State ex rel. Woodward v. Chapman

*78 Disserting Opinion. Fenner, J. I cannot assent to the opinion and decree herein. Under Article 206 of the Constitution, “clerks” are expressly exempted from liability to a license tax. From the admissions in the record it appears that defendant is an employee of Stauffer, Macready & Co., at a regular monthly salary, and having, no other business or employment; that his duties consist in selling goods in and out of the store, in taking care of stock, in filling orders and performing other clerical duties, acting as a travelling salesman, selling goods in the State, in and out of the City of New Orleans, and soliciting orders throughout the State for said firm. ■ It is fairly and distinctly inferable that he is employed by the firm as a salesman generally, obeying the orders of his employers,.selling in the store or out of the store, in the City or out of the City, as they direct. Such an employee is a “clerk” within the intendment of the Constitution. Webster defines a cleric as “ an assistant in a shop or store, who sells goods, keeps accounts, etc.” Worcester defines it to be one employed as an assistant “ in a public or private office j a subordinate or an assistant in the store or shop of a retail trader.” Bouvier defines it, “ a person in the employ of a merchant who attends only to apart of his business, while the merchant himself superintends the whole.” This Court held that one employed by another to travel throughout the State,' procuring information for maps, getting subscribers and selling maps,' etc., and who received a regular salary, was a cleric. Colley vs. Labourette, 7 An. 222. The obvious intention of the Constitution was to recognize the fact that persons pursuing business and callings and paying license for such privilege, had need of assistants or clerks to aid them in their business, and to distinguish between such principal and their assistants and to exempt the latter from license taxation. Stauffer, Macready & Co. held unqualified licenses from the State to pursue the occupations of wholesale and retail dealers, during the year 1882, for which they paid three hundred and twenty-five dollars. So far as the State is concerned, they had the right to sell anywhere in the State, and to employ assistants in selling. Such assistants, whose character as clerics, while selling goods in the store, would be disputed by no one, do not lose that character when, ^ in obedience to the orders of their principals, they go to sell in the country, Such selling is not the selling of the clerk, but the selling *79 of Stauffer, Maoreacly & Co., who have already been licensed by the State so to sell, and have paid for that privilege. The legislature, denied by the Constitution the right to impose a license tax upon such a clerk, cannot acquire that right by simply calling him a “ travelling agent.” Every clerk is necessarily an agent; hut there exists a large class of agents who are not clerks, and who are, therefore, taxable. Such are the various kinds of factors, brokers, and dealers on commission, insurance agents, etc., persons whose business and whose time are their own, who labor at their own will, under their own control, and whose pay is measured by the efficiency and extent of their work. Such agents, whether dealing in the goods of one or of several firms, are not clerks and are taxable. But the employee who hires his time for a fixed salary to his principal, whose whole time belongs to that principal, whose duties consist in performing under orders the business which that principal is licensed to do, is a clerk and not taxable. Perhaps the travelling salesman of an unlicensed firm, whether resident or non-resident, however paid and however employed, would stand on a different footing, because as his principals would have no right to sell without a license, he might be debarred, on familiar principles, from holding up their authority and orders as his protection. As I am satisfied the legislature had no power to tax a clerk like the defendant, so I am equally clear that such was not the legislative intent. The law did not design to handicap and paralyze the enterprise of licensed dealers by vexatious taxation on their salaried employees. Such an interpretation is hostile to the spirit of commerce and the policy of the State, which are to encourage our merchants, once licensed to do business, to reach out for trade in every direction, and not to make the four walls- of a store a dungeon within which their energies mnst wither and their trade rot and die away. Poehé, J., concurs in this opinion.