Co., 242 U.S. 539, (see pp. 557, 558).

I am of opinion that the same principle applies here; that the Act of 1919, supra, if it affects foreign commerce at all, does so only indirectly, incidentally and remotely and not so as to burden or impede it; that until Congress chooses to provide for the licensing of dealers in steamship tickets, the State may bona fide legislate on the subject under its police powers; that such a statute is not violative of the provisions of the federal constitution; and that the judgment should be affirmed.

PORTER, J., concurs in this dissent.