Dissenting Opinion: Brewer, Brown, JJ.

is allotted to any circuit." Did not this court, when it framed this paragraph, understand what the statute had declared to be the meaning of the words "justice of a circuit?" If the power belonged to all the justices of the court, either independently of the rule or by virtue of the first paragraph, why in this second paragraph mention the justice of the circuit? I confess my inability to see any reason therefor.

Hence I am forced to the conclusion that if the order of Mr. Justice White, who was not the justice of the eighth circuit, is to be construed as a command in respect to bail, it was beyond the scope of the rule. I think, however and in this I must also differ from the majority that, reasonably construed, it may be taken as a supersedeas, the power to grant which is unquestioned, and a reference of the matter of bail to the trial judge.

Indeed, the conclusion reached by the court seems to work out this curious result, that one judge, by virtue of his power to allow a writ of error, can command another judge to perform the ministerial duty of approving a bail bond. Suppose a criminal case is tried by a justice of this court while holding the Circuit Court, can it be that the circuit judge, exercising the power given to him by the first paragraph of this rule, can allow a writ of error, and couple with it a command to the circuit justice to approve a bail bond against his judgment of the propriety of letting to bail, and such command be enforced by a writ of mandamus from this court? I submit the query without further comment.

I am authorized to say that MR. JUSTICE BROWN concurs in these views.

MR. JUSTICE WHITE took no part in the decision of this case.

Statement of the Case.

EMERT v. MISSOURI.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 120. Argued and submitted December 14, 1894. - Decided March 4, 1895.

A statute of a State, by which peddlers of goods, going from place to place within the State to sell them, are required, under a penalty, to take out and pay for licenses, and which makes no discrimination between residents or products of the State and those of other States, is not, as to peddlers of goods previously sent to them by manufacturers in other States, repugnant to the grant by the Constitution to Congress of the power to regulate commerce among the several States.

Machine Co. v. Gage, 100 U. S. 676, approved and followed.

THIS was an information, filed July 27, 1889, before a justice of the peace in the county of Montgomery and State of Missouri, for a misdemeanor, by peddling goods without a license, in violation of a statute of the State, contained in chapter 137, entitled "Peddlers and their licenses," of the Revised Statutes of Missouri of 1879, the material provisions of which are copied in the margin,' and which is reënacted as chapter 125 of the Revised Statutes of 1889.

1 SEC. 6471. Whoever shall deal in the selling of patents, patent rights, patent or other medicines, lightning rods, goods, wares or merchandise, except books, charts, maps and stationery, by going from place to place to sell the same, is declared to be a peddler.

SEC. 6472. No person shall deal as a peddler without a license; and no two or more persons shall deal under the same license, either as partners, agents or otherwise; and no peddler shall sell wines or spirituous liquors.

SEC. 6473. Every license shall state the manner in which the dealing is to be carried on, whether on foot, or with one or more beasts of burden, the kind of cart or carriage, or, if on the water, the kind of boat or vessel to be employed.

SEC. 6476. Any person may obtain a peddler's license by application to the collector of the county in which he intends to carry on his trade, by paying the amount levied on such license.

SEC. 6477. There shall be levied and paid, on all peddlers' licenses, a state tax of the following rates: First, if the peddler travel and carry his goods on foot, three dollars for every period of six months; second, if one or more horses or other beasts of burden, ten dollars for every period of six months; third, if a cart or other land carriage, twenty dollars for every

Statement of the Case.

The information alleged that the defendant on June 26, 1889, in that county, "did then and there unlawfully deal in the selling of goods, wares and merchandise, not being books, charts, maps or stationery, by going from place to place, in a cart or spring wagon with one horse, to sell the same, and did then and there, while going from place to place to sell said goods, wares and merchandise aforesaid, unlawfully sell one sewing machine to David Portucheck, without then and there having a license as a peddler, or any other legal authority to sell the same; against the peace and dignity of the State."

The defendant pleaded not guilty, and was adjudged to be guilty, and sentenced to pay a fine of fifty dollars, and costs. He appealed to the circuit court of the county; and in that court the parties, for the purpose of dispensing with evidence, agreed in writing, signed by their attorneys, that the case might be decided by the court on the following agreed statement:

"1st. That for more than five years last past the Singer Manufacturing Company has been, and still is, a corporation duly organized under the laws of the State of New Jersey, and a citizen of that State.

"2d. That on and prior to June 26, 1889, E. S. Emert, defendant, was in the employ of said Singer Manufacturing Company on a salary for his services, and at said time, in

period of six months; fourth, if in a boat or other river vessel, at the rate of one dollar per day for any period not less than five days; and such license may be renewed, at the expiration of the first license, for any period not. greater than six months, on payment of fifty cents a day, the number of days to be specified in such license. Any county court may, by an order of record, require all peddlers doing business in their county to pay a license tax, not greater than that levied for state purposes.

SEC. 6478. Every person who shall be found dealing as a peddler, contrary to law or the terms of his license, shall forfeit, if a foot peddler, the sum of ten dollars; on one or more beasts of burden, twenty-five dollars; in a cart or other land carriage, fifty dollars; in a boat or other vessel, one hundred dollars.

SEC. 6479. Every peddler shall, upon the demand of any sheriff, collector, constable, or citizen householder of the county, produce his license, and allow the same to be read by the person making the demand; and, in default thereof, shall forfeit the sum of ten dollars.

Statement of the Case.

pursuance of said employment, was engaged in going from place to place in said Montgomery county, Missouri, with a horse and wagon, soliciting orders for the sale of Singer sewing machines, having with him in said wagon a certain New Singer Sewing Machine, which, on said day, he offered for sale to various persons at different places in said county; and that on said day the defendant did find a purchaser for said machine, and did sell and deliver the same to David Portucheck in said county.

"3d. That said Singer machine in question was manufactured by said Singer Manufacturing Company at its works in the State of New Jersey, and that said sewing machine belonged to and was the property of said company, and that it was forwarded to this State by said company, and by it delivered to the defendant as its agent for sale on its account, and said machine was sold on account of the said manufacturing company; that said machine was of the value of fifty dollars; that the defendant had no peddler's license at said time."

The court adjudged that the defendant was guilty as charged in the information, and that he pay a fine of fifty dollars, and costs. The defendant moved for a new trial, because the facts in the agreed statement constituted no offence; and because the statute on which he had been charged and convicted, being chapter 137 of the Revised Statutes of 1879, was in contravention of section 8 of article 1 of the Constitution of the United States, and void in so far as it affected him. The motion for a new trial, as well as a motion in arrest of judgment, was overruled; and the defendant, upon the ground that a constitutional question was involved, and assigning as errors the same causes as in his motion for a new trial, appealed to the Supreme Court of the State, which affirmed the judgment. 103 Missouri, 241.

The defendant sued out this writ of error, which was allowed by the presiding judge of that court, upon the ground that there "was drawn in question the validity of a statute of or an authority exercised under said State, on the ground of their being repugnant to the Constitution of the United States, and the decision was in favor of such their validity."

Argument for Plaintiff in Error

Mr. Lawrence Maxwell, Jr., and Mr. Seneca N. Taylor for plaintiff in error.

The plaintiff in error submits that the transaction in which he was engaged and for which he was punished was interstate commerce. If So, it was not competent for the State of Missouri to tax him for the privilege of making the sale. The Singer Manufacturing Company is not contesting the right of the State of Missouri to tax its property within that State as property in accordance with the rules governing the taxation of other property, and as the coal was taxed in Brown v. Houston, 114 U. S. 622. It simply insists that under the Federal Constitution it has the right, in the absence of congressional prohibition, not only to carry the goods which it manufactures in New Jersey into the State of Missouri, but to sell them in that State, and that the State of Missouri has no power to prevent it from making such sales or to tax it for the privilege.

I. The tax complained of is not a tax upon the property of the Singer Company in Missouri. The company is taxed upon its property in that State under the general revenue laws of the State. This is an additional tax for the privilege of selling its machines in a certain way.

It is sometimes said that a license tax is in effect a tax upon property, but it is submitted that the statement is not accurate. A tax upon property, as property, is assessed with reference to the amount and value of the property; but the statute complained of takes no account of the amount or value of property. The tax is in terms and effect a license tax for the privilege of selling or offering to sell goods during a certain time in a certain way, to wit, "by going from place to place and selling the same," without reference to the amount or value of the goods carried or sold.

With respect to the particular machine in question the agreed statement of facts shows nothing more than that it was manufactured by the Singer Company at its works in New Jersey, and was forwarded as a matter of interstate commerce to Emert, as its agent in Missouri, to be sold by him on