Appellant was charged, by information, with unlawfully engaging in and pursuing the occupation of a traveling person, engaged in selling patent and other medicines, — an occupation taxed by law, — without paying the occupation tax, was convicted, and his punishment assessed at a fine of $150. The evidence shows: That appellant was employed by P.B. Haight Co., of Omaha, Neb., wholesale grocers and druggists, on a salary. That other parties were also employed by said firm on commission. That appellant was the head man, and the others worked under him. The employes received orders for goods, and forwarded them to the house, subject to its approval, to be filled. P.B. Haight Co. shipped the goods packed in boxes, barrels, crates, etc., consigning the goods to themselves at Wichita Falls, and when the car arrived the boxes, etc., were opened, and the goods delivered direct from the car. The packages are not marked with the names of each purchaser, but each package is marked with the article and amount it contains. The company notifies each purchaser of the time and place to call for his goods. The medicines are put up in boxes and barrels, and all other goods are packed for protection in that way, and the orders are filled by taking the medicines, etc., ordered, from these large packages. If twenty persons order medicine, the first customer coming is served first, and so on, until each order is filled, regardless of whether the firm have enough goods in the car to supply all the orders at that time. One box or barrel might contain orders for a dozen people. In canvassing, samples are carried of some of the goods, and some are sold by the brands. Appellant canvassed Wichita County for groceries and medicines, and delivered all goods and collected for the same. In this particular business he, of course, had assistance. Appellant had no interest in the goods, but worked on a salary.
Appellant insists that the traffic engaged in was interstate commerce, and that the Federal Constitution inhibits any tax being imposed upon such traffic. It is not necessary to discuss this question, as our views on this character of legislation were expressed in the argument of the present presiding judge (who was then Assistant Attorney-General), as well as in the opinion of the court, in Ex Parte Asher, 23 Texas Criminal Appeals, 662. We see no reason for changing our views in the conclusion there reached. However, the Supreme Court of the United States, which court is supreme in these matters, has overruled the opinion expressed in Asher's case, supra; and it is no longer a mooted question as to whether or not the above state of facts constitutes interstate commerce, but the matter has been settled by the adjudications of the Supreme Court of the United *Page 548 States, the Supreme Court of this State, and this court, in favor of the contention of appellant. In Miller v. Goodman (Texas Supreme), 40 Southwestern Reporter, 718, it was held that a corporation created by another State, selling goods manufactured in that State, and shipped into the State of Texas, is engaged in interstate commerce, whether the goods are sold before they are shipped, or shipped into the State of Texas and then sold; and therefore the corporation need not comply with the State laws requiring a foreign corporation, as a condition precedent to transacting or soliciting business in Texas, to file its articles of incorporation, and receive a permit from the Secretary of State. In Talbutt v. State, 39 Texas Criminal Reports, 64, we held an occupation tax upon the sale of lightning rods manufactured in another State, and sold upon orders taken by traveling salesmen in this State, is unconstitutional, as being a tax upon interstate commerce. The same proposition is announced in Ex Parte Holman, 36 Texas Criminal Reports, 255. See also Asher v. Texas, 128 U.S. 129, 9 Sup. Ct., 1, 32 L.Ed., 368; Leloup v. Mobile, 127 U.S. 640, 8 Sup. Ct., 1380, 32 L.Ed., 311. The statute under which appellant was prosecuted, in so far as the same imposes a tax upon interstate commerce, as indicated above, being violative of the Federal Constitution, as announced in the decisions above cited, the judgment in this case is accordingly reversed, and the prosecution ordered dismissed.
Reversed and dismissed.