The protection of the commerce clause of the federal
Constitution extends beyond the strict lines of contract, and
inseparable incidents of a transaction of interstate commerce based
on contract are also interstate commerce.
Where, under the contract to purchase a picture, the purchaser
has the option to take at a specified price the frame in which the
picture shall be delivered, and both picture and frame are
manufactured in and delivered from another state and remain the
property of the vendor until paid for, the sale of the frame is a
part of the original transaction and protected by the commerce
clause of the Constitution.
The imposition of a license tax for soliciting orders for
enlargements of photographs and frames on persons not having a
permanent place of business in the state and keeping such articles
as stock in trade is a regulation of commerce between the states
and void under the commerce clause of the federal Constitution,
both as to the orders for the picture itself and as to an optional
right to take at a price specified in the contract, the frame in
which the picture is delivered, and so
held as to the
license tax imposed under § 17 of the statute of March 7,
1907, of Alabama.
154 Ala. 83 reversed.
The facts are stated in the opinion.
Page 218 U. S. 126
MR. JUSTICE HOLMES delivered the opinion of the Court.
The plaintiff in error was convicted and sentenced to a fine on
a complaint for breach of an Alabama statute of
Page 218 U. S. 127
March 7, 1907. By § 17 of that act, a license tax was
imposed on persons who did not have a permanent place of business
in the state and also keep picture frames as a part of their stock
in trade if they solicited orders for the enlargement of
photographs or pictures of any character, or for picture frames,
whether they made charge for such frames or not, or if they sold or
disposed of picture frames. The Chicago Crayon Company, having its
only place of business in Chicago, and being engaged in the
business of making and enlarging portraits from photographs, and in
the manufacturing of picture frames, solicited orders in Alabama
without paying the license tax. These orders were given in writing
for a portrait of the size and kind wanted, specified the price,
cash on delivery, and continued: "I understand that my portrait is
to be delivered in an appropriate frame, which this contract
entitles me to accept at factory price." The agent of the company
gave back a written acceptance, repeating the other terms of the
bargain, and adding: "All portraits are delivered in appropriate
frames, which this contract entitled the purchaser to accept at
factory prices," with particulars purporting to show that these
prices were from one third to one-half the retail or usual ones.
The plaintiff in error, who also had no permanent place of business
in Alabama and had paid no license tax, was an agent of the
company, who delivered pictures and frames, and collected for them,
in pursuance of the agreed plan. The pictures and frames were sent
to the agent, and remained the property of the company until paid
for and delivered. On these facts, the Supreme Court of Alabama,
while admitting that the dealings concerning the pictures were
commerce among the states, sustained the conviction on the ground
that the sale of the frames was a wholly local matter. 154 Ala.
83.
No doubt it is true that the customer was not bound to take the
frame unless he saw fit, and that the sale of it
Page 218 U. S. 128
took place wholly within the State of Alabama, if a sale was
made. But, as was hinted in
Rearick v. Pennsylvania,
203 U. S. 507,
203 U. S. 512,
what is commerce among the states is a question depending upon
broader considerations than the existence of a technically binding
contract, or the time and place where the title passed. It was
agreed that the frame should be offered along with the picture. The
offer was a part of the interstate bargain, and as it was agreed
that the frame should be offered "at factory prices," and the
company and factory were in Chicago, obviously it was contemplated,
if not agreed, that the frame should come on with the picture. In
fact, the frames were sent on with the pictures from Chicago, and
were offered when the pictures were tendered, as part of a
transaction commercially continuous, and one at prices generically
fixed by the contract for the pictures, and by that contract
represented to be less than retail or usual prices, in
consideration, it is implied, of the purchase already agreed to be
made. We are of opinion that the sale of the frames cannot be so
separated from the rest of the dealing between the Chicago company
and the Alabama purchaser as to sustain the license tax upon it.
Under the decisions, the statute, as applied to this case, is a
regulation of commerce among the states, and void under the
Constitution of the United States. Art. I, § 8.
Robbins v.
Shelby County Taxing District, 120 U.
S. 489;
Caldwell v. North Carolina,
187 U. S. 622;
Rearick v. Pennsylvania, 203 U. S. 507.
Judgment reversed.
