Wiley Blount Rutledge

“ It is no answer, as appellee contends, that the tax is neither prohibitive nor discriminatory on the face of the ordinance; or that it applies to all local distributors doing business as appellant has done. Not the tax in a vacuum of words, but its practical consequences for the doing of in erstate commerce in applications to concrete facts are our concern. [23] To ignore the variations in effect which follow from application of the tax, uniform on the face of the ordinance, to highly different fact situations is only to ignore those practical consequences. ”

“ The drummer or salesman whose business requires him to move from place to place, exhausting his market at each periodic visit or conducting his business in more sporadic fashion with reference to particular localities, would find the cumulative burden of the Richmond type of tax eating away all possible return from his selling. ”

“ The problem comes down therefore to whether the state or municipal legislative bodies in framing their taxing measures to reach interstate commerce shall be at pains to do so in a manner which avoids the evils forbidden by the commerce clause and puts that commerce actually upon a plane of equality with local trade in local taxation, not as is said to a question of whethr interstate trade shall bear its fair share of the cost of local government, the benefit and protection of which it enjoys on a par with local business. ”

“ As the Court said, it is difficult to see how the New York tax could bear in any case more heavily upon out-of-state operators than upon local ones, apart from possible multiple state taxation or the threat of it such as, among other considerations, [18] was thought to forbid the levy and collection of the tax in Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365, 117 A.L.R. 429. The incidence of the tax was the same upon both types of transactions, as was its amount ”

“ Washington, supra, we put aside any suggestion that 'solicitation,' when conducted regularly and continuously within the state, so as to constitute a course of business, may not be 'doing business' just as is the making of delivery, at any rate for the purpose of focusing a tax which in other respects would be sustainable. ”

“ The itinerant out-of-state merchant could pay the New York sales tax and survive, according to its general effect, without any disadvantage as compared with local merchants, itinerant or established, resulting from the tax excepting only the possibility of multiple state taxation.↑ Cf. ”

“ The presumption on the facts before us is the other way.↑ Obviously a total exclusion of commerce is itself the most effective form of discrimination in favor of the local merchant who is so situated that he can continue in the business.↑ See, for the part played by itinerants in our history, Wright, Hawkers and Walkers in Early America (1927) . Peddlers were discriminated against in favor of town merchants as early as 1700. ”

“ Indeed, in view of that fact and others of common knowledge, we cannot be unmindful, as our predecessors were not when they struck down the drummer taxes, that these ordinances lend themselves peculiarly to creating those very consequences or that in fact this is often if not always the object of the local commercial influences which induce their adoption. Provincial interests and local political power are at their maximum weight in bringing about acceptance of this type of legislation. ”

“ The American Garment Company employs solicitors who travel from City to City throughout the country and obtain orders for this particular garment, which is sold for $2.98, and the solicitor receives from the purchaser a down payment usually sufficient to pay the commission of the solicitor, and the order is then sent to the home office of the American Garment Company and the garment is then sent through the United States mails C.O.D. for the balance to the purchaser. ”

“ And to point to either of those possibilities is only to say, in a different way, that the tax is highly variable in its incidence and effects with reference to the manner in which one organizes his business and especially in respect to its location and spread in relation to state lines. It was exactly these variations, when they bear with undue burden upon commerce that crosses state lines, which the commerce clause was intended to prevent.
We are not unmindful that large enterprise which 'does business' by sending solicitors regularly and continuously into several states, cf. ”

“ After hearing before a police court justice she was fined $25 and costs and ordered to secure a license. An appeal was noted to the Hustings Court of the City of Richmond, where a trial de novo was had upon the agreed statement of facts set forth in the margin. [3] The Hustings Court held the ordinance applicable to appellant in the circumstances disclosed by the facts and was of the opinion that, so applied, it was not in conflict with the commerce clause. Accordingly the court found the appellant guilty and fined her five dollars and costs. ”

“ And this effect will be extended to more substantial and regular operators, particularly those whose product is of highly limited or special character and whose market in any single locality for that reason or others cannot be mined more than once in every so often. ”

“ As there stated, in the Shelby County case the Court was cognizant of the rapidly growing tendency of states and municipalities to lay license taxes upon drummers 'for the purpose of embarrassing this competition with local merchants,' and following the Shelby County decision nineteen such taxes were held invalid.↑ Chapter 10, § 23, Fichmond City Code (1939) .↑ 'The American Garment Company, which is owned and operated by John V. Rosser, with its main office at 3617 12th Street, N.E., Washington, D.C., is engaged in the manufacture and sale of certain ladies' garments. ”