APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney; Lurton took no part in the decision of this case
MR. JUSTICE PITNEY, after making the foregoing statement, delivered the opinion of the court.
With respect to the business conducted in Russell County, the decree of the District Court is not now directly under review; but, at any rate, it was clearly correct under Crenshaw v. Arkansas, 227 U.S. 389. With respect to the other counties, the correctness of the decision, so far as the commerce clause is concerned, seems to us equally clear under Emert v. Missouri, 156 U.S. 296.
But it is argued that the courts cannot properly sustain a statute which in direct terms applies to all commerce, by restricting it to cases of actual interference with interstate dealings. To quote from the brief: "All such laws as will necessarily affect interstate commerce when it arises are void. We do not have to await actual results on actual commerce to pronounce them void. . . . And, of course, a statute of this character, which is void as a whole, from its unity of character, will as readily be so declared in a case in which only intrastate commerce may be actually involved as otherwise. The lower court was
thus clearly in error in limiting the invalidity of the statute to the dealing in Russell County."
This argument, we think, misses the point. The statute under consideration does not in direct terms or by necessary inference manifest an intent to regulate or burden interstate commerce. Full and fair effect can be given to its provisions, and an unconstitutional meaning can be avoided, by indulging the natural presumption that the legislature was intending to tax only that which it constitutionally might tax. So construed, it does not apply to interstate commerce at all. The statute provides for a license or occupation tax. Normally, as the averments of the bill sufficiently show, the occupation may be and is conducted wholly intrastate, and free from any element of interstate commerce. The fact that, as carried on in Russell County, a like occupation is conducted with interstate commerce as an essential ingredient, is wholly fortuitous.
Nor has the tax that "unity of character" upon which the argument necessarily depends. The cases cited in support of the insistence that the act must be adjudged totally void because if applied in Russell County it would burden interstate commerce are readily distinguishable. In United States v. Reese, 92 U.S. 214, 221, there was a penal statute couched in general language broad enough to cover wrongful acts without as well as within the constitutional inhibition, and it was held that the court could not reject the unconstitutional part and retain the remainder, because it was not possible to separate the one from the other. In Trade-Mark Cases, 100 U.S. 82, 99, the court upon the same principle declined to sustain in part a trade-mark law, so framed as to be applicable by its terms to all commerce, by confining it to the interstate commerce that alone was subject to the control of Congress. In Leloup v. Port of Mobile, 127 U.S. 640, 647, the court held a general license tax, imposed by the State
of Alabama upon the business of a telegraph company in part interstate and in part internal, to be unconstitutional, and held that since the tax affected the whole business without discrimination it could not be sustained with respect to that portion of the business that was internal and therefore taxable by the State. To the same effect are Norfolk &c. R.R. Co. v. Pennsylvania, 136 U.S. 114, 119; Crutcher v. Kentucky, 141 U.S. 47, 62; Galveston &c. Ry. Co. v. Texas, 210 U.S. 217; Western Union Telegraph Co. v. Kansas, 216 U.S. 1, 27. In Williams v. Talladega, 226 U.S. 404, 419, there was a state license tax that operated without exemption or distinction upon the privilege of carrying on a business, a part of which was that of an essential governmental agency constituted under a law of the United States. It was held that the tax necessarily included within its operation this part of the business, and since this was unconstitutional the whole tax was rendered void.
The statute now under consideration differs materially, in that it deals separately with the business as conducted in each county of the State, and provides for separate taxes to be laid for each county. And the facts as averred in the bill of complaint show that with respect to all of the counties in which appellant does business, excepting only the County of Russell, there is no element of interstate commerce. In each county there is a store or regular place of business, from which all of the local agents for the same county are supplied with sewing machines and appurtenances that are to be taken into the rural districts for sale or renting, and all transactions that enter into the sale or renting are completely carried out within a single county.
It would be going altogether too far to say that appellant, being properly taxable, and without the least interference with interstate commerce, in twenty-nine counties of the ...