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21, 1871 (16 Stat. at L. 419, chap. 62), pro- The court of claims is not bound by speviding for contracts of the board of public cial rules of pleading. The main purpose is works, it was distinctly provided that all to arrive at and adjudicate the justice of alcontracts should be in writing and signed by leged claims against the United States. the parties making the same. And it was United States v. Burns, 12 Wall. 246-254, 20 held that this statute requires contracts to L. ed. 388–390; United States v. Behan, 110 be actually signed, and that mere entries on U. S. 338-347, 28 L. ed. 168–171, 4 Sup. Ct. the journals of the board would not satisfy Rep. 81. the statute. Barnard v. District of Colum- On the whole record we find no error of bia, 127 U. S. 409-411, 32 L. ed. 207, 8 Sup. law to the prejudice of the District. Ct. Rep. 1202.
Judgment affirmed. But, under the statute (June 16, 1880) now under consideration, the intention is
(197 U. S. 60) manifest to permit the court of claims to FRANK E. KEHRER, Piff. in Err., adjudicate claims for all work done by the
V. order and direction of the commissioners,
ANDREW P. STEWART. and accepted by them for the use, purpose, and benefit of the District. For this purpose Constitutional law-state taxation of local this is a remedial statute, and it is intended managers of foreign packing houses-into permit parties to have an adjudication up- fringement of commerce clause equal on their demands where the District had protection of the lau:s. been benefited by work actually done under the order and direction of the commission- | 1. The tas of $200 upon resident managing ers and duly accepted. And the findings of
agents of nonresident meat-packing houses fact show that the claimant was only per
which is imposed by Georgia act of Decem
ber 21, 1900, regardless of the fact that the mitted to recover for work so performed and greater portion of the business may be inaccepted. As we have said, this right of re- terstate in its character, does not conflict covery might not revive claims for work with the commerce clause of the Federal Con. completed under former contracts, but here
stitution, where the tax is construed by the the finding is that the new agreement ap
highest state court to apply only to the busi
ness of selling to local customers from the plied to a distinct subject-matter, and not to
stock of original packages shipped into the work covered by and performed under the state without a previous sale or contract to original agreement. We find no error in the sell, and kept and held for sale in the orjudgment of the court of claims in this re- dinary course of trade, and this domestic
business is not shown to be a mere incident gard. And so as to various sums awarded
to the interstate business. under findings of fact, establishing that
2. The equal protection of the laws is not more work was made necessary by reason of denied a managing agent of a nonresident the change of grade on North Carolina ave. meat-packing house by the imposition, under nue by the commissioners in 1874, the change Georgia act of December 21, 1900, of a llo of grade making it necessary to further
cense tax on the domestic business conducted
by him, since such act applies to managing grade Third street and to do work for that
agents of both domestic and foreign houses.* purpose. The findings show that this was 3.
The obligation of the contract of employdone by the direction of the commissioners, ment, by a nonresident meat-packing house, of and upon terms mutually agreed upon. Un
a resident managing agent at a weekly wage, der finding XIV., where the work is found
is not unconstitutionally impaired by the im
position upon him, under Georgia act of Denot to have been done under the original
cember 21, 1900, of a license tax of $200 contract, it is found that it was admitted by
upon the domestic business carried on by the defendant to be correct, and is work of him. which the District has received the full bene
[No. 152.j fit. So, as to other findings to which exceptions are made, there is no dispute that Argued January 24, 25, 1905. Decided the work was actually done to the satisfac
February 27, 1905. tion of the commissioners upon terms agreed upon and the work duly accepted.
N ERROR to the Supreme Court of the As we construe the statute, we think it State of Georgia to review a judgment affords ample authority to grant relief upon which affirmed, on a second writ of error, a the facts found, which findings are conclu- judgment of the City Court of Atlanta, sussive upon us.
taining a demurrer to an amended petition It is further urged by counsel for the gov- in an action to recover back a license tax imernment that the pleadings are not suffi- posed on a resident managing agent of a cient to authorize the judgment, but we nonresident meat-packing house. Affirmed. think that, under the original petition and See same case below, on first writ of er. various amendments thereto, the court was ror, 115 Ga. 184, 41 S. E. 680; on second: authorized to grant the relief adjudged. writ of error, 117 Ga. 969, 44 S. E. 854.
*Ed. Note.-For cases in point, see vol. 10,. Cent. Dig. Constitutional Law. S 687.
Statement by Mr. Justice Brown: and until sold were stored and preserved
This was an action by Kehrer against the and remained the property of the firm. tax collector of the county of Fulton to re- 1. It was admitted by the supreme court cover back a tax of $200, with interest and of Georgia, in its opinion, and by both parcosts, paid to Stewart under protest, such ties hereto, that a tax upon the seller of tax having been assessed against him under goods is a tax upon the goods themselves the general tax law of the state, of December (Brown v. Maryland, 12 Wheat. 419, 6 L. 21, 1900, which provided that there shoulded. 678; Welton v. Missouri, 91 U. S. 275, be assessed and collected “upon all agents of 23 L. ed. 347), and that a tax upon goods packing houses doing business in this state, sold in another state, delivered to a common $200 in each county where said business is carrier, and consigned to the purchaser in carried on.” Petitioner charged the law to the state of Georgia, was an illegal interferbe a violation of the 14th Amendment. ence with interstate commerce.
Caldwell v. Defendant demurred to the petition, and North Carolina, 187 U. S. 622, 47 L. ed. this demurrer being overruled, a writ of er- 336, 23 Sup. Ct. Rep. 229; Norfolk & W. R. ror was taken from the supreme court, Co. v. Sims, 191 U. S. 441, 48 L. ed. 254, which reversed the judgment of the court be- 24 Sup. Ct. Rep. 151; Stone v. State, 117 low in overruling the demurrer. 115 Ga. Ga. 292, 43 S. E. 740. It was therefore 184, 41 S. E. 680. Plaintiff thereupon held that the tax, so far as applied to meats amended his petition, insisting that the tax sold in Chicago, and shipped to the petidenied him due process of law as well as the tioner in Georgia for distribution, could not equal protection of the law, impaired the ob- be supported; but that so far as the petiligation of his contract with the firm, and tioner was engaged in the business of selling was also in conflict with the commerce directly to customers in Atlanta, he was enclause of the Constitution of the United gaged in carrying on an independent busiStates. The defendant demurred to the ness as a wholesale dealer, and was liable to amended petition. The court sustained the the tax. demurrer and the supreme court affirmed its This decision was correct. In carrying on action. 117 Ga. 969, 14 S. E. 854.
the domestic business, petitioner was indis
tinguishable from the ordinary butcher, who Mr. Alexander W. Smith for plaintiff slaughters cattle and sells their carcasses,
and in principle it made no difference that in error. Mr. John C. Hart for defendant in error.
the cattle were slaughtered in Chicago and their carcasses sent to Atlanta for sale and
consumption in the ordinary course of trade. Mr Justice Brown delivered the opinion Upon arrival there they became a part of of the court:
the taxable property of the state. It made This case arose upon the following state
no difference whence they came and to whom of facts:
they were ultimately sold, or whether the Nelson Morris & Co., citizens of Illinois, domestic and interstate business were carwere engaged, in the city of Chicago, in the ried on in the same or different buildings. business of packing meats for sale and con- In this particular the case is covered by that sumption, and also had a place of business of Brown v. Houston, 114 U. S. 622, 29 L. in Atlanta, Georgia, where they sold their ed. 257, 5 Sup. Ct. Rep. 1091, wherein it products at wholesale, having in their em
was held that coal mined in Pennsylvania ploy several clerks and helpers, one of and sent by water to New Orleans, to be whom was the petitioner, who was employed sold in open market there on account of as chief clerk and manager at a salary of the owners in Pennsylvania, became in$25 per week. The firm did not have any termingled with the general property of where within the state of Georgia any pack-the state, and liable to taxation under its ing house for slaughtering, dressing, curing, laws, although it might have been after packing, or manufacturing the products of arrival sold from the vessel on which the any animals for food or commercial use, but transportation was made, without being took orders, which were transmitted and landed, and for the purpose of being taken filled at Chicago, the meats sent to Atlanta, out of the country on a vessel bound to a and there distributed in pursuance of such foreign port. The same principle was aporders. Certain meats were also shipped plied in Emert v. Missouri, 156 U. S. 296, from Chicago to Atlanta without a previous 39 L. ed. 430, 5 Inters. Com. Rep. 68, 15 sale or contract to sell. These were stored Sup. Ct. Rep. 367, in which a license tax upin the Atlanta house of the firm in the orig-on peddlers of goods, which made no disinal packages, and were kept and held for tinction between residents and products of sale, in the ordinary course of trade, as do the state and of those of other states, was mestic business. They were offered for sale sustained. To the same effect is Howe Mach. to such customers as might require them, 'Co. v. Gage, 100 U. S. 676, 25 L. ed. 754.
The case is readily distinguishable from 472, 33 L. ed. 409, 2 Inters. Com. Rep. 726, that of Crutcher v. Kentucky, 141 U. S. 47, 10 Sup. Ct. Rep. 161. 35 L. ed. 649, 11 Sup. Ct. Rep. 851, wherein So, if the stock of a transportation coma state law requiring a license from agencies pany be taxed by taking as a basis of assessof foreign express companies was held to be ment such proportion of its capital stock as a regulation of interstate commerce, so far the number of miles of railroad over which as applied to a corporation of another state its cars are run within the state bear to the engaged in interstate business, although as whole number of miles over which its cars incidental thereto it did some local business are run throughout the United States, such by carrying goods from one point to another assessment does not impinge upon the power in the state of Kentucky. The court ob- of Congress. served that while the local business was Pullman's Palace Car Co. v. Pennsylvania, probably quite as much for the accommoda- 141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. tion of the people of the state as for the ad- Rep. 595, 11 Sup. Ct. Rep. 876. The case is vantage of the company, this did not obvi- still simpler if the tax be imposed in terms ate the objection to the tax; that the regu- upon the domestic commerce seeing that the lations as to license and capital stock were corporation is free to abandon the business imposed as conditions on the companies car- taxed if it sees fit. Pullman Co. v. Adams, rying on the business of interstate com- 189 U. S. 420, 47 L. ed. 877, 23 Sup. Ct. Rep. merce, which was manifestly the principal 494; Allen v. Pullman's Palace Car Co. 191 object of its organization. “These regula-U. S. 171, 48 L. ed. 134, 24 Sup. Ct. Rep. 39. tions are clearly a burden and a restriction The only difficulty in this case arises from upon that commerce. Whether intended as the fact that the tax is laid not in terms upsuch or not, they operate as such. But on the domestic business, nor upon the gross taxes or license fees in good faith imposed receipts or profits which might be apporexclusively on express business carried on tioned between interstate and domestic busiwholly within the state would be open to no ness, but is a gross sum imposed upon the such objection.”
managing agent of packing houses, regardThe same doctrine was applied to tele- less of the fact that the greater portion of graph companies in Leloup v. Mobile, 127 U. the business may be interstate in its charS. 640, 32 L. ed. 311, 2 Inters. Com. Rep.acter. This contingency, however, is met by 134, 8 Sup. Ct. Rep. 1380, wherein a general | the case of Osborne v. Florida, 164 U. S. license tax upon the telegraph company was 650, 41 L. ed. 586, 17 Sup. Ct. Rep. 214, held to affect its entire business, interstate wherein a license tax imposed upon express as well as domestic or internal, and was un companies doing business in Florida had constitutional. This case, however, must be been construed by the supreme court of that read in connection with the Postal Teleg. state as applying solely to business of the Cable Co. v. Charleston, 153 U. S. 692, 38 company done within the state, and not to L. ed. 871, 4 Inters. Com. Rep. 637, 14 Sup. | its interstate business. Accepting this conCt. Rep. 1094, wherein we held that a license struction of the state statute as in reality tax upon a telegraph company on business part of the statute itself, we held that it did done exclusively within the state, and not not in any way violate the Federal Constiincluding any business done to or from tution. The statute was sustained, notpoints without the state, and not including withstanding the fact that 95 per cent of any business done for the government of the the business was interstate in its character, United States, was an exercise of the police and only 5 per cent consisted of carrying power, and not an interference with inter- goods and freight between points within the state commerce. In line with this case is state of Florida. Crutcher v. Kentucky, 141 that of Ratterman v. Western U. Teleg. Co. U. S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851, 127 U. S. 411, 32 L. ed. 229, 2 Inters. Com. was distinguished as one which prohibited Rep. 59, 8 Sup. Ct. Rep. 1127, in which a the agent of a foreign express company from percentage tax assessed upon receipts of tel carrying on business at all in that state egraph companies partly derived from inter without first obtaining a license from the state commerce and partly from commerce state. Said the court: “It has never been within the state, and which were capable of held, however, that when the business of the separation, but were returned and assessed company which is wholly within the state is in gross, and without separation or appor- but [not! a mere incident to its interstate tionment, was held invalid in proportion to business, such fact would furnish any obthe extent that such receipts were derived stacle to the valid taxation by the state of from interstate commerce, but valid as ap- the business of the company which is enplied to receipts from messages within the tirely local. So long as the regulation as state. To the same effect is Western U. to the license or taxation does not refer to, Teleg. Co. v. Alabama Bd. of Assessment and is not imposed upon, the business of the ( Tl'estern U. Teleg. Co. v. Scay), 132 U. S.'company which is interstate, there is no interference with that commerce by the state has the right to classify occupations, and statute.”
to impose different taxes upon different ocSo, in the case under consideration, it was cupations. Such has been constantly the expressly held by the supreme court of practice of Congress under the internal reveGeorgia that that part of the Nelson Morris nue laws. Cook v. Marshall County, 196 U. & Company's business which consisted in S. 261, 275, 25 Sup. Ct. Rep. 233, 49 L. ed. shipping goods to Atlanta to fill orders pre- 471. What the necessity is for such tax, and viously received, the goods being delivered upon what occupations it shall be imposed, as in accordance with such orders, was inter-well as the amount of the imposition, are exstate commerce, not subject to taxation with clusively within the control of the state leg. in the state, and that, so far as applied to islature. So long as there is no discriminathat business, the tax was void. Accepting tion against citizens of other states, the this construction of the supreme court, we amount and necessity of the tax are not think the act, so far as applied to domestic open to criticism here. business, is valid. The record does not show 3. The argument that the tax impairs the what proportion of such business is inter- obligation of a contract between the petistate and what proportion is domestic, al- tioner and Nelson Morris & Company is though it is conceded that most of the busi- hardly worthy of serious consideration. The ness is interstate in its character. If the power of taxation overrides any agreement of amount of domestic business were purely an employee to serve for a specific sum. His nominal, as, for instance, if the consignee of contract remains entirely undisturbed. a shipment made in Chicago, upon an order There was no stipulation for an employment filled there, refused the goods shipped, and for a definite period; and if there were, it the only way of disposing of them was by is inconceivable that the state should lose sales at Atlanta, this might be held to be this right of taxation by the fact that the strictly incidental to an interstate business, party taxed had entered into an engagement and in reality a part of it, as we held in with his employer for a definite period. The Crutcher v. Kentucky, 141 U. S. 47, 35 L. tax is an incident to the business, and probed. 649, 11 Sup. Ct. Rep. 851; but if the ably might, under the terms of their conagent carried on a definite, though a minor, tract, be charged up against the employer part of his business in the state by the sales as one of the necessary expenses of carrying of meat there, he would not escape the pay- it on. ment of the tax, since the greater or less The judgment of the Supreme Court of magnitude of the business cuts no figure in Georgia is affirmed. the imposition of the tax. There could be no doubt whatever that, if the agent carried on his interstate and domestic business in
(197 U. S. 135) two distinct establishments, one would be
UNITED STATES, Petitioner, subject and the other would not be subject to the tax, and in our view it makes no dif- MORRIS WHITRIDGE and Richard J. ference that the two branches of business are White, Trading as Whitridge, White, & carried on in the same establishment. The Company. burden of proof was clearly upon the plaintiff to show that the domestic business was a mere incident to the interstate business.
Duties-value of invoice coin-reliquidation 2. The act in question does not deny to
by Secretary of the Treasury. the petitioner the equal protection of the The reliquidation by the Secretary of the Treaslaws, as the tax is imposed alike upon the
ury of the entry of imported gunnies at the managing agent both of domestic and of for- exchange value of the invoice rupee, which eign houses. In its first opinion in this case is also its value as a fraction of a pound, the supreme court held that the tax was a
where that value differs by more than 10 per vocation or occupation tax, and that it was
cent from the value of the pure metal there
in, as proclaimed by him at the beginning of not designed to apply to every agent or em
the quarter year, is authorized by the proployee of the company, but only to the man- viso to the act of August 27, 1894 (28 Stat. aging or superintending agent, who is the at L. 509, 552, chap. 349, U. S. Comp. Stat. alter ego of the principal by whom he is 1901, p. 2375), $ 25, which empowers him to
order the reliquidation of any entry at a employed. There is no discrimination in
different value from that so proclaimed by favor of the agents of domestic houses, and,
him, upon satisfactory evidence that the value while we may suspect that the act was pri- in United States currency of the foreign marily intended to apply to agents of ultra money specified in the invoice was, at the state houses, there is no discrimination upon
date of consular certification of the invoice, the face of the act, and none, so far as the
at least 10 per cent more or less than the
value proclaimed during the quarter. record shows, upon its practical administration. As we have frequently held, the state
Argued January 27, 30, 1905. Decided Feb- | that the latter rate should have been taken, ruary 27, 1905.
and directed a reliquidation on that footing.
The collector appealed to the circuit court ON N WRIT of Certiorari to the United and then to the circuit court of appeals,
States Circuit Court of Appeals for the both of which sustained the board of apFourth Circuit to review a decree which af- praisers. 129 Fed. 33. The United States firmed a decree of the Circuit Court for the then obtained a writ of certiorari from this District of Maryland, sustaining the deci- court. The question is whether the Secresion of the board of general appraisers that tary of the Treasury had power to order the Secretary of the Treasury was not au- reliquidation at the rate of 32 cents. thorized to reliquidate an entry of imported There is, to be sure, a preliminary quesmerchandise at the exchange value of the in- tion as to the conclusiveness of the Secrevoice rupee where that differed by 10 per tary's action under the statute. Technically cent from that of the value of the pure it does not appear that his decision was not metal therein, as proclaimed by him at the based on a finding as to the metal value of beginning of the quarter year. Reversed.
the rupee; that is to say, as to the value on The facts are stated in the opinion. April 19, 1900, in fractions of a gold dollar, See same case below, 129 Fed. 33.
of the silver contained in the coin. If the Assistant Attorney General McReynolds decision were based on such a finding we and Solicitor General Hoyt for petitioner. may assume that it would not be open to re
Messrs. Albert Comstock, William R. view. United States v. Klingenberg, 153 U. Sears, Aldis B. Browne, Howard T. Wald S. 93, 38 L. ed. 647, 14 Sup. Ct. Rep. 790. en, and Page, McCutcheon, & Knight for re- But the greater part, at least, of the arguspondents.
ment was made on a different assumption,
which, in view of our conclusion, we shall Mr. Justice Holmes delivered the opinion adopt. We do so the more readily because, of the court:
upon the public and well-known facts, it is Whitridge, White, & Co., the respondents, not to be supposed that the imagined find. on June 18, 1900, imported from India cering as to the value of silver was made, and tain gunnies, invoiced in rupees. The in- the policy of the Treasury Department to voice contained a certificate from the Ameri- adopt the exchange value of rupees was wellcan consui, dated April 19, 1900, that the known and publicly declared. It would not exchange value of the rupee at that date be consistent with the honor of the governwas 32 cents, estimated in United States ment to take the exchange value and then gold dollars. For the purpose of ascertain to cover itself from correction, if it was ing the ad valorem duties under the act of wrong, by suggesting that it had gone upon July 24, 1897 (30 Stat. at L. 151, chap. 11, a different ground, when that ground could U. S. Comp. Stat. 1901, p. 1663), schedule not have been taken by any one knowing the J., clause 341, in July, 1900, the collector of prices of the time. There is another arguthe port of Baltimore estimated the value of ment for the conclusiveness of the Secrethe merchandise at the date of the consular tary's action which is so closely connected certificate by converting the invoice value with the merits that we shall not separate into dollars, taking the rupees at 32 cents. it from our general discussion of the act. The importers entered protest and the col- The power of the Secretary depends on lector reliquidated the entry, taking the the construction of the act of August 27, rupee at 20.7 cents. The Secretary of the 1894 (28 Stat. at L. 509, 552, chap. 349, § Treasury, on June 6, 1901, wrote that satis-25, U. S. Comp. Stat. 1901, p. 2375). It factory evidence had been produced to him is argued for the respondents that the Secrethat the value of the rupee was 32 cents at tary must derive his power from the proviso, the date of the consul's certificate, and di- if from anything, that the value dealt with rected a reliquidation at that rate. The in this section is the same thing throughout, collector of the port reliquidated accordingly and being declared to be that of the pure on June 12, 1901. The importers (respond-metal of the coin in the body of the section, ents) protested, and the matter was sub- must be the same in the proviso, and that mitted to the board of general appraisers in New York. Act of June 10, 1890 (26
†“That the value of foreign coin as expressed Stat. at L. 137, chap. 407, $ 14, U. S. Comp. shall be thať of the pure metal of such coin of
in the money of account of the United States Stat. 1901, p. 1931). The board found that standard value; and the values of the standard the exchange value of the rupee at the date coins in circulation of the various nations of of certification was 32 cents, but that the the world shall be estimated quarterly by the metal value was 20.7 cents, as estimated by Director of the Mint, and be proclaimed by the the Director of the Mint and proclaimed by the passage of this act, and thereafter quarterly
Secretary of the Treasury immediately after the Secretary of the Treasury for the quar
on the first day of January, April, July, and ter year beginning April 1, 1900, and ruled ' October in each year. And the values so pro