Opinion
Nos. 1488-1491.
August 28, 1929.
Hawley Hawley, of Boise, Idaho, for complainants.
W.D. Gillis, Atty. Gen., and Leon M. Fisk, Asst. Atty. Gen., for defendants.
Before DIETRICH, Circuit Judge, and NETERER and CAVANAH, District Judges, as a statutory three-judge court.
In Equity. Suits by the Best Foods, Incorporated, by Otto Zurcher and David Van Trump, copartners doing business as the Zurcher Grocery, by the Falk Mercantile Co., Limited, and by the Davidson Grocery Company, against John S. Welch, as Commissioner of Agriculture of the State of Idaho, and others. Decree for defendants.
These cases involve an act of the Legislature of Idaho approved February 26, 1929 (Laws 1929, c. 70), requiring a license of wholesale and retail dealers in oleomargarine and other substitutes for dairy products, etc., in the state. The cases involve different relations of the act, but will be disposed of together.
The Best Foods, Inc., is a corporation of New Jersey with oleomargarine factories in Bayonne, N.J., Chicago, Ill., Salt Lake City, Utah, and San Francisco, Cal., and seeks to enjoin the enforcing officers of the state from enforcing the provisions requiring persons engaged in the sale, etc., of oleomargarine to secure licenses, as provided, before selling or offering for sale, or having in possession with intent to sell, oleomargarine. A violation of such provision is penalized by the act. It alleges, in substance, that oleomargarine is a nutritious food product made from animal and/or vegetable oils or fats and has a "caloric value slightly higher than butter"; that it was invented in 1870 at the inspiration of the French government during the Franco-Prussian War, was introduced into the United States in 1873, and was first of the animal fat type, but the use of cocoanut oil was later introduced and is now in general use; that it is sold at retail in Idaho and is used by commercial bakers and many others; that it is "ordinarily approximately from thirty-five to fifty-five per cent. of the retail price of butter"; that plaintiff has complied with the Act of Congress of August 2, 1886 ( 24 Stat. 209), and amendments thereto, regulatory of the manufacture and sale of oleomargarine; that it manufactures the product in California and Salt Lake with which it supplies the Idaho trade; that it has no office or place of business in Idaho, but ships to wholesalers in Idaho who, in turn, sell it to retailers in the original package of shipment, who, in turn, sell it in pound units, or prints, to their customers; that for the governmental fiscal year ending June 30, 1928, wholesalers reported to the collector of internal revenue, Boise, Idaho, sales of over 1,000,000 pounds of oleomargarine, and sales have since increased; that no oleomargarine is produced or manufactured in Idaho, but large quantities of butter are produced and sold; that the producers of butter have endeavored to burden and penalize the production and sale of oleomargarine in the state; that no license fee is required from either wholesale or retail dealers in butter; that the threatened enforcement of said act will repress and lessen the sale of oleomargarine, and the inhabitants of Idaho "will not have the opportunity to conveniently purchase oleomargarine and will probably in place thereof purchase butter"; that all oleomargarine manufactured and shipped is sold in compliance with the federal and state laws and regulations; that plaintiff has for many years carried on a national advertising campaign and expended large sums of money and created in the state of Idaho a market; that the threatened enforcement of said act has impaired and injured plaintiff's business, property, and good will, and will so continue unless enjoined; that many of the wholesalers and retailers of the state will not pay the tax and therefore cannot sell the product; that the act is in violation of article 14 of the amendments, and of the interstate commerce clause of the Constitution of the United States.
"Section 1. That it shall be unlawful for any person * * * to sell * * * any oleomargarine, imitation or filled cheese, or any substitute for any dairy products made from milk or cream, without first securing a license from the State Department of Agriculture. The fee for such annual license shall be $200.00, and $100.00 for a half year license to sell at wholesale; and $50.00 for the annual license and $27.50 for a half-year license to sell at retail. Any person * * * operating more than one place of business at which such products or any thereof are sold, * * * or held in possession with intent to sell * * * shall be required to procure a license for each such place of business. * * *
"Sec. 2. Fees collected under the provisions of this Act shall be credited to the general fund of the State of Idaho and fines collected shall go to the respective counties in which the convictions occur.
"Sec. 3. All firms, * * * required to be licensed by this Act shall report to the Commissioner of Agriculture monthly, for the last preceding month. * * * the number of pounds sold of oleomargarine. * * *"
The Falk Mercantile Company, Limited, says it is an Idaho corporation, doing a wholesale and retail grocery business in Boise; that it buys oleomargarine directly from The Best Foods, Inc., which is shipped in interstate commerce; that of its retail store customers approximately 100 of them sell less than 25 pounds per year, and cannot therefore afford to pay the license fee; that the matter is of general interest throughout the state; that it would cause a multiplicity of actions to have the constitutionality of said act brought into question by all of the retailers and wholesalers who are interested in and concerned by it; that the action is brought by it in its own behalf and in behalf of others affected thereby.
The bill of complaint of Davidson Grocery Company is practically the same as that of the Falk Mercantile Company.
Zurcher and Van Trump state they are citizens of the United States, copartners, doing a retail grocery business and selling from 75 to 100 pounds of oleomargarine per week in individual sales of less than 10 pounds to each customer, who, while making such purchases, likewise purchase other provisions in groceries, and that the handling of oleomargarine is an accommodation to its trade and induces persons to trade with them, who otherwise might not do so; that they have competitors in the grocery business, and that if they did not handle oleomargarine, other concerns would inspire their trade; that they desire to continue selling oleomargarine, and that should they not secure the license as provided by said act, the plaintiffs would be subjected to prosecution, their livelihood irreparably injured, and they would be deprived of their property without due process of law, and denied the equal protection of the law; that the act is in violation of article 14 of the Amendments to the Constitution.
The defendants, answering all of the bills of complaint, deny violation of any of the provisions of the Constitution of the United States or that the law creates an unlawful distinction and classification; that the dairy industry of Idaho is one of the vital and important industries of the state, and a large percentage of the rural population is engaged therein, and a large amount of property used in said industry and a large part of the wealth and income of the state is derived from the sale of its dairy products.
It is stipulated that there are no dealers in the state of Idaho exclusively engaged in the handling of oleomargarine. 793 retailers and 8 wholesalers who prior to July 1, 1929, handled and sold oleomargarine, employed only a part of their time in its sale, and those so engaged since July 1, 1929, are in the same relation; that only 305 retailers and 5 wholesalers have paid the license fee or paid the federal tax required for the sale of oleomargarine; that of 200 retailers supplied with oleomargarine by Falk Company, Limited, approximately 125 have refused to pay the license fee, and that sales have depreciated 35 per cent.; that about 100 retailers supplied by Davidson Grocery Company refuse to pay the license fee or the federal tax, and that these sales have depreciated over 35 per cent.; that no license fee is required in the state for the sale of foodstuffs or commodities, except oleomargarine, and no law that has for its purpose the raising of revenue has been passed which imposes a tax on any food commodity other than oleomargarine.
It is also stipulated as a fact, but objected to as immaterial, that at the request of the Idaho Dairymen's Association, and approval of the State Grange, its officers appeared before members and committees of the Legislature and urged the passage of the law.
In view of the statement of the history of the invention, manufacture, and introduction of oleomargarine, and the contention that the cow and factory are competitors, a brief statement of the origin and development of the cow follows:
The earliest written records, nearly four centuries before Christ, in the Vedic Hymns written in Sanscrit and preserved in India, it is said, give us our first authentic information of the cow. The Aryans on the plains of Central Asia, to whom the common ancestors of all the "white races" can be traced, are said to be the first to use cow's milk as a life sustaining substance. The domesticated cows of the Aryans are the ancestors of our cows, whence she was taken through Asia, Africa, Europe (Sweden and Denmark, "ko," and Germany, "kuh"), and finally a few into the new world by Columbus on the second voyage in 1493 to the island of Santo Domingo, and to Mexico in 1525, and Florida in 1538. The first shipment to New England was made in 1624 by Governor Winslow.
The Hindus, Greeks, Egyptians, Romans all revealed great consideration for their cows. The Grecian urn, immortalized by Keats, depicted a familiar scene: "To what green altar, O mysterious priest, Lead'st thou that heifer lowing at the skies, And all her silken flanks with garlands drest?" In Egypt the cow was sacred to Isis. In Uganda, in the heart of Africa, the tribal cow is thought holy and the milk cared for with elaborate ceremonies. The Greek poet Hesiod, in his work on agriculture, "Works and Days," offers advice and admonishes care of the Grecian herds. Jacob and his brethren said to Pharaoh: "Thy servants hath been about cattle from our youth even until now, both we and our fathers." The cow was worshipped in Babylonia and in Tyre. The Jews thought milk most valuable, and described the blessings of the land of promise as a land "flowing with milk and honey," Caesar, in war with the Gauls, observed that the people on the shores of Lake Geneva did not farm, but "lived by keeping cows."
In India veneration for the cow has continued in many parts as part of their religion, and in some native states the law prohibits the killing of cows, and some Tibetan tribes treat their dairies as holy temples.
The development of the cow has been a continuous, progressive change; the unfolding as natural and inevitable under the tender care of the intelligent keeper as the "unfolding of a flower." Cows have developed from a milk production sufficient only to sustain their off-spring to 33,364.7 pounds of milk (official test for one year) by De Kol Plus Segis Dixie, containing 1,349.31 pounds of butter fat, and 37,381.4 pounds of milk containing 1,458.95 pounds of butter fat by Segis Pieterje Prospect.
Milk, it is said, contains all of the vitamins essential to life and growth. "The * * * white race * * * cannot survive without dairy products." (Herbert Hoover, now President of the United States, quoted in "The Path of the Gopatis.")
The large ranges have given way to the settler and the home builder. Commercial cattle have disappeared from the open plains. The small farmer and the dairyman have and are appropriating the open spaces. The Handbook of Dairy Statistics, Bureau of Animal Industry, United States Department of Agriculture, Washington, D.C., 1928, states that Idaho in 1924 produced on farms 78,505,003 gallons of milk and 3,661,728 pounds of farm butter from 151,722 cows. From comparison of per capita consumption based on the national agricultural report, they consumed approximately $10,500,000 worth of forage at the farm, and the total value of the milk produced, by comparison with the same report, was approximately $19,000,000.
The court judicially knows that Idaho is 83,888 square miles in area, two-thirds of which is virgin timber. Much of the balance of the land is adapted to agricultural and pastoral pursuits. The cows, and the lands devoted in support of dairying, in the state are burdened with taxes for the maintenance of state and local governments, and this includes police protection to those engaged in the sale of oleomargarine, etc., to which they contribute nothing. If the intelligent, patriotic duty of the state legislators makes it advisable to encourage the development of its material resources, the products of its cows produced from the growth of its farms, bringing into cultivation additional acres of its wide expanse of fertile lands, and require dealers in the artificial manufacture of food products from foreign substances to contribute to the expense of the government, whose protection they receive and whose benefits they enjoy, and in effect discourage local dealers in the sale of manufactured oleomargarine products, "vegetable oils or fats having a caloric value slightly higher than butter," claimed by the plaintiff to be superior in food value to butter and dairy products, and which, it is claimed, can be produced at a cost of from 35 to 55 per cent. of the cost of butter, and more than a million pounds are sold in the state, and it is agreed "many people in the state * * * as a matter of preference or as a matter of economy * * * purchase oleomargarine instead of butter," by requiring the payment of a license fee and making periodical reports of their sales, the court should give critical consideration to incentive to industry within the state and whether the policy thus enacted is reasonably founded in "the purpose and policy of taxation," within the limitations of the Constitution to the well-being of the inhabitants of the state, many of whom are engaged in one of the basic, if not the basic industry of the state and nation, "* * * a constitution that has known protective tariffs for a hundred years." Justice Holmes in Alaska Fish, etc., Co. v. Smith, 255 U.S. 44, 41 S. Ct. 219, 220, 65 L. Ed. 489.
The reference to the invention, introduction into the United States, and development of oleomargarine, and the evolution of the cow from its earliest history, have no more place in concluding the legal rights in this case than the act of the employee who left his cheese "sandwich lunch" in a cave and forgot it for two weeks, which act gave birth to Roquefort cheese, or the discovery of the Arab that the shaking of the milk in the skin bottles on the camel's back produced little balls of fat, butter, have to the value or legal status of those commodities. Nor is it material that the Dairymen's Association and State Grange supported or inspired this legislative act.
Does the act of the Legislature violate the provisions of the Constitution of the United States by denying equal protection to the plaintiffs or depriving them of their property rights without due process of law, or interfere with the free movement of interstate commerce?
This court has no interest in the policy of the state revenue laws, so long as equal protection is not denied, and is reasonable and not purely arbitrary. Nor is the Fourteenth Amendment concerned with state legislation where there is a real difference and it will not create an artificial equality. Quong Wing v. Kirkendall, 223 U.S. 59, 32 S. Ct. 192, 193, 56 L. Ed. 350. There is no equality between the cow on the farm and her natural product, "butter," and the manufacturing plant at San Francisco, Salt Lake, or elsewhere, and its artificial product, "Oleomargarine." Each product has food value, but composed of different elements, and the difference determines between them as food, and is a just basis for classification. "Any classification is permissible which has a reasonable relation to some permitted end of governmental action * * * if the classification is reasonably founded in `the purposes and policy of taxation.'" Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S. Ct. 83, 85, 67 L. Ed. 237; Watson v. State Comptroller, 254 U.S. 122, 41 S. Ct. 43, 65 L. Ed. 170. The state "may impose different specific taxes upon different trades and professions. * * *" Bell's Gap R.R. Co. v. Pennsylvania, 134 U.S. 232, 10 S. Ct. 533, 535, 33 L. Ed. 892.
The act in issue exacts a definite license fee. It is significant that this money is placed in the general fund of the state and appears in the relation of a taxation measure, and as such may be sustained, and if for revenue the court cannot consider the reasonableness of the amount. Cooley on Taxation, vol. 1, § 29. The exercise of acknowledged power to tax may not be scrutinized by the court. The responsibility rests upon the Legislature, and if unreasonably exercised redress rests with the people. Spencer v. Merchant, 125 U.S. 355, 8 S. Ct. 921, 31 L. Ed. 763. Article 7, § 2, Constitution of Idaho, provides: "The Legislature may also impose a license tax (both upon natural persons and upon corporations, other than municipal, doing business). * * *"
The distinction between a regulatory tax and one solely for revenue is that the regulatory tax must bear reasonable relation to the cost of such regulation. State v. Nelson, 36 Idaho 713, 213 P. 358; Standard Oil Co. v. Graves, 249 U.S. 389, 39 S. Ct. 320, 63 L. Ed. 662. But if imposed under the general taxing power, the amount rests wholly within the discretionary power of the taxing authority. State v. Nelson, supra; Spencer v. Merchant, supra. Existing right of taxation is unlimited, and carries inherently the power to embarrass or destroy. Austin v. Boston, 74 U.S. 694, 19 L. Ed. 224. See, also, Quong Wing v. Kirkendall, supra; Alaska Fish Salting, etc., Co. v. Smith, supra; McCray v. United States, 195 U.S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561. Power to tax is the essential of political existence, and the essence of the prosperity of the state. It has not only the power to destroy, but it has also the power to keep alive. Nicol v. Ames, 173 U.S. 515, 19 S. Ct. 522, 525, 43 L. Ed. 786. "A state does not deny the equal protection of the laws merely by adjusting its revenue laws and taxing system in such a way as to favor certain industries or forms of industries." Quong Wing v. Kirkendall, supra; McLean v. Arkansas, 211 U.S. 539, 29 S. Ct. 206, 53 L. Ed. 315; Armour Pack. Co. v. Lacy, 200 U.S. 226, 235, 26 S. Ct. 232, 50 L. Ed. 451; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 562, 22 S. Ct. 431, 46 L. Ed. 679; American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 92, 95, 21 S. Ct. 43, 45 L. Ed. 102; Williams v. Fears, 179 U.S. 270, 276, 21 S. Ct. 128, 45 L. Ed. 186; Cargill v. Minnesota, 180 U.S. 452, 469, 21 S. Ct. 423, 45 L. Ed. 619.
The act applies to all dealers in the state in oleomargarine, wherever made. The fact that at present none is made in the state is immaterial, and the tax is equal upon residents and nonresidents carrying on the same business. Ward v. Maryland, 12 Wall. (79 U.S.) 418, 20 L. Ed. 449. The act is not objectionable because oleomargarine is placed in a class by itself, as there is no relation between the cow and the butter, and the manufacturing plant and the oleomargarine, and apart from the commerce clause, the state may restrict the manufacture of oleomargarine in a way that does not hamper that of butter. Hammond Pack Co. v. Montana, 233 U.S. 331, 34 S. Ct. 596, 58 L. Ed. 985. See, also, section 25, title 21, USCA.
The equality clause is not infringed where the same methods and requirements are impartially applied to all the elements of a class, so that operation of the law may be equally and uniformly applied to all similarly circumstanced persons. State v. Horn, 27 Idaho 782, 152 P. 275. And this policy may be carried out in a revenue as well as a police measure. Hammond Pack. Co. v. Montana, supra. "Legislation * * * may affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution. * * *" Plumley v. Mass., 155 U.S. 461, 15 S. Ct. 154, 158, 39 L. Ed. 223. And "while a state may not use its taxing power to regulate or burden interstate commerce, * * * on the other hand it is settled that a state excise tax which affects such commerce, not directly, but only incidentally and remotely, may be entirely valid where it is clear that it is not imposed with the covert purpose or with the effect of defeating Federal Constitutional rights." Hump Hairpin Co. v. Emmerson, 258 U.S. 291, 42 S. Ct. 305, 307, 66 L. Ed. 622. In this issue we are not concerned with the excise relation, but only with the occupation or license tax exacted of all doing such business in the state.
Placing in competition 151,722 cows in the state with a butter production on the farms alone of 3,661,728 pounds, with factories selling in the state more than a million pounds of oleomargarine per annum, which can be produced at a cost of from 35 to 55 per cent. of the cost of butter, and requiring the cow and the farm which supports her to contribute to the maintenance of the state and local government by taxation, and affording protection to the dealers in the state in oleomargarine, advertised by expenditure of large sums of money, as stated in the complaint, challenges the state's "power to keep alive."
The license fee does not attach to the commodity, but is exacted from all persons in the state engaged in selling oleomargarine, and can be no burden upon interstate commerce and repugnant to the commerce clause of the Constitution, unless sold in original packages before it passes beyond interstate commerce. And if it were a tax on the commodity, "even if discriminatory in character," coming from Salt Lake or San Francisco, it would not be offensive after the oleomargarine had come at rest within the state and been commingled with the mass of property therein. Darnell v. Memphis, 208 U.S. 113, 118, 28 S. Ct. 247, 250, 52 L. Ed. 413. The state may tax property which has been moved in the channels of interstate commerce when such property has come at rest therein, even before sale in the original package. Woodruff v. Parham, 8 Wall. (75 U.S.) 123, 19 L. Ed. 382; Brown v. Houston, 114 U.S. 622, 5 S. Ct. 1091, 29 L. Ed. 257. The requiring of a reasonable license fee or occupation tax is not inconsistent with due process and the equal protection clause of the Fourteenth Amendment. See Bowman v. Cont. Oil Co., 256 U.S. 642, 41 S. Ct. 606, 608, 65 L. Ed. 1139.
In Askren v. Continental Oil Co., 252 U.S. 449, 40 S. Ct. 355, 356, 64 L. Ed. 654, the court said: "A business of this sort, although the gasoline was brought into the state in interstate commerce, is properly taxable by the laws of the state." If the commodity is taxable, all dealers in the same class may be taxed.
It is contended by plaintiffs that Askren v. Cont. Oil Co., supra, and Bowman v. Cont. Oil Co., supra, are decisive of every issue in this case in favor of the plaintiffs. These cases are one case; Bowman succeeded Askren as Attorney General.
Concisely stated, New Mexico requires a distributor to pay a license tax of $50 for each station, and the retailer $5 for each agency, and an excise tax is also imposed of 2 cents per gallon on all gasoline sold or used. The court held from all its provisions the act was not an inspection act merely, but in effect, a tax upon the privilege of selling gasoline in the state. The plaintiffs brought gasoline from other states to New Mexico, there to be sold and delivered. The business was in two classes: First, the gasoline was obtained in various states in tanks, barrels, etc., shipped into the state, and sold and delivered in the original packages "in the same form and condition as when received"; as to which, the court held plaintiff engaged in interstate commerce and not liable for the license tax. Second, plaintiff bought gasoline outside of the state and shipped it in tanks, barrels, etc., and sold it in quantities to suit purchaser, and the court, in the Askren Case, held that sales from broken packages are a subject of taxation within the power of the state, but did not go into the question whether the act was separable. Later, in the Bowman Case, the court held that the state might impose a license tax upon sale, etc., of gasoline in domestic commerce if it did not make its payment a condition of carrying on interstate commerce, which the state did not do by legislation, and that the disavowal of the officers of the state to enforce the act against interstate commerce is not sufficient; but also said that gasoline sold from distributing stations has passed beyond interstate commerce, and "since the tax operates impartially upon all, and with territorial uniformity throughout the state, we deem it `equal and uniform upon subjects of taxation of the same class.' * * * The contention that it interferes with interstate commerce" is without foundation. See, also, Hart, etc., v. Harmon, etc., 278 U.S. 499, 49 S. Ct. 188, 73 L. Ed. 475.
The plaintiff Best Foods, Inc., is not a resident dealer within the state of Idaho; it is not required to secure a license; its business is not within range of the act. Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124, 66 L. Ed. 254, 27 A.L.R. 375; Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A.L.R. 1280; Pierce v. Society, etc., 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A.L.R. 468, are not to the contrary. The wholesalers buy but do not sell, in interstate commerce; they sell, and the retailers buy, after the oleomargarine has been at rest in the state, passed beyond interstate commerce. The tax is uniform throughout the state, equal upon the same class of property and dealers, operates impartially, does not deprive plaintiffs of a right or property, nor infringe the "commerce clause."
Decree for defendants.
Authorities cited by plaintiff: Askren v. Cont. Oil Co., 252 U.S. 444, 40 S. Ct. 355, 64 L. Ed. 654; Welton v. Missouri, 91 U.S. 275, 23 L. Ed. 347; Bethlehem Motors Corp. v. Flynt, 256 U.S. 421, 41 S. Ct. 571, 65 L. Ed. 1029; Leloup v. Mobile, 127 U.S. 647, 8 S. Ct. 1380, 32 L. Ed. 311; Bowman v. Cont. Oil Co., 256 U.S. 642, 41 S. Ct. 606, 65 L. Ed. 1139; Sprout v. South Bend, 277 U.S. 163, 48 S. Ct. 502, 72 L. Ed. 833; Lemke v. Farmers' Grain Co., 258 U.S. 50, 42 S. Ct. 244, 66 L. Ed. 458; Di Santo v. Pennsylvania, 273 U.S. 34, 47 S. Ct. 267, 71 L. Ed. 524; Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265, 42 S. Ct. 101, 66 L. Ed. 227; Alpha Portland Cement Co. v. Mass., 268 U.S. 203, 45 S. Ct. 477, 69 L. Ed. 916, 44 A.L.R. 1219; Crutcher v. Commonwealth of Kentucky, 141 U.S. 47, 11 S. Ct. 851, 35 L. Ed. 649; Foster-Fountain Pack. Co. v. Haydel, 278 U.S. 1, 49 S. Ct. 1, 73 L. Ed. 147; Robbins v. Tax. Dist., 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694; Williams v. Talladega, 226 U.S. 404, 33 S. Ct. 116, 57 L. Ed. 275; Darnell v. Memphis, 208 U.S. 113, 28 S. Ct. 247, 52 L. Ed. 413; Brimmer v. Rebman, 138 U.S. 78, 11 S. Ct. 213, 35 L. Ed. 862; State of Minnesota v. Barber, 136 U.S. 313, 10 S. Ct. 862, 34 L. Ed. 455; Webber v. Virginia, 103 U.S. 344, 26 L. Ed. 565; Walling v. Michigan, 116 U.S. 446, 6 S. Ct. 454, 29 L. Ed. 691; Guy v. Baltimore, 100 U.S. 434, 25 L. Ed. 743; Boyce v. French (D.C.) 293 F. 43; Austin v. Tennessee, 179 U.S. 344, 21 S. Ct. 132, 45 L. Ed. 224; Voight v. Wright, 141 U.S. 63, 11 S. Ct. 855, 35 L. Ed. 638; Castle v. Mason, 91 Ohio St. 296, 110 N.E. 463, Ann. Cas. 1917A, 164; State v. Duckworth, 5 Idaho 642, 51 P. 456, 39 L.R.A. 365, 95 Am. St. Rep. 199; Southern Railway Co. v. Greene, 216 U.S. 400, 30 S. Ct. 287, 54 L. Ed. 536, 17 Ann. Cas. 1247; Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124, 66 L. Ed. 254, 27 A.L.R. 375; Gila Meat Co. v. State (Ariz.) 276 P. 1; Kentucky Finance Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544, 43 S. Ct. 636, 67 L. Ed. 1112; Power Mfg. Co. v. Saunders, 274 U.S. 490, 47 S. Ct. 678, 71 L. Ed. 1165; City of Covington v. Dalheim, 126 Ky. 26, 102 S.W. 829; Hager v. Walker, 128 Ky. 1, 107 S.W. 254, 15 L.R.A. (N.S.) 195, 129 Am. St. Rep. 238; Raich v. Truax, 219 F. 273 (D.C. 9th Circuit).
Authorities cited by defendants: Cooley on Taxation, vol. 1, § 27; also, id. § 29; State v. Nelson, 36 Idaho 713, 213 P. 358; Gulf Fisheries v. MacInerney, 276 U.S. 124, 48 S. Ct. 227, 72 L. Ed. 495; Cooley on Taxation, vol. 1, § 45; article 7, § 2, Constitution of Idaho; Austin v. Boston, 74 U.S. (7 Wall.) 694, 19 L. Ed. 224; Spencer v. Merchant, 125 U.S. 355, 8 S. Ct. 921, 31 L. Ed. 763; Quong Wing v. Kirkendall, 223 U.S. 59, 32 S. Ct. 192, 56 L. Ed. 350; Alaska, etc., Co. v. Smith, 255 U.S. 44, 41 S. Ct. 219, 65 L. Ed. 489; McCray v. United States, 195 U.S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561; Nicol v. Ames, 173 U.S. 515, 19 S. Ct. 522, 43 L. Ed. 786; Ward v. Maryland, 79 U.S. (12 Wall.) 418, 20 L. Ed. 449; Walling v. Michigan, 116 U.S. 446, 6 S. Ct. 454, 29 L. Ed. 691; Emert v. Missouri, 156 U.S. 296, 15 S. Ct. 367, 39 L. Ed. 430; Hammond Pack. Co. v. Montana, 233 U.S. 331, 34 S. Ct. 596, 58 L. Ed. 985; State v. Horn, 27 Idaho 782, 152 P. 275; Plumley v. Massachusetts, 155 U.S. 461, 15 S. Ct. 154, 39 L. Ed. 223; Hump Hairpin Co. v. Emmerson, 258 U.S. 291, 42 S. Ct. 305, 66 L. Ed. 622; Preston v. Finley (C.C.) 72 F. 850; Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S. Ct. 83, 67 L. Ed. 237; Bell's Gap Railroad Co. v. Pennsylvania, 134 U.S. 232, 10 S. Ct. 533, 33 L. Ed. 892; Watson v. State Comptroller, 254 U.S. 122, 41 S. Ct. 43, 65 L. Ed. 170; Chicago, B. Q.R. Co. v. Illinois, 200 U.S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; Bacon v. Walker, 204 U.S. 311, 27 S. Ct. 289, 51 L. Ed. 499; State v. Pitney, 79 Wn. 608, 140 P. 918, Ann. Cas. 1916A, 209; Sanning v. City of Cincinnati, 81 Ohio St. 142, 90 N.E. 127, 25 L.R.A. (N.S.) 686; Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 992, 1257, 32 L. Ed. 253; Armour Pack. Co. v. Snyder (C.C.) 84 F. 136; In re Scheitlin (C.C.) 99 F. 272; State v. Rogers, 95 Me. 94, 49 A. 564, 85 Am. St. Rep. 395; Commonwealth v. Huntley, 156 Mass. 236, 30 N.E. 1127, 15 L.R.A. 839; Butler v. Chambers, 36 Minn. 69, 30 N.W. 308, 1 Am. St. Rep. 638; State v. Addington, 12 Mo. App. 214; Waterbury v. Newton, 50 N.J. Law, 534, 14 A. 604; McCann v. Commonwealth Penn., 198 Pa. 509, 48 A. 470; Hathaway v. McDonald, 27 Wn. 659, 68 P. 376, 91 Am. St. Rep. 889; State v. Myers, 42 W. Va. 822, 26 S.E. 539, 35 L.R.A. 844, 57 Am. St. Rep. 887; Schollenberger v. Penn., 171 U.S. 1, 18 S. Ct. 757, 43 L. Ed. 49; Corvallis Creamery Co. v. Van Winkle (D.C.) 274 F. 454; Texas Co. v. Brown, 258 U.S. 466, 42 S. Ct. 375, 66 L. Ed. 721; Sonneborn Bros. v. Cureton, 262 U.S. 506, 43 S. Ct. 643, 67 L. Ed. 1095.