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Opinion of the Court.

291 U.S.

patient by testimony of a nurse who attended the consultation. See Culver v. Union Pacific R. Co., 112 Neb. 441, 450; 199 N.W.794; cf. Mutual Life Ins. Co. v. Owen, 111 Ark. 554; 164 S.W. 720. It is said that the stenographer here similarly stood in a confidential relationship to the petitioner and that the communication to her of the contents of petitioner's letter to his wife should, on grounds both of reason and convenience, be protected by the privilege which the law extends to confidential communications privately made between husband and wife.

We may assume for present purposes that where it is the policy of the law to throw its protection around knowledge gained or statements made in confidence, it will find a way to make that protection effective by bringing within its scope the testimony of those whose participation in the confidence is reasonably required. It may be that it would be of little worth to forbid the disclosure of information gained by a physician from the examination or consultation of his patient, if the nurse, necessarily present, could reveal it. See Culver v. Union Pacific R. Co., supra; Mississippi Power & Light Co. v. Jordan, 164 Miss. 174; 143 So. 483. It may plausibly be urged that the

; privilege of attorney and client would be as often defeated as preserved if it did not draw within its sweep the testimony of clerks in the lawyer's office. See Sibley v. Waffle, supra.

But it is unnecessary now to deterinine the latitude which may rightly be given to the privilege which the law confers upon either of these relationships, for no considerations such as those suggested apply to marital communications under conditions disclosed here. Normally husband and wife may conveniently communicate without stenographic aid and the privilege of holding their confidences immune from proof in court may be reasonably enjoyed and preserved without embracing within it the

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testimony of third persons to whom such communications have been voluntarily revealed. The uniform ruling that communications between husband and wife, voluntarily made in the presence of their children, old enough to comprehend them, or other members of the family within the intimacy of the family circle, are not privileged, Linnell v. Linnell, 249 Mass. 51; 143 N.E. 813; Cowser v. State, 70 Tex. Cr. Rep. 265; 157 S.W. 758; Fuller v. Fuller, 100 W.Va. 309; 130 S.E. 270, is persuasive that communications like the present, even though made in confidence, are not to be protected. The privilege suppresses relevant testimony and should be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved. Nothing in this case suggests any such necessity.

We do not intimate whether in the present circumstances the wife's testimony, not offered against her husband, would likewise be freed of the restriction. Cf. Nash v. Fidelity-Phenix Fire Ins. Co., 106 W.Va. 672; 146 S.E. 726.





No. 166. Argued December 11, 13, 1933.-Decided January 8, 1934.

1. Cotton produced locally, shipped into a warehouse, and there held

at the exclusive disposition of its owners—the holders of negotiable warehouse receipts-retains its local status, although in the usual course the owners will ultimately order that it be compressed and delivered to a rail carrier for shipment to ultra-state destinations of

their selection. P. 21. 2. The business of storing and compressing the cotton, in such cir

cumstances, is local, and a non-discriminatory state tax upon it is consistent with the commerce clause of the Constitution. P. 21. 46305°---34 -2

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3. The fact that a contract between the warehouseman and the inter

state rail carrier by which the cotton has been brought to storage and by which, in the ordinary course, it ultimately will be transported beyond the State at a single rate from point of origin to point of destination designates the warehouseman as the carrier's agent and the warehouse as the carrier's depot, can not convert

what is a local business into an interstate business. P. 22. 4. Licensing of a warehouse under the United States Warehousing Act

does not make of it a federal instrumentality or withdraw its busi

ness from state taxation. P. 22. 5. The mere extension of control over a business by the National Gov

ernment does not withdraw it from a local tax which presents no

obstacle to the execution of the national policy. P. 23. 166 Miss. 739; 147 So. 325, affirmed.

APPEAL from the affirmance of a judgment in favor of a tax collector, based on a directed verdict, in an action seeking to recover moneys collected by him as privilege taxes.

Mr. Garner W. Green, with whom Mr. Marcellus Green was on the brief, for appellants.

Mr. W. W. Pierce, Assistant Attorney General of Mississippi, with whom Mr. Greek L. Rice, Attorney General, was on the brief, for appellee.

MR. JUSTICE STONE delivered the opinion of the Court.

This case comes here on appeal, under § 237 of the Judicial Code, for review of a judgment of the Supreme Court of Mississippi upholding a state excise tax assailed as a forbidden imposition upon a federal instrumentality, and as infringing the commerce clause of the Federal Constitution. 166 Miss. 739; 147 So. 325. Sections 3, 57, 220, 221, 225, 242, of c. 88, of the General Laws of Mississippi of 1930 exact an annual license tax for the privilege of operating a cotton compress, which is graduated according to the number of bales of cotton compressed per annum.

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Sections 3 and 63 levy a similar additional tax upon each person operating a warehouse, whether in conjunction with a compress or not, which is graduated according to the storage capacity of the warehouse.

Appellant, a Delaware corporation which maintains and operates a cotton warehouse and compress at Cleveland, Mississippi, brought the present suit to recover taxes imposed with respect to both classes of business, paid under protest to appellee, the tax collector, in 1932. The case was tried on an agreed statement of facts, from which it appears that the appellant is licensed by the Secretary of Agriculture to conduct a warehouse for the storage of agricultural products under the provisions of the United States Warehouse Act of August 11, 1916, c. 313, 39 Stat. 486, as amended, c. 10, Tit. 7, U.S.C.A. Appellant has given a bond for the faithful performance of the duties which are exacted of a licensed warehouseman by the Act and by the rules and regulations of the Secretary of Agriculture, and its business as a warehouseman is subject to his inspection and control as the statutes and regulations provide.

Cleveland is a shipping point for baled cotton in interstate and foreign commerce and is a market in which cotton is purchased by brokers and dealers from those who produce it within the state. The purchases are made for resale or to fulfill contracts for sale of cotton without the state. In the usual course of business the purchased cotton, after it is ginned, is transported to appellant's warehouse for storage and compression, about 25% arriving by automobile truck or wagon and the remainder by rail over the line of the single railroad serving Cleveland. Upon delivery appellant issues its negotiable warehouse receipts for the cotton, in the form and manner provided by the United States Warehousing Act. The right to demand delivery of the cotton or otherwise control its

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disposition is reserved to the holders of the receipts. A small part of the stored cotton, from 1% to 10%, is resold within the state to buyers who sell it to purchasers without the state, but all except a negligible part of it is ultimately shipped to points outside the state. Upon shipping orders given by the holders of the warehouse receipts, appellant compresses the cotton into bales of standard weight and size, suitable for shipment, and delivers them to the rail carrier for interstate transportation. The movement of the cotton out of the warehouse is directed by the owners of it, who hold the warehouse receipts. Its destination is not determined until the owner gives shipping instructions to appellant and shipment is not made until surrender of the warehouse receipts. The compress charges are paid by the carrier, which it adds to the charge for carriage, and in the case of cotton brought to the warehouse by rail carriage, the through interstate rail rate is applied from the point of origin to destination instead of the combination rate, which is the sum of the intrastate rate to Cleveland and the interstate rate from that point to destination. The identity of the cotton is not preserved in reshipping it and substitution is permitted with the understanding that the through rate from point of origin to destination without the state shall not be affected.

By written agreement with the railroad company, appellant is designated as the agent of the railroad to receive the cotton from and deliver it to the railroad and to load and unload cotton upon and from its cars. The agreement also provides for the use of the warehouse by the railroad as a cotton depot.

Upon this state of facts appellant argues that the tax upon the business both of warehousing and of compressing the cotton is a forbidden burden on interstate commerce, and that the warehouse tax is unconstitutional

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