Corson v. State

Bartol, C. J., delivered the opinion of the Court. This case comes up on a writ of error from the Criminal Court of Baltimore. The plaintiff in error was indicted for selling by sample to one Kenney in the City of Baltimore thirty packages of tea, without first taking out a license therefor as required by the Code, as amended by the Act of 1880, ch. 349. It is alleged in the indictment that the plaintiff in error is a citizen and resident of the City and State of New York, that the thirty packages of tea so sold were the property of the firm of Rosewell, Skeel and Company, residents and citizens of the Gity and State of New York, and were stored in the warehouse of said firm in the City of New York; that neither he, the plaintiff in error, nor said Rosewell, Skeel and Company had any store or place of business, temporary or permanent, or any stock in trade, other than samples of tea in the State of Maryland, and neither the plaintiff in error, nor the said Rosewell, Skeel & Co. being the growers, makers or manufacturers of said thirty packages of tea.

The indictment further charged that neither the plaintiff in error nor the said Rosewell, Skeel & Co. intended to keep any stock in the City of Baltimore, or-to be engaged in any trade or business in said city or State, otherwise than by, selling by samples as aforesaid. That neither had any principal season of sale in said city or State, but that Rosewell, Skeel & Co. had their only place of business in the City of New York, where ²⁶³ tlieir stock in trade was and lias since been kept, and where their goods, on being sold, were then and since have been shipped directly to purchasers in the State of Maryland and other parts of the United States. The plaintiff in error demurred .to the indictment, his demurrer was overruled and having waived his right to plead over, judgment was entered against him. 'Whereupon he applied to have the record removed to this Court, as upon writ of error. The subject of licenses to traders and others is regulated fay Art. 56 of the Code.

The With, 38ih, 39ih and 40ih sections of that Article, related only to non-residents of the Slate, and prescribed the license required to entitle them “ to sell, offer for sale, or expose to sale within the limits of the City of Baltimore, any goods, wares or merchandise whatsoever ” (with certain specified exceptions) “ either by sample, card or other specimen, or by written or printed trade list or catalogue.” Those sections regulated the cost of such license, required a different, and a larger amount to be paid therefor, than was required of residents of the State, and prescribed a penalty for their violation. They came before the Supreme Court of the United States for examination in Ward vs. Maryland, 12 Wall., 418 , and were adjudged to be unconstitutional and void; because they imposed a discriminating tax upon persons not permanent residents of the State, different from that imposed upon citizens of the State, and were therefore in violation of Art. 4, seo. 2, of the Constitution of the United States, which provides that “ the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” Since that decision, the sections mentioned have not been attempted to be enforced, and although they have not been expressly repealed, they are properly regarded as no longer valid or operative. By the Act of 1880, oh. 349, certain amendments have been made to the Code, which we shall proceed to notice. ²⁶⁴ Sections 41 to 57 inclusive, as originally enacted, related only to resident traders. By the Act of 1880, sections 41, 42 and 56 were repealed, and certain sections, numbered in the same way, were enacted in lieu thereof, which by their terms embrace all persons, whether residents or non-residents of the State; while sections 43 to 55 inclusive remain unchanged.

The provisions of the Code as thus amended and now in force are as follows : Sec. 41 — Provides that Ci no person or corporation, other than the grower, maker or manufacturer, shall barter or sell, or otherwise dispose of, or shall offer for sale any goods, chattels, wares or merchandise within this. State, without first obtaining a license in the manner herein prescribed.”. (Then follow certain exceptions not necessary to he here enumerated.) Sec. 42 — Provides, when any person, body politic or corporate, shall propose to sell or barter, or dispose of, or offer for sale anything mentioned in the preceding section, except spirituous or fermented liquors, he shall apply to. the Clerk of the Circuit Court of the county in which he proposes to carry on such selling or bartering, or disposing of goods, wares, chattels or merchandise, or if he proposes to carry on such selling or bartering, or disposing of' goods, wares, chattels or merchandise in the City of Baltimore,