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amounts to the same thing. It imposes no tractor is not entitled to extra compensaadditional burden upon the contractor; in- tion therefor. deed, the findings of fact show that it great- Finding no error in the proceedings of ly decreased his burden by lessening the the Court of Claims, its decision is af. number of miles of carrying required. We firmed, think this change of service was fairly within the power reserved to the Postmaster
(196 U. S. 239) General, and the right given to him to des
WESLEY E. TRAVIS, Appt., ignate such changes in the services as the
0. public interest might require in the performance of this contract. It is true that
UNITED STATES. if these services were not within the terms of the contract, and if they were of a differ- Postoffice-mail contract-right of Postent character, the fact that they greatly de
master General to terminate. creased the burden of the contractor might not require a disallowance of the claim for This case is governed by the decision in Slavens extra services. But we think the services
v. United States, ante, p. 229. were within the contract, fairly construed,
[No. 84.] and do not entitle the contractor to extra compensation.
Argued December 7, 8, 1904. Decided Jan. In reference to the services rendered in
uary 9, 1905. Boston, required by the postmaster, between Back Bay station, in Boston, and the PPEAL from the Court of Claims to re
A Brookline postoffice, outside the limits of view a judgment dismissing a petition the city of Boston, and not within the terms to recover for the alleged wrongful terminaof the contract, it does not appear that the tion of a mail contract. Affirmed. requirement of such service was made, ex- See same case below, 38 Ct. Cl. 590. cept by the postmaster of the city of Bos- The facts are stated in the opinion. ton, who had no authority, so far as we can Mr. A. A. Hoehling, Jr., for appellant. discover, to require such service. When Mr. Joseph Stewart and Assistant Atthe claimant protested to the Postmaster torney General Pradt for 'appellee. General he was promptly relieved from the service, and another contract was made for Mr. Justice Day delivered the opinion of the performance of the same.
the court: It is said that this claim is in all re
was argued with Slavens V. spects like the one sustained by this court United States (just decided), 196 U. S. 229, in United States v. Otis, 120 U. S. 115, 30 L. 25 Sup. Ct. Rep. 229, 49 L. ed. 457. It ined. 609, 7 Sup. Ct. Rep. 449, where the con- volves the same question as to the right of tractor was allowed extra compensation for the Postmaster General to terminate a mail carrying the mails across the Hudson river, contract. The court of claims dismissed the from the Pennsylvania Railway depot at the petition. 38 Ct. Cl. 590. For the reasons foot of Cortlandt street, New York, to the stated in the opinion in the Slavens Case, depot of the same line in Jersey City, N. the judgment of the Court of Claims is af. J., when the contract required him to carry firmed. the mails only to and from the depots in New York. In the opinion in that case Mr. Justice Blatchford said: “The United
(196 U. S. 261) States directed the performance of this CHARLES P. COOK et al., Piffs. in Erry service." Presumably this was done by some one having the authority of the United
COUNTY OF MARSHALL, Iowa. States. In this case the court of claims has held, as we think rightly, that the postmas-Commerce-state regulation-original packter, having no power or authority to con
age-cigarette boxes-equal protection of tract in respect to the mail messenger serv- the laus. ice, was not the agent of the government for such service, and could not bind the gov- 1. The tax imposed on cigarette selling by ernment by his knowledge or acts in respect
Iowa Code, $ 5007, is not an invalid regula
tion of commerce as applied to sales at re thereto. Roberts v. United States, 92 U. S.
tail of packages of ten cigarettes in small 41, 48, 23 L. ed. 646, 648; Hume v. United pasteboard boxes, sealed and stamped with States, 132 U. S. 406, 33 L. ed. 393, 10 Sup. the revenue stamp, which had been shipped Ct, Rep. 134; Whitsell v. United States, 34 loose to the retailer from another state by an Ct. Cl. 5. As the additional service in this
express company which merely issued a re
ceipt in duplicate, showing the number of case was not required by the authorized
packages and the name of the consignee, the agent of the government, we think the con- packages not being separately or otherwise
addressed, since such a box can in no just The facts of the case were that the plain.
sense be considered an original package. tiff, Charles P. Cook, carried on a retail 2. The equal protection of the laws is not de- cigar and tobacco store upon premises leased
nied a retail tobacco dealer by the tax im: by him from his co-plaintiff. Cook ordered posed on cigarette selling by Iowa Code, $ 5007, because sales by jobbers and wholesal. his cigarettes of the American Tobacco Comers, in doing an interstate business with cus- pany, at St. Louis. They were delivered to tomers outside of the state, are excepted from an express company, and brought by such Its provisions.
company from St. Louis, or other places out
side of the state of Iowa, directly to the [No. 98.]
place of business of the plaintiff, in small Argued December 9, 12, 1904. Decided Jan- pasteboard boxes, containing ten cigarettes
each, each package being sealed and stamped uary 16, 1905.
with the revenue stamp. These packages IN N ERROR to the Supreme Court of the were shipped absolutely loose, and were not
State of Iowa to review a judgment boxed, baled, wrapped, or covered, nor were which affirmed a judgment of the District they in any way attached together. NothCourt of Marshall County, in that State, ing appears in the record to indicate the sustaining a demurrer to, and dismissing, a
means used in transporting these cigarettes petition for the remission of a tax imposed from the factory of the manufacturer to the on cigarette selling. Affirmed.
place of business of the retail dealer, and we See same case below, 119 Iowa, 384, 93 N. are left to infer that they were shoveled into W. 372.
and out of a car, and delivered to plaintiffs
in that condition. The packages were not Statement by Mr. Justice Brown:
separately or otherwise addressed, but at This was a petition by the owner and ten- the time they were delivered to the express ant of a certain room in the city of Mar-company the driver gave a receipt showing shalltown, Iowa, addressed to the board of
the number of packages and the name of the supervisors, for the remission of a tax of person to whom they were to be sent, re$300, imposed upon the business of selling
taining a duplicate himself. cigarettes, which business was carried on by to the plaintiffs was attacked upon two
The constitutionality of the act as applied Charles P. Cook, one of the plaintiffs in er
grounds: ror. The petition being denied, an appeal was taken to the district court, where a de, with the power of Congress to regulate com
(1) That it was an attempt to interfere murrer was interposed, which was sustained
merce between the states. by that court, and an appeal taken to the
(2) That it denied to the plaintiffs the supreme court, where the judgment of the district court was affirmed. 119 Iowa, 384, equal protection of the laws. 93 N. W. 372.
The argument of the plaintiffs is the same
as that which was pressed upon our atten. Messrs. Junius Parker, W. W. Fuller, tion a few years ago in Austin v. Tennessee, and Frank S. Dunshee for plaintiffs in er 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep.
132, that the packages of ten cigarettes were Mr. F. E. Northup for defendant in er- each the original packages in which these
cigarettes were imported from other states,
and that, under the decisions of this court Mr. Justice Brown delivered the opinion in Brown v. Maryland, 12 Wheat. 419, 6 L. of the court:
ed. 678, Leisy v. Hardin, 135 U. S. 100, 34 This case involves the constitutionality of L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. § 5007 of the Iowa Code, imposing a tax of Ct. Rep. 681, and Schollenberger v. Pennsyl$300 per annum upon every person, and vania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct.
the real property and the Rep. 757, they were entitled to the immuniowner thereof, whereon cigarettes are sold ties attaching to original packages. We reor kept for sale. The section is printed in viewed these and a large number of other full in the margin.t
cases in our opinion, and came to the confSec. 5007. Tax on sale.—There shall be as- | lected, and distributed in the same manner as sessed a tax of $300 per annum against every the mulct liquor tax, and shall be a perpetual person, partnership, or corporation, and upon lien upon all property, both personal and real, the real property and the owner thereof, with-used in connection with the business; and the in or whereon any cigarettes, cigarettes wrap- payment of such tax shall not be a bar to proseper, or any paper made or prepared for the use cution under any law prohibiting the manufacin making cigarettes, or for the purpose of beturing of cigarettes or cigarettes paper, or sell. ing filled with tobacco for smoking, are sold or ing, bartering, or giving away the same. But given way, or kept with the intent to be sold, the provisions of this section shall not apply bartered, or given away, under any pretext to the sales by jobbers and wholesalers in doing whatever. Such tax shall be in addition to all an interstate business with customers outside of other taxes and penalties, shall be assessed, col- 'the state.
clusion that these boxes were in no just that it was not legitimate to ship beer in sense original packages within the spirit of kegs of this size. So, too, in Schollenberger the prior cases, and that their shipment in v. Pennsylvania, oleomargarine transported this form was not a bona fide transaction, and sold in packages of 10 pounds weight but was merely a convenient subterfuge for was recognized as bona fide, but it was exevading the law forbidding the sale of ciga- pressly found by the jury in that case that rettes within the state. This case differs the package was an original package, as refrom that only in the fact that in the Aus- quired by the act of Congress, and was of tin Case the packages were thrown loosely such "form, size, and weight as is used by into baskets, which were shipped on board producers or shippers for the purpose of sethe train, and carried to Austin's place of curing both convenience in handling and sebusiness. These baskets, it is argued, might curity in transportation of merchandise behave been considered as the original pack-tween dealers in the ordinary course of acages.
tual commerce, and the said form, size, and This difference, however, was not insisted weight were adopted in good faith, and not upon as distinguishing the two cases in for the purpose of evading the laws of the principle. Indeed, it was admitted to be one commonwealth of Pennsylvania, said packnot of "great magnitude or seeming legal age being one of a number of similar packsignificance.” The main argument of the ages forming one consignment, shipped by plaintiffs was frankly addressed to a recon- the said company to the said defendant.” sideration of the principle involved in the While it may be impossible to define the size Austin Case, and a reinsistence upon the poor shape of an original package, the princisition there taken, that the packages in ple upon which the doctrine is founded which the cigarettes were actually shipped would not justify us in holding that any must govern, and that we cannot look to the package which could not be commercially motives which actuated such shipment, or to transported from one state to another as a the fact that ordinary importations of cigar- separate importation could be considered as ettes were made in boxes containing a large an original package. number of these so-called original packages. But it is insisted with much earnestness We have carefully reconsidered the principle that, in determining the lawfulness of sales of that case, and, without repeating the ar. in original packages, we are bound to conguments then used in the opinions, we have sider that package as original in which the seen no reason to reverse or change the articles were actually shipped, particularly views there expressed.
where Congress, for the purpose of taxation, The term "original package” is not de has prescribed a certain size of package to fined by any statute, and is simply a con- be separately stamped, and that we have no venient form of expression adopted by Chief right to look beyond the letter of the term, Justice Marshall in Brown v. Maryland, to and inquire into the motives which dictated indicate that a license tax could not be ex- the size of the packages in each case. This acted of an importer of goods from a for- argument was also made in the Austin Case, eign country who disposes of such goods in was considered at some length, and held to the form in which they were imported. It be unsound. In delivering the opinion we is not denied that, in the changed and said (p. 359, L. ed. p. 232, Sup. Ct. Rep. p. changing conditions of commerce between 138): "The real question in this case is the states, packages in which shipments whether the size of the package in which the may be made from one state to another may importation is actually made is to govern, be smaller than those "bales, hogsheads, bar- or the size of the package in which bona rels, or tierces,” to which the term was orig. fide transactions are carried on between the inally applied by Chief Justice Marshall, manufacturer and the wholesale dealer rebut, whatever the form or size employed, siding in different states. We hold to the there must be a recognition of the fact that latter view. The whole theory of the exthe transaction is a bona fide one, and that emption of the original package from the the usual methods of interstate shipment operation of state laws is based upon the have not been departed from for the purpose idea that the property is imported in the of evading the police laws of the states. ordinary form in which, from time im
In Leisy v. Hardin, 135 U. S. 100, 34 L. memorial, foreign goods have been brought ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. into the country.” Rep. 681, quarter barrels, and even one- While it is doubtless true that a perfectly eighth barrels and cases of beer, were recog-lawful act may not be impugned by the fact nized as original packages or kegs, though that the person doing the act was impelled the size of such packages and the usual thereto by a bad motive, yet, where the lawmethods of transporting beer do not seem to fulness or unlawfulness of the act is made an have been made the subject of discussion. issue, the intent of the actor may have a maThere is nothing in the opinion to indicate terial bearing in characterizing the transac
tion. We have had frequent occasions to treat commerce is undoubtedly a beneficent one. of this subject in passing upon the validity The police laws of the state are equally so, of legislative acts or municipal ordinances. and it is our duty to harmonize them. UnSo, where the lawfulness of the method used doubtedly a law may sometimes be successfor transporting goods from one state to an- fully and legally avoided if not evaded; but other is questioned, it may be shown that it behooves one who stakes his case upon the the intent of the party concerned was not letter of the Constitution not to be wholly to select the usual and ordinary method of oblivious of its spirit. In this case we cantransportation, but an unusual and more ex- not hold that plaintiffs are entitled to its pensive one, for the express purpose of evad- immunities without striking a serious blow ing or defying the police laws of the state. at the rights of the states to administer If the natural result of such method be to their own internal affairs. render inoperative laws intended for the 2. The argument that $ 5007 of the Iowa protection of the people, it is pertinent to Code denies to the plaintiffs the equal proinquire whether the act was not done for tection of the laws is based upon an alleged that purpose, and to hold that the interstate discrimination arising from the final sencommerce clause of the Constitution is in-tence that “the provisions of this section voked as a cover for fraudulent dealing, and shall not apply to the sales by jobbers and is no defense to a prosecution under the wholesalers in doing an interstate business state law.
with customers outside of the state." The power of Congress to regulate com- We are referred in this connection to a merce among the states is perhaps the most series of well-known cases arising under the benign gift of the Constitution. Indeed, it anti-trust laws of the several states, to the may be said that without it the Consti- effect that laws against combinations in tution would not have been adopted. One trade must be uniform in their application of the chief evils of the confederation was as applied to all persons within the same the power exercised by the commercial general class. The leading case upon this states of exacting duties upon the importa-point is Connolly v. Union Sewer Pipe Co. tion of goods destined for the interior of the 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. country or for other states. The vast terri. Rep. 431, where a law of Illinois against tory to the west of the Alleghanies had not combinations to regulate prices and producyet been developed or subdivided into states, tions, and create restrictions, was held to but the evil had already become so flagrant be invalid by reason of the exemption of that it threatened an utter dissolution of agricultural productions or live stock, while the confederacy. The article was adopted in the hands of the producer or raiser. that all of states of the Union might have
A similar case is that of Cotting V. the benefit of the duties collected at the Kansas City Stock Yards Co. 183 U. S. 79, maritime ports, and to relieve them from 46 L. ed. 92, 22 Sup. Ct. Rep. 30, wherein a the embarrassing restrictions imposed upon statute of Kansas regulating the prices to the internal commerce of the country. But be paid for the use of public cattle stock the same policy which authorizes the use of yards was held invalid by reason of the fact this power as a shield to protect commerce that it was intended to apply only to the from the vexatious interference of the states stock yards of Kansas City, and not to other forbids its employment as a sword to as companies or corporations engaged in like sail measures designed for the preservation business in other portions of the state. of the public health, morals, and comfort. These cases, however, have but limited apStates may differ among themselves as to plication to laws imposing taxes, where the the necessity and scope of such measures, right of classification is held to permit of but so long as they are adopted in good discrimir.. tion between different trades and faith, with an eye single to the public wel- callings when not obviously exercised in a fare, they are as much entitled to the spirit of prejudice or favoritism. Kentucky recognition of the general government as if Railroad Tax Cases, 115 U. S. 321, 29 L. ed. they were uniformly adopted by all the 414, 6 Sup. Ct. Rep. 57; Magoun v. Illinois states.
Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. While this court has been alert to protect 1037, 18 Sup. Ct. Rep. 594; American Sugar the rights of nonresident citizens, and has Ref. Co. v. Louisiana, 179 U. S. 89, 45 L. ed. felt it its duty, not always with the ap-102, 21 Sup. Ct. Rep. 43; Bell's Gap R. Co. probation of the state courts, to declare the v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, invalidity of laws throwing obstacles in the 10 Sup. Ct. Rep. 533. way of free intercommunication between the This distinction was recognized by Mr. states, it will not lend its sanction to those Justice Harlan in Connolly v. Union Sewer who deliberately plan to debauch the public Pipe Co. on page 562, (L. ed. p. 690, Sup. conscience and set at naught the laws of Ct. Rep. p. 440) wherein it is said: “A a a state. The power of Congress to regulate state may, in its wisdom, classify property for purposes of taxation, and the exercise of of the reasoning stated by me for concur. its discretion is not to be questioned in a court ring in the decree in the Austin Case. For of the United States, so long as the classifi- the reasons given for my concurrence in that cation does not invade rights secured by the case I concur in the judgment rendered in Constitution of the United States." It can this. scarcely be doubted that, if the Connolly Case had dealt with the subject of taxation,
The CHIEF JUSTICE, Mr. Justice Brewer, a discriminative tax upon producers of and Mr. Justice Peckham dissented. agricultural products, either greater or less than that imposed upon other manufacturers
(196 U. S. 276) or producers, might have been held valid without denying to either party the equal ROBERT E. HODGE et al., Plffs. in Err,
V. protection of the laws. The holding in that
MUSCATINE COUNTY et al. case was simply that, considering that the ohject of the statute was to prevent combinations of capital or skill for certain pur
Federal courts—when decisions of state
courts will be followed—due process of poses, the exemption of farmers was based
law in tax on cigarette selling-error to upon no sound distinction, and rendered the law invalid as to other classes included
state court-questions of local law. within it.
1. The construction by the Iowa supreme court There is a clear distinction in principle
of the annual charge imposed by Iowa Code, between persons engaged in selling cigarettes
§ 5007, upon cigarette dealers and “upon the generally or at retail, and those engaged in real property and the owner thereof” whereselling by wholesale to customers without on cigarettes are sold, the payment of which
is not to bar criininal proceedings, as being the state. They are two entirely distinct
a tax upon the traffic, and not a penalty, is occupations. One sells at retail, the other
not so clearly erroneous as to justify the at wholesale; one to the public generally, Federal Supreme Court in adopting a differand the other to a particular class; one ent construction on a writ of error to the within the state, the other without. From state court, in which such statute is asserted time out of mind it has been the custom of
to deny due process of law.
2. Due process of law does not require that, Congress to impose a special license tax
as to a person actually carrying on the busiupon wholesale dealers different from that
ness of selling cigarettes, notice be given of imposed upon retail dealers. A like dis
the assessment or levy of the tas imposed by tinction is observed between brewers and Iowa Code, $ 5007, upon the traffic, there rectifiers, wholesale and retail dealers in being no discretion as to the amount of the
tax. leaf tobacco and liquors, manufacturers of
3. tobacco and manufacturers of cigars, as well
An owner of real property is not denied due
process of law by Iowa Code, $ 5007, making as peddlers of tobacco. It may be difficult
the tax imposed thereby on the business of to distinguish these several classes in princi- cigarette selling a lien upon the property ple, but the power of Congress to make this where the business is carried on. discrimination has not, we believe, been 4. Sufficient provision for notice and hearing questioned.
to constitute due process of law is afforded
the owner of real property who is made perWhy the legislature should have made
sonally liable, and his property impressed the distinction found in § 5007 is not entire.
with a lien, under Iowa Code, s 5007, for the ly clear, but it probably arose from the be- tax imposed thereby on cigarette selling on lief that the imposition of a license tax the premises, by 88 2441, 2442, which permit upon wholesale exporters of cigarettes
him to make application to the board of suwould be as much an interference with
pervisors to remit the tax, and, in case of a
denial of the petition, to appeal to the disinterstate commerce as the imposition of a
trict court for a judicial determination of his similar tax upon importers from abroad was liability. held to be in Brown v. Maryland. We are 5. Whether the Iowa Constitution is violated satisfied the section is not open to the ob- by Iowa Code, $ 5007, imposing a tax on cig. jection of denying to the dealers in cigar
arette selling, because the statute does not ettes the equal protection of the laws.
distinctly state the tax and the object to
which it is applied, is a purely local quesThe judgment of the Supreme Court is, tion, which cannot be considered by the Fedtherefore, affirmed.
eral Supreme Court on writ of error to a
state court. Mr. Justice White, concurring: The only difference between this and the
[No. 150.] Austin Case is that in this no basket was Argued December 9, 12, 1904. Decided Janused to hold the many small packages ship
uary 16, 1905. ped at one and the same time to the same
person. In my opinion, such fact is not IN ERROR to the Supreme Court of the
State of to