# Nicholson v. City of Forrest City > Supreme Court of Arkansas · March 6, 1950 · 216 Ark. 808 URL: https://www.frixlaw.com/law-library/cases/9683891 ## Case - **Full name:** Nicholson, Copeland and Bean v. City of Forrest City - **Court:** Supreme Court of Arkansas - **Decided:** March 6, 1950 - **Citations:** 216 Ark. 808; 228 S.W.2d 53; 1950 Ark. LEXIS 629 - **Precedential status:** Published - **Opinion:** Dissent by MoFaddin - **Judges:** Leflar, Grippin, Mofaddin, Millwee - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683891 ## Opinion text Ed. F. MoFaddin, J. (Dissenting). I dissent from so much of the majority holding as concerns the photographer Nicholson; because I am of the opinion that as to him the judgment should be affirmed for either of two reasons: (1) —His work was localized to such an extent that it was removed from interstate commerce; and (2) —Even if his work was in interstate commerce, nevertheless, the tax of $11 per year was not ‘ ‘ an undue burden on interstate commerce.” To elucidate: (1) —Nicholson transported his picture-taking equipment into Forrest City, rented quarters for a studio, required patrons to come to the studio, and there posed them for their pictures. These acts are far more than those of a solicitor or a proof-passer. Nippert v. Richmond* is the authority for the holding that the solicitor, Copeland, and the proof-passer, Bean, were engaged in interstate commerce; the so-called “Drummer Cases,” mentioned in the footnote to the majority opinion, also support the conclusion that the solicitor and proof-passer were engaged in interstate commerce. But neither in the Nippert case* nor in any of the “Drummer Cases” do I find a situation comparable to that of the photographer, Nicholson, in the case at bar. The majority, in holding that he was engaged in interstate commerce, is going-further than the Supreme Court of the United States went in the Nippert case.* It is my opinion that the photographer’s work was localized to such an extent that it was removed from interstate commerce; and for this reason his conviction should be affirmed. (2) —But, even if the photographer, Nicholson, was in interstate commerce in performing all of the matters mentioned, still I am not willing to say that a tax of $11 per year, required to be paid by him, would be “an undue burden on interstate commerce”; and $11 per year is the tax involved in the case at bar. In Nippert v. Richmond * the tax was $50 per year. Somewhere, between fifty dollars and zero, there is an amount that ceases to be “an undue burden on interstate commerce”; and $11 seems to me as such an amount. Nippert v. Richmond* recognizes that interstate commerce must pay its way. Here is the language: “As has been so often stated but nevertheless seems to require constant repetition, not all burdens upon commerce, but-only undue or discriminatory ones are forbidden. ... “There is no lack of power in the State or its municipalities to see that interstate commerce bears with local trade its fair share of the cost of local government, more especially in view of recent trends in this field, McGoldrick v. Berwind-White Coal Min. Co., 309 U. S. 33 , 84 L. Ed. 565 , 60 S. Ct. 388 , 128 A. L. R. 876, supra.” Until the United States Supreme Court holds that a municipality cannot collect any occupation tax except one based on income — and Nippert v. Richmond* does not so hold — then I am unwilling to deny municipalities the right to collect a mere tax of $11 per year from transient photographers, when (a) local photographers pay the same amount, and (b) there is no evidence that a tax based on income would be less than the $11 per annum. For these reasons I respectfully dissent from so much of the majority opinion as reverses the judgment of conviction against the photographer, Nicholson. 327 U. S. 416 , 90 L. Ed. 760 , 66 S. Ct. 586 , 162 A. L. R. 844. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683891. Public record. Not legal advice.