709. houses,70s photographers,709 "privilege tax,'710 scavengers,711 dealers in illuminating oils,712 tobacco dealers or buyers,713 sellers of 105 Mich. 670, 32 L. R. A. 116; City of St. Paul v. Lytle, 69 Minn. 1, 71 N. W. 703. In this case the ordinance declares that any one "who by any means, method or device loans money on personal property when the same is deposited for security or is deposited for any other purpose, is hereby defined and declared a pawnbroker for the purpose of this ordinance." The license was attacked on the ground that the definition of a pawnbroker as given was too broad. The court said: "The second point is that the first section of the ordinance is invalid for the reason that it attempts to establish a definition of a 'pawnbroker' different from the commonly understood and accepted definition of that word. It may be conceded that under authority to li cense and regulate pawnbrokers the city of St. Paul can acquire no pow. er to license and regulate some other business by merely calling it the business of pawnbroker. * But, even if the definition is broader than the ordinary meaning of the word, the ordinance would not be invalid. The attempted broader definition alone would be invalid." City of St. Joseph v. Levin, 128 Mo. 588, 31 S. W. 101; State v. Taft, 118 N. C. 1190, 32 L. R. A. 122; City of Seattle v. Barto, 31 Wash. 141, 71 Pac. 735. 708 Chicago Packing & Provision Co. v. City of Chicago, 88 Ill. 221. The power to regulate implies the power to license. The general law of the state of Illinois gives the council power to "regulate" packing houses. The court say: "Then does the power to regulate the manage ment include the power to prescribe their duties and require them to obtain a license to pursue their business on the prescribed terms? We are clearly of opinion that the power to require a license is one of the means of regulating the exercise or pursuit of this business. There are no doubt, a great variety of other means that might be adopted to accomplish the purpose but these municipalities are not restrict ed as to the means they shall employ to regulate the business. In the various illustrations of the meaning of the word 'regulate' we find among others, "To direct; to rule; to govern; to conduct.' As the language is used in reference to the power of a city or village government, we must suppose it was intended to mean that such bodies. might rule or govern this character of business. * We are, therefore, clearly of opinion that the power is conferred to require the license in this case under the * * general law." 709 State v. Schlier, 50 Tenn. (3 Heisk.) 281; City of New Orleans v. Robira, 42 La. Ann. 1098, 11 L. R. A. 141. 710 Paul v. Virginia, 75 U. S. (8 Wall.) 168. 711 Vandine's Case, 23 Mass. (6 Pick.) 187; De Lano v. Doyle, 120. Mich. 258, 79 N. W. 188; City of St. Louis v. Weitzel, 130 Mo. 600; Cavanaugh v. City of Pawtucket, 23 R. I. 102, 49 Atl. 494. 712 Standard Oil Co. v. City of Spartanburg, 66 S. C. 37. 713 See Carter v. State, 44 Ala. 29, for the definition of a "dealer in tobacco." Gundling v. City of Chica- cigarettes,714 traders,715 telegraph companies,716 those engaged in the business of "raising, grazing and pasturing sheep," and every sewing machine company selling sewing machines.718 In defining an occupation or business within the meaning of such statutes or ordinances, it is not necessary to establish the fact that the person pursued it during a protracted length of time,719 neither, on the other hand, does a single act or transaction bring a person within the statute or ordinances.720 § 408. As affected by the interstate commerce clause. In section 400 the limitations imposed by the Federal constitution upon the power of the state to impose a license fee are referred to and the principle stated that when such a license fee violates the Federal constitution it necessarily follows that it is void. The provision in the Federal constitution most frequently urged as an objection to its validity is that one vesting in Congress the exclusive power to regulate commerce between the states with foreign nations and Indian tribes and in connection with cases imposing license taxes or fees on occupations, generally speaking, drummers, peddlers and auctioneers. The early cases commencing with Osborne v. City of Mobile, 83 U. S. (16 Wall.) 479,721 decided go, 176 Ill. 340, 48 L. R. A. 230; State v. Irvin, 126 N. C. 989; Blaufield v. State, 103 Tenn. 593. one who merely drives his sheep through the county as expeditiously as possible. But, see, to the contrary, 714 Cook v. Marshall County, 119 Cache County v. Jensen, 21 Utah, Iowa, 384, 93 N. W. 372. 715 Johnson v. State, 44 Ala. 414; Weil v. State, 52 Ala. 19; City of Little Rock v. Barton, 33 Ark. 436. 716 Western Union Tel. Co. v. Village of Wakefield (Neb.) 95 N. W. 659; Mann's Choice Borough v. Western Union Tel. Co., 21 Pa. Super. Ct. 438; Western Union Tel. Co. v. City of Richmond, 26 Grat. (Va.) 1; Hod. ges v. Western Union Tel. Co., 72 Miss. 910, 29 L. R. A. 770. 717 Flanigan v. Sierra County, 122 Fed. 24; Ex parte Mirande, 73 Cal. 365; Mono County v. Flanigan, 130 Cal. 105, 62 Pac. 293. Such an ordinance does not, however, apply to 207. 718 Quartlebaum v. State, 79 Ala. 1; Baker v. State, 44 Ark. 134; New Home Sewing Mach. Co. v. Fletcher, 44 Ark. 139. 719 Johnson v. State, 44 Ala. 414. 720 Cary V. Borough of North Plainfield, 49 N. J. Law, 110; Ayrnett v. Edmundson, 68 Tenn. (9 Baxt.) 610; Wooddy v. Com., 29 Grat. (Va.) 837. 721 Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386; Pittsburgh, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421; New York L., E. & W. R. Co. v. Pennsylvania, 158 U. S. 431; Southern Exp. Co. v. Virginia, 168 by the supreme court of the United States in 1872, distinguished between the occupation itself and the business carried on, and held that the state could license an occupation although the business or a portion of it carried on by the licensee was interstate in its character. This doctrine was modified by succeeding decisions, and finally in the case of Leloup v. Port of Mobile,722 the court expressly overruled the Osborne Case, and held that where the business of a corporation or individual was that of carrying on interstate commerce, a state could not impose a license fee upon such corporation when it could not regulate or tax the business itself.723 And this general principle includes the subordinate one U. S. 705; Western Union Tel. Co. v. Village of Wakefield (Neb.) 95 N. W. 659; Tide Water Pipe Co. v. State Board of Assessors, 57 N. J. Law, 516, 27 L. R. A. 684; People v. Campbell, 74 Hun (N. Y.) 210; Com. v. Lehigh Valley R. Co., 129 Pa. 308; State v. State Board of Assessment & Equalization, 3 S. D. 338. a 722 Leloup v. Port of Mobile, 127 U. S. 640. "The question is squarely presented to us whether a state as a condition of doing business within its jurisdiction may exact a license tax from a telegraph company large part of whose business is the transmission of messages from one state to another and between the United States and foreign countries and which is invested with the powers and privileges conferred by the act of Congress, passed July 24, 1866, and other acts incorporated in Title LXV of the Revised Statutes? Can a state prohibit such a company from doing such a business within its jurisdiction, unless it will pay a tax and procure a license for the privilege? If it can, it can exclude such companies and prohibit the transaction of such business altogether. We are not prepared to say that this can be done. Ordinary occupations are taxed in various ways, and, in most cases, legitimately taxed. But 723 Ward v. Maryland, 79 U. S. (12 Wall.) 418; Western Union Tel. Co. v. Texas, 105 U. S. 460; Pensacola Tel. Co. v. Western Union Tel. Co.,. 96 U. S. 1; Moran v. City of New Orleans, 112 U. S. 69; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Philadelphia & S. Steamship Co. v. Pennsylvania, 122 U. S. 326; Ratterman v. Western Union Tel. Co., 127 U. S. 411; Western Union Tel. Co. v. Alabama State Board of Assessment, 132 U. S. 472; Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 114, reversing 114 Pa. 256; McCall v. California, 136 U. S. 104; Crutcher v. Kentucky, 141 U. S. 47. Stockard v. Morgan, 185 U. S. 27. A privilege tax imposed by a state statute upon residents of that state as merchandise brokers whose business is exclusively confined to soliciting orders from jobbers and wholesale dealers within the state as agents for non that a state cannot impose a tax upon a person engaged in soliciting orders for goods for his nonresident employer by whom such goods are to be delivered from without the state.724 Neither can a sale, by sample or otherwise, of goods owned by nonresidents and not yet brought within a state, be subjected to a state tax or resident parties, firms or corporations for goods to be shipped by such nonresident principals to such jobbers or dealers is not unconstitutional or in violation of the commerce clause of the constitution of the United States. The court in its opinion by Mr. Justice Peckham say: "The fact that the state or the court may call the business of an individual when employed by more than one person outside of the state to sell their merchandise upon commission, a 'brokerage business,' gives no authority to the state to tax such a business as complainants; the name does not alter the character of the transaction nor prevent the tax thus laid from being a tax upon interstate commerce. As was said by Mr. Justice Bradley in Robbins v. Shelby County Taxing Dist., 120 U. S. 489. "The mere calling the business of a drummer a privilege cannot make it so. Can the State Legislature make it a Tennessee privilege to carry on the business of importing goods from foreign countries? If not, has it any better right to make it a state privilege to carry on interstate commerce?' It is still a carrying on of interstate commerce whether the party is acting for one or more principals residing outside of the state and selling their goods through his procurement, acting for them as their agent." See, also, notes, 1 L. R. A. 56; 5 L. R. A. 559; 6 L. R. A. 579; 9 L. R. A. 366; 10 L. R. A. 616; 11 L. R. A. 179; 13 L. R. A. 107, and note to Stockard v. Morgan, 46 L. Ed. 785; City of Leav enworth v. Smith, 5 Kan. App. 165, 48 Pac. 924; People v. Wemple, 138 N. Y. 1, 19 L. R. A. 694, and 2 Mun. Corp. Cas. 439, 445. 724 Brennan v. City of Titusville, 153 U. S. 289, reversing Titusville v. Brennan, 143 Pa. 642; Louisiana v. Lagarde, 60 Fed. 186; In re Mitchell, 62 Fed. 576; Ex parte Hough, 69 Fed. 330; In re Tinsman, 95 Fed. 648; Stratford v. City Council of Montgomery, 110 Ala. 619; Ex parte Thomas, 71 Cal. 204; Rodgers v. McCoy, 6 Dak. 238; McClelland v. City of Marietta, 96 Ga. 749; Martin v. Town of Rosedale, 130 Ind. 109; McClellan v. Pettigrew, 44 La. Ann. 356; People v. Bunker, 128 Mich. 160, 87 N. W. 90; Richardson v. State (Miss.) 11 So. 934; Overton v. City of Vicksburg, 70 Miss. 558; State v. Caldwell, 127 N. C. 521; State v. O'Connor, 5 N. D. 629; Baxter v. Thomas, 4 Okl. 605; State v. Coop, 52 S. C. 508, 41 L. R. A. 501; City of Laurens v. Elmore, 55 S. C. 477, 45 L. R. A. 249; Hurford v. State, 91 Tenn. 669; State v. Scott, 98 Tenn. 254, 36 L. R. A. 461. A person soliciting orders for pictures to be enlarged outside the state is not subject to a privilege tax imposed by a state statute on all persons other than resident photographers who do such business. Talbutt v. State, 39 Tex. Cr. R. 64; Turner v. State, 41 Tex. Cr. App. 545, 55 S. W. 835; French v. State, 42 Tex. Cr. App. 222, 58 S. W. 1015, overruled in Saulsbury v. State, 43 Tex. Cr. App. 90, 63 S. W. 568, relying on Emert v. Missouri, 156 U. S. 296. license fee.720 Neither is a Federal franchise or right to engage in an occupation or business the subject of a license fee imposed by a state for the purpose of raising revenue.726 The law given above does not conflict with the right of a state to regulate or control, by virtue of its police power, a business or an occupation, and to charge a reasonable fee for the sole purpose of meeting the expense of such regulation or control.727 Neither does it interfere 725 Robbins v. Shelby County Taxing Dist., 120 U. S. 490; Corson v. Maryland, 120 U. S. 502; Asher v. Texas, 128 U. S. 130; Stoutenburgh v. Hennick, 129 U. S. 141; Ex parte Stockton, 33 Fed. 95; In re Spain, 47 Fed. 208, 14 L. R. A. 97; Ex parte Loeb, 72 Fed. 657; In re Lebolt, 77 Fed. 587; In re Bergen, 115 Fed. 343; State v. Agee, 83 Ala. 110; Ex parte Murray, 3 Ala. 78; Gunn v. White Sewing Mach. Co., 57 Ark. 24, 18 L. R. A. 206; McLaughlin v. City of South Bend, 126 Ind. 471, 10 L. R. A. 357; City of Ft. Scott v. Pelton, 39 Kan. 764; State v. Hickox, 64 Kan. 650, 68 Pac. 35; Simmons Hardware Co. v. McGuire, 39 La. Ann. 848; Ferraris v. Kyle, 19 Nev. 435; State v. Bracco, 103 N. C. 349; Adkins v. City of Richmond, 98 Va. 91, 47 L. R. A. 583; State v. Lichtenstein, 44 W. Va. 99. 726 Harmon v. City of Chicago, 147 U. S. 396; Postal Tel. Cable Co. v. City of Charleston, 153 U. S. 692; Postal Tel. Co. v. Adams, 155 U. S. 688. This case holds the commonly accepted doctrine, namely, that taxa. tion of commerce or any of its industries or means should be regard ed in effect as a regulation. Central Pac. R. Co. v. California, 162 U. S. 91; Southern Pac. R. Co. v. California, 162 U. S. 167; Osborne v. Florida, 164 U. S. 650, 39 Am. St. Rep. 99; State v. Butler, 71 Tenn. (3 Lea) 222. 727 In re State Freight Tax, 82 U. S. (15 Wall.) 232; Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455; City of St. Louis v. Western Union Tel. Co., 148 U. S. 92. In this connection, the general principle holds that "where the whole or any part of such collections go to defray governmental expenses it is perhaps the strongest evidence that the payment required is in fact a tax. On the other hand, where the amount contributed to the government is small and the payment required is reasonably related to the service rendered, the evidence strongly supports the conclusion that such a requirement is not a tax but is compensation for services." But see Gundling v. City of Chicago, 177 U. S. 183. In this case the court holds that a license fee sufficiently high to make it partake of a privilege tax as well as to provide means for the regulation of the business is not in violation of any portion of the Federal Constitution. Brewster v. City of Pine Bluff, 70 Ark. 28, 65 S. W. 934; State v. Glavin, 67 Conn. 29; Price v. People, 193 Ill. 114, 55 L. R. A. 588; West v. City of Mt. Sterling, 23 Ky. L. R. 1670, 65 S. W. 120; State v. Snowman, 94 Me. 99, 50 L. R. A. 544; State v. Ashbrook, 154 Mo. 375, 48 L. R. A. 265. To be valid, such a statute must come strictly within the principles laid down in the text; act of May 16, 1899, relative to a |