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[264 U.S. 150, 151] Messrs. George H. Terriberry, Joseph M. Rault, and W. W. Young, all of New Orleans, La., for plaintiff in error.
Mr. W. Catesby Jones, of New Orleans, La., for defendant in error.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
The city of New Orleans brought this action in a Louisiana state court to recover from defendant (plaintiff in error here) a license tax of $ 400, imposed for the year 1922, upon its business of steamship agent. The demand was resisted on the ground that the tax was in contravention of the commerce clause of the Constitution of the United States (article 1, 8, cl. 3), in that it was an interference with and tax upon interstate and foreign commerce. Defendant was regularly employed as agent for four steamship lines, under a contract fixing its compensation on the basis of commissions, calculated upon the gross amount of freight charges collected by it for each company. In addition, defendant occasionally represented other shipowners. All were exclusively engaged in interstate or foreign commerce, and defendant's business was confined solely to representing principals so engaged in such commerce. The service rendered consisted of soliciting and engaging cargo, nominating ships for carrying it, arranging for its delivery on the wharf, issuing bills of lading under the name of shipowner or charterer, arranging for stevedores for loading and discharging cargo, collecting freight charges, paying ships' disbursements, attending to immigration service, and assisting generally in matters of local customs and regulations. [264 U.S. 150, 152] Freight moneys collected, after deducting commissions, were remitted to the owners or charterers. As such agent, defendant was authorized to solicit cargo and quote freight rates and to issue receipts in the name of its principal for cargo delivered on the wharf.
Upon these facts the trial court held that defendant's business was local in character and subject to the tax. Upon appeal, this judgment was affirmed by the state Supreme Court. 152 La. 498, 93 South. 751.
The state Supreme Court thus stated the necessity and character of the agent's duties:
This court has had frequent occasion to consider and determine the effect of taxes of the same general character as that here involved, and for present purposes we find it unnecessary to do more than refer to the general and well-established rule, which is that a state or state municipality is powerless to impose a tax upon persons for selling or seeking to sell the goods of a nonresident within the state prior to their introduction therein, Stockard v. Morgan,
Ficklen v. Shelby County,
The decision rests largely upon the elements above stated, as was pointed out by Mr. Justice Brewer in Brennan v. Titusville,
The case is near the border line and has been deemed exceptional. Crew Levick Co. v. Pennsylvania,
REVERSED.
Mr. Justice BRANDEIS dissenting, with whom Mr. Justice HOLMES concurs.
From the multitude of cases, this general rule may be educed. 1 The validity of a state tax under the commerce clause does not depend upon its character or classification. It is not void merely because it affects or burdens interstate commerce. The tax is void only if it directly burdens such commerce, or (where the burden is indirect) if the tax discriminates against or obstructs interstate commerce. In this case there is no claim that interstate commerce is discriminated against or obstructed. The contention is that the tax imposes a direct burden. Whether the burden should be deemed direct depends upon the character of plaintiff's occupation and its relation to interstate transactions.
The occupation tax laid by New Orleans is fixed in amount; business being classified into several grades according to the amount of business done. The Texas Transport & Terminal Company falls within the highest grade-those whose receipts exceed $100,000 a year-and thus it is taxed $ 400 a year. The business is what is called a steamship agency. The main office is in New York City. It has branches in New Orleans and in five other ports of the United States. It is a wholly independent concern. No shipowner has an interest in it; and it has no interest in any ship which it serves. Some [264 U.S. 150, 156] of these are regular ocean liners; others are casual tramp ships. The services rendered include, among other things, arranging with independent stevedore concerns for discharging and loading cargoes; arranging with independent dealers for bunkering, that is, buying fuel and oil; making provision for fitting ships for any special or peculiar cargo; making provision for compliance with the immigration and customs laws; and paying the ship's disbursements. For these, and the other services of soliciting cargoes, arranging for their delivery, and collecting payment for freight, the company is compensated. Usually the compensation is measured by a percentage on the gross freight charges collected. Sometimes it is a lump sum for each ship served. These comprehensive services require, for their efficient performance, the employment of a steamship agency, or its equivalent, whatever the home port of the ship or the principal place of its owner's business.
It is settled law that interstate commerce is not directly burdened by a tax imposed upon property used exclusively in interstate commerce, Transportation Co. v. Wheeling,
The New Orleans tax is obviously not laid upon property moving in interstate commerce. Nor does it, like a gross receipts tax, lay a burden upon every transaction. It is simply a tax upon one of the instrumentalities of interstate commerce. It is no more a direct burden than is the tax on the other indispensable instrumentalities; upon the ship; upon the pilot boat, which she must employ; upon the wharf at which she must load and unload; upon the office which the owner would have to hire for his employees, if, instead of engaging the services of an independent contractor, he had preferred to perform those duties himself. The fact that, in this case, the services are performed by an independent contractor having his own established business, and the fact that the services rendered are not limited to soliciting, differentiate this case from McCall v. California,
[ Footnote 1 ] Compare Thomas Reed Powell, 'Indirect Encroachment on Federal Authority by the Taxing Powers of the States,' 31 Harv. Law Rev. 321, 572, 721, 932; 32 Harv. Law Rev. 234, 374, 634, 902.
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Citation: 264 U.S. 150
No. 141
Decided: February 18, 1924
Court: United States Supreme Court
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