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S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380; McCall v. Califormia, 136 U. S. 104, 34 L. ed. 392, 10 Sup. Ct. Rep. 881; Crutcher v. Kentucky, 141 U. S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851; Brennan v. Titusville, 153 U. S. 289, 38 L. ed. 719, 4 Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 829.

Is the law under consideration a regulation of interstate commerce? What is "commerce?" What does that term, as used in the Constitution of the United States, include? Perhaps the earliest definition of the term to be found in the Reports of the Unit

of 1882, and, notwithstanding the act of 1876 was omitted from that Code, the definition of "emigrant agent," as contained in the latter act, was therein embraced. Code 1882, § 4598 (a, b, c). It was evidently the opinion of the codifiers that the act of 1877 repealed the act of 1876, except so far as the definition of "emigrant agent" was concerned. Both the act of 1876 and the act of 1877 were omitted from the Code of 1895; the only reference to either act being contained in § 601 of the Penal Code, which provides that "any person who shall solicit or procure emigrants, or shall attempt to do so, without first procuring a license as re-ed States Supreme Court is that given by quired by law, shall be guilty of a misdemeanor. This section was taken from the act of 1877, but the words "any person" were substituted for the words "any emigrant agent," used in that act. It is, however, unnecessary in this case to determine what effect is to be given to this section.

Mr. Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23. On page 189, the chief justice said: "Commerce undoubtedly is traffic, but it is something more—it is intercourse. It describes the commercial intercourse between nations and parts of nations, in all its branches, and is regulated 2. This brings us down to that provision by prescribing rules for carrying on that inof the general tax act of 1898, above referred tercourse." And again he says: Commerce to, the validity of which is assailed in the includes "every species of commercial interpresent case. It is to be noted that the acts course between the United States and forof 1876 and 1877 provided for a license, eign nations." It was decided in that case while the tax acts provide for a tax upon that navigation was a branch of commerce. occupation, these acts describing the tax im- In Brown v. Maryland, 12 Wheat. 419,'6 L. posed upon emigrant agents as a specific tax, ed. 678, it was said that commerce includes and that occupation being embraced in the "trade, traffic, intercourse." In Chicago & act along with other occupations of various N. W. R. Co. v. Fuller, 17 Wall. 568, 21 L. character; and the act distinctly recites that ed. 714, it was said: "Commerce is traffic, it is passed for the purpose of collecting a but it is much more. It embraces also transtax for the support of the government and portation by land and water, and all the the public institutions, for educational pur- means and appliances necessarily employed poses, and to pay the public debt. It thus in carrying it on." In Gloucester Ferry Co. being clear that the sum required to be paid v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, is a tax upon an occupation, and not a li-1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826, cense to do business, the question as to whether it is so excessive as to amount to a prohibition of the carrying on of the business referred to is not involved in this case, nor is such a question at all raised in the present case.

Giving to the term "emigrant agent" the definition set forth in the act of 1876, the question to be now considered is whether the state has the power to impose a tax upon a person engaged in that occupation. It is contended by counsel for plaintiff in error that the state has no such power, and in support of this it is argued that the imposition of such a tax is in violation of various provisions of the Constitution of the United States and of the state of Georgia. It is said that the law is violative of that provision of the Constitution of the United States in which the power is given to Congress to regulate commerce among the several states. If the act imposes a tax upon persons engaged in commerce among the states, it is a regulation of such commerce, and is void. Such a tax is, in effect, a tax upon the business itself. This has been so repeatedly ruled by the Supreme Court of the United States that it will not at this day be questioned. Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Robbins v. Shelby County Taxing Dist. 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592: Leloup v. Port of Mobile, 127 U.

it was held: "Commerce among the states
consists of intercourse and traffic between
their citizens, and includes transportation of
persons and property, and the navigation of
public waters for that purpose, as well as .
the purchase, sale and exchange of commodi-
ties." It was further held in that case that
"the power also embraces within its control
all the instrumentalities by which commerce
may be carried on, and the means by which
it may be aided and encouraged." In Mo-
bile County v. Kimball, 102 U. S. 691, 26 L.
ed. 238, it was said: "Commerce with for-
eign countries and among the states, strict-
ly considered, consists in intercourse and
traffic, including in these terms navigation
and the transportation and transit of per-
sons and property as well as the purchase,,
sale, and exchange of commodities. In Wa
bash, St. L. & P. R. Co. v. Illinois, 118 U. S.
557, 558, 30 L. ed. 244, 1 Inters. Com. Rep.
31, 7 Sup. Ct. Rep. 4, Mr. Justice Miller uses
this language: "This court holds now, and
has never consciously held otherwise, that a
statute of a state, intended to regulate or to
tax or to impose any other restriction upon
the transmission of persons or property or
telegraphic messages from one state to an-
other, is not within that class of legislation
which the states may enact in the absence of
legislation by Congress, and that such stat-
utes are void, even as to that part of such
transmission which may be within the

and

state." It may be deduced from these deci- | Transatlantique, 107 U. S. 59, 27 L. ed. 383, sions that, in general, commerce compre- 2 Sup. Ct. Rep. 87; Passenger Cases, 7 How. hends traffic, intercourse, navigation, the 283, 12 L. ed. 702. Nor can a state pass a transportation of persons and property, and law which attempts to regulate or restrict the means and instrumentalities by which communication between the citizens of difthese four things are effectuated. If, there- ferent states. Western U. Teleg. Co. v. Penfore, the law under consideration seeks to dleton, 122 U. S. 347, 30 L. ed. 1187, 1 regulate or restrict any one of these four Inters. Com. Rep. 306, 7 Sup. Ct. Rep. 1126; forms of commerce among the states, or if Pensacola Teleg. Co. v. Western U. Teleg. it seeks to burden any instrumentality by Co. 96 U. S. 1, 24 L. ed. 708. But the law which they are carried on, it is void, and under consideration in the present case neimust be so declared. Dealing with these ther regulates nor restricts the right of citifour branches of commerce in the order zens of this state to leave its territory at named, we will inquire, first, whether the will, nor to hold free communication with business of "hiring laborers in this the citizens of other states. The citizen may state, to be employed beyond the limits of leave when he pleases, but the person who the same," is traffic. "Traffic" is "commerce; makes it a business of inducing him to go to trade; sale or exchange of merchandise, perform labor elsewhere must pay an occubills, money, and the like." Bouvier, Law pation tax. This is certainly no infringeDict. "The passing of goods or commodities ment upon the right of the citizen. Nor does from one person to another for an equiva- the law impose any burden upon any instrulent in goods or money." Anderson Law mentality by which his free intercourse with Dict. As applied to interstate commerce, it the citizens of other states is effectuated. has been defined to be: "The sale by itiner- The law certainly has no reference to naviant venders, in one state, of the goods, wares, gation. and merchandise of other states, the negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made." 11 Am. & Eng. Enc. Law, 1st ed. p. 544, note. We do not think the business of procuring labor contracts to be performed in another state can be properly denominated "traffic." Labor is not an article of merchandise or a commodity. It is toil, mental and physical. It is a part of the person himself, which he may dispose of, it is true, but which is not severable from him, and which accompanies him wherever he goes. It will not be pretended that persons are the subjects of commerce. Indeed, even when slavery existed in this country, a case arose in which the right of a state to regulate the admission into its territory of slaves from other states was incidentally involved, and the majority of the judges of the Supreme Court as it was then constituted were of the opinion that the state had such right, it not being a regulation of commerce among the states, within the meaning of the Constitution of the United States. Groves v. Slaughter, 15 Pet. 449, 10 L. ed. 800. See also Com. v. Griffin, 3 B. Mon. 208.

Is the law a regulation or restriction of intercourse among the citizens of this state and those of other states? Under this branch of commerce the states are prohibited from passing any law which either restricts the free passage of the citizens of the United States through the several states, or which undertakes to regulate or restrict free communication between the citizens of the several states. A tax on the right of a citizen to leave the state, or on the right of a citizen of another state to come into the state, is a regulation of interstate commerce, and void. Crandall v. Nevada, 6 Wall. 35, 18 L. ed. 744; Henderson v. New York, 92 U. S. 259, sub nom. Henderson v. Wickham, 23 L. ed. 543; New York v. Compagnie Générale

Nor do we think it is a regulation of transportation among the states. A state has no right to impose a burden upon the means by which persons or property may be transported from one state to another. Moran v. New Orleans, 112 U. S. 69, 28 L. ed. 653, 5 Sup. Ct. Rep. 38; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, Sup. Ct. Rep. 826. Nor can a state tax an agent of a company engaged in interstate transportation, as was held in McCall v. California, 136 U. S. 104, 34 L. ed. 392, 10 Sup. Ct. Rep. 881. But this law imposes no burden upon transportation companies or their agents. Its connection with transportation is exceedingly remote. That the business of hiring laborers to go beyond the state may increase the business of those engaged in interstate transportation is true, but it is not interstate transportation itself, and consequently a law imposing a tax upon a person engaged in such a business is not contrary to the interstate commerce clause of the Federal Constitution.

We are aware that the supreme court of Alabama in Joseph v. Randolph, 71 Ala. 499, 46 Am. Rep. 347, held an act similar to the one involved in the present case contrary to the interstate commerce clause of the Constitution of the United States. But we cannot give our assent to the reasoning upon which that decision was based. The decision in State v. Moore, 113 N. C. 697, 22 L. R. A. 472, 18 S. E. 342, cited in the argument, was based upon provisions of the state Constitution, and has no bearing upon this question. No decision of the Supreme Court of the United States was cited, nor have we been able to find any, in line with the ruling made in the Alabama case. Some of the language used by different members of the court, when dealing with the subject of interstate commerce, may be broad enough to include a law of the character involved in the present case, but this is not true of any decision of that

court. The court itself has gone very far in its construction of the commerce clause of the Constitution, and we are unwilling to extend the construction further than its decisions demand. We conclude that the provision of the general tax act of 1898, imposing a tax upon emigrant agents doing business in this state, is not a regulation of, or restriction upon, any business which is properly comprehended within the term "commerce among the states;" and, this being so, the law will be held to be valid, notwithstanding it may place a burden upon a busi-leave, and the other engaged in offering them ness which may be an aid to, but not a part of, commerce among the states.

3. It is claimed that the imposition of the tax is an interference with the right of a citizen to move from one state to another, and therefore the statute imposing it is a law which abridges "the privileges and immunities of citizens of the United States," within the meaning of the 14th Amendment to the Constitution of the United States. That this objection is without merit will sufficiently appear from what is above said in dealing with the question as to whether the law under consideration is a regulation of

interstate commerce.

the objection. But, if it were otherwise, no
authority has been cited, and we know of
none, that would prevent the state from act-.
ing upon occupations (carried on within the
state) in a way to encumber some of them
with a tax or license fee, and leave other
occupations, dissimilar in tendency, though
not in nature, to the free will of those who
might be inclined to engage in them. Sup-
pose two rival establishments were in active
operation in our midst, one engaged in offer-
ing the laboring population inducements to
inducements to remain; could not the state
discriminate between the two in police and
fiscal legislation? Would she be obliged to
grant the same indulgence, and show the
same favor, to an instrumentality which
tended to depopulate her territory as to one
of opposite tendency? It is true that to go
out of the state for employment is not neces-
sarily to remove or withdraw permanently,
but, doubtless, a large percentage of hire-
lings who go out on contracts of employment
never return. Persons who make it a busi-
ness to hire laborers here for employment
elsewhere may be required to procure and
pay for a license." It was insisted in the
argument that the decision just referred to
was unsound, and permission was asked and
granted to review the same, with a view to
having it overruled. We are satisfied, how-
ever, that the conclusion reached in that
case was correct, and we adhere to the deci-
sion therein rendered.

It is further contended that the law imposing the tax is invalid because it is violative of that provision of the 14th Amendment to the Constitution of the United States which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws; the contention being that the taxing of persons en4. It was claimed that the law was violagaged in hiring laborers within the state to tive of those provisions of the Constitution perform labor beyond the limits of the state, of this state which are embodied in §§ 5699, and the failure to tax persons hiring labor-5722, 5732, 5733, 5735, 5771, 5883, Civil Code. ers to work within the state, is such a dis- In what way the law violates these different crimination as to be violative of that provi- provisions of the Constitution is not set sion of the Constitution above referred to. A forth in the pleadings, nor is any reason assimilar objection was made to the act of signed in the brief of counsel why the law is 1876, and was held by this court not to be in conflict with them. We have been unable well taken in the case of Shepperd v. Sum- to discover any antagonism between the law ter County Comrs. 59 Ga. 535, 27 Am. Rep. and the clauses of the Constitution referred 394. To quote the language of Judge Bleck-to. The right of the legislature to tax occuley in that case is all that is necessary to pations and classify the same for taxation show that the law is not subject to the ob- is so well settled now that such an objection jection made. It is there said, referring to needs nothing more than a passing notice. the act of 1876: "The act seems to us con- If the legislation now under review is viostitutional. It requires a license as prelim-lative of any provision of the state or Fedinary to carrying on a certain business, and exacts a license fee of $100, which fee becomes county revenue. Whoever engages in the business is equally subject to the terms and provisions of the act. No discrimination is made in favor of residents over nonresidents. It is said that the discrimination lies in requiring an expensive license as a condition of hiring laborers within the state to be employed beyond the state, without imposing a like burden on hiring for employment within the limits of the state. But the license required is for carrying on a business, and it does not appear that hiring for internal employment has become a business here, or is pursued as such by any person or persons. This is enough to dispose of

eral Constitution, our attention has not been called to the same, nor are we ourselves aware of any.

There being nothing in the Constitution of the United States which prohibits this state from dealing with this subject, and there being nothing in the Constitution of the state which prohibits the general assembly from enacting the law in question, it follows that the judge of the superior court did not err in remanding the accused to the custody of the officer having him in charge, to be held by him until discharged by due process of law.

Judgment affirmed.

All the Justices concur.

W. A. BRADLEY, Plff. in Err.,

v.

jury could be approached and illegally influenced in obtaining a verdict, or a mistrial;

* STATE of Georgia ex rel. C. D. HILL, So- and did in substance offer, directly or by in

licitor General.

T. S. LOONEY, Piff. in Err.,

v.

SAME.

(111 Ga. 168.)

1. The power to punish contempts is

inherent in every court of record. If the court is created by the Constitution, the legislature cannot, without express constitu

tional authority, define what are contempts, and declare that the court shall have jurisdiction over no acts except those specified. 2. The provision of the Constitution which declares that "the power of the courts to punish for contempts shall be limited by legislative acts" does not confer such authority, but only the power to prescribe the punishment after conviction. Consequently § 4046 of the Civil Code, in so far as it seeks to limit the jurisdiction of a constitutional court to punish contempts to certain specified acts, is not binding upon such courts. They may go beyond the provisions of the statute, in order to preserve and enforce their constitutional powers, by treating as contempts acts which clearly invade them.

3. That a given act may be indictable does not deprive a court of the power of dealing with it as a contempt of court.

WR

(July 10, 1900.)

RITS of error to the Superior Court for Fulton County to review judgments convicting defendants of contempt of court. Affirmed.

The specifications of the informations as they appear in the official report are as follows:

The information in each case charged that the defendant, "in said county, on or about April the 3d, 1900, did commit the offense of contempt of court by the following conduct and act, to wit: In the case of Thomas H. Malone, propounder, v. Mattie Adams, caveatrix, then and there pending and on trial in said court, when, pending said trial, it became necessary to adjourn the further progress of the cause until Monday, April the 9th, 1900, at which time the said case was to be resumed in said court before said jury, the court duly instructing said jury as to their conduct during the time of their dispersal and until they were to resume the hearing of said case in the court as above mentioned, the jury being still in charge of said case, the said [defendant] did improperly and corruptly approach [a person named], one of the attorneys engaged in the trial of said case, and did state to said attorney, in substance and effect, that a member of said

Headnotes by SIMMONS, Ch. J.

NOTE. As to legislative power to abridge the power of courts to punish for contempt, see also Hale v. State (Ohio) 36 L. R. A. 254, and note; Carter v. Com. (Va.) 45 L. R. A. 310.

timation, that he would approach said juror, or have it done, and corruptly influence and control said juror in order to obtain said verdict or mistrial." By amendment it was alleged that the defendant approached the attorney named, in the manner set out in said information, in the county of Fulton and city of Atlanta, Georgia.

Messrs. Rosser & Carter and King & Anderson, for plaintiff in error:

The Constitutions together with the act of 1833 and the adoption of the Code of 1863, and not the common law, determine superior courts' jurisdiction over contempt questions.

Article 1 of the Constitution of 1861, under the head of Declaration of Fundamental Principles, has the following: "The power of the courts to punish for contempts shall be limited by legislative acts." Code 1863, § 4902.

In the Constitution of 1887 the above words are repeated.

The Constitution that made the court commanded the legislature to restrict its power to punish for contempt.

The ordinary signification shall be applied to all words, except words of art.

Smith v. Halfacre, 6 How. (Miss.) 600; Gibbons v. Ogden, 9 Wheat. 188, 6 L. ed. 68. If the sentence of the court in this case be correct, then the constitutional provision means nothing.

The statute says that the "power of the several courts to issue attachments and inflict summary punishment for contempt shall extend to no cases except the misbehavior of any person or persons in the presence of the court or so near thereto as to obstruct the administration of justice."

The statute is restrictive, and the fundamental inherent idea of restriction is the taking of the power away from some point once recognized, and fixing it within narrow

er limits.

9

Baker v. State, 82 Ga. 776, 4 L. R. A. 128, S. E. 743; Harrell v. Word, 54 Ga. 649; Re Russell, 54 Ga. 622.

If the statute under consideration is of

doubtful interpretation it should be construed in favor of the defendants, and this for two reasons: (1) Because it is a summary proceeding; (2) because it is in the nature of a criminal proceeding.

Hale v. Burton, Dudley (Ga.) 105. Punishments for contempt are purely criminal, and the rule of strict construction applies.

Re Ellerbe, 4 McCrary, 449, 13 Fed. Rep. 530; United States v. Berry, 24 Fed. Rep. 783; Maxwell v. Rives, 11 Nev. 213; Batchelder v. Moore, 42 Cal. 412; Hydock v. State, 59 Neb. 297, 80 N. W. 902; Ex parte Poulson, 15 Haz. Reg. (Pa.) 380, Fed. Cas. No. 11,350; Ex parte Robinson, 19 Wall. 510, 22 L. ed. 207; Ex parte Buskirk, 18 C. C. A. 410, 25 U. S. App. 613, 72 Fed. Rep. 14; Baker v. State, 82 Ga. 776, 4 L. R. A. 128, 9 S. E. 743.

1

Messrs. Lewis W. Thomas and J. H. upon the courts, unless express authority is Porter also for plaintiff in error.

Mr. C. D. Hill for defendant in error.

Simmons, Ch. J., delivered the opinion of the court:

given. Each of these departments represents the sovereignty of the people. Indeed, the executive, the legislature, and the judiciary are but the servants and agents of the people. To each department the people have Information under oath was filed before given certain powers, and have declared that the judge of the superior court of the At- neither of the other departments shall interlanta circuit, charging Bradley and Looney fere therewith. The people have intrusted with contempt of court. The specifications these servants or agents with the duty of of the charges will be found in the official re- carrying out their will, and for that purport. Neither Bradley nor Looney was an pose, in one of these departments, they have, officer or juror of the court, or connected by their organic law, established certain with the case on trial. Both filed demurrers courts. Among these are the superior courts. on the grounds that the facts set out did not When these courts were established by the show that they were guilty of any contempt | Constitution, they were established with all of court; that the allegations did not show the rights and powers possessed by all courts that the contempt, if any was committed, of record prior to that time. Among these was in the presence of the court, or so near powers was that of defining and punishing thereto as to obstruct the administration of contempts of court, whether such contempts justice; that, if the facts alleged were true, were direct-that is, committed in the presthey were liable to be indicted for the viola- ence of the court or constructive, interfertion of a criminal statute. These were, in ing indirectly with the administration of substance, the grounds of demurrer argued justice. This power was incident to the before this court. The court overruled the court itself, and belonged, not to the judges demurrers, trials were had, Bradley and as individuals, but to the court. The courts Looney were adjudged in contempt, and both established by the Constitution were estabfines and imprisonment were imposed. To lished by the people, and represented the mathis judgment and sentence, and to the over-jesty of the people. Whoever disobeyed an orruling of their demurrers, Bradley and Loo- der of such a court, or was in contempt of its ney excepted. A separate information was proceedings, or did anything which tended filed against each, and they were tried sepa- to impede or corrupt the administration of rately, but the cases were argued together justice, committed a contempt against the here, and we will treat them together, as majesty of the people. Without power and they present the same questions. ability to preserve order and decorum, to preserve the purity of jury trial, and to enforce their own orders, and the like, courts could not carry out the wishes of the people. The courts established by the Constitution were therefore vested with all these necessary powers,-powers which were, at common law, possessed by all courts of record. Whatever a court of record could, under the common law, punish as a contempt, these courts had power to deal with as a contempt. This power came to them as much as did the common law. Indeed, it is a part of the common law. 1 Bailey, Jurisdiction, § 297. When the constitutional convention established our courts, it vested in them all the power necessary to carry out the purposes for which they were designed. Such a court, established with such powers, is not, in the exercise of these powers, subject to legislative control. The superior court is a constitutional court, established with these powers, and the legislature has no right, without express constitutional authority, to abridge, restrict, or modify either its jurisdiction or its powers. 1 Bailey, Jurisdiction, § 397; State v. Morrill, 16 Ark. 384; Carter v. Com. 96 Va. 791, 45 L. R. A. 310, 32 S. E. 780; Ex parte Robinson, 19 Wall. 505, 22 L. ed. 205; 7 Am. & Eng. Enc. Law, 2d ed. p. 33, and cases cited. These points were conceded by the able and learned counsel who argued these cases here, but they claimed that the Constitution of this state had granted to the legislature the express power to define what are contempts, to classify them, and to take away from the courts jurisdiction to punish as contempts any act

The power to punish for contempts is inherent in every court of justice. It is absolutely necessary that a court should possess this power in order that it may carry on the administration of justice, and preserve order and decorum in the court. As far as we can ascertain, this power has existed since courts were first established. Judge Wilmot, in 1795, in a treatise upon the subject, said he had been unable to find where it was first exercised, but, in his opinion, it was as old as the courts themselves. All the courts in their decisions, and all the text writers, lay down the same doctrine,—that this power is necessary to all courts, and is inherent in them. It is so well established that we deem it unnecessary to cite authorities upon the subject. This power being inherent and necessary, can the legislature, by defining what are contempts, limit the courts to treating as contempts such acts only as are embraced in the legislative definition? In the formation of our government, Federal and state, the three departments of government were in each Constitution ordained to be separate, distinct, and independent of each other. No one of them had any right or power to infringe upon the power or jurisdiction of the other without an express constitutional provision granting this right or power. The legislature cannot take away, restrict, or modify any of the powers conferred by the Constitution upon the executive. Nor can the executive infringe upon the powers of the legislature. Nor can either the legislative or executive abridge the powers conferred by the Constitution

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