Ward v. State

Miller, J., delivered the opinion of the Court. The appellant was indicted for that, not being a permanent resident of this State, he did, on the 4th of Decern ²⁸³ ber, 1868, sell, by sample, within the limits of Baltimore city, certain goods, wares, and merchandise, described in the indictment, other than agricultural products and articles manufactured in the State of Maryland, without first obtaining a license so to do, contrary to the provisions of the Act of 1868, ch. 413. It was admitted that the appellant, being at the time a citizen of the United States, and a citizen of and residing in the State of New Jersey, did commit the act and deed charged in the indictment, by selling by sample twelve bridle fronts and six leather blinkers for horse harness, without a license, and thereby violated this Act of the General Assembly of Maryland. The case was submitted for the purpose of obtaining the opinion and judgment of the Court upon the question,' whether this Act is constitutional and valid.

The Court below adjudged the party guilty, and imposed the fine prescribed in the law, and from this judgment this appeal was taken, and has been argued on notes by counsel for the appellant, and by the Attorney-General for the State. The law enacts that “ no person, not being a permanent resident of this State, shall sell, offer for sale, or expose for sale, within the limits of the city of Baltimore, any goods, wares, or merchandise, other than agricultural products and articles manufactured in the State of Maryland, within the limits of said city, either by card, sample, or other specimen, or by written or printed trade list, or catalogue, whether such person be the maker or manufacturer thereof or not, without first obtaining a license so to do.” The rate of license is fixed at three hundred dollars, to run one year from date, and the penalty for so selling without license is, for each offence, not less than four hundred nor more than six hundred dollars. The same provision, so far as applicable to a ease like this, is contained in the Code, Art. 56, sees. 37,&c.,and has been the law of the State, since 1852, a period of seventeen years. No question has hitherto been raised as to the power of the Legislature to ²⁸⁴ enact such a law.

It is now assailed upon the ground of repugnancy to two provisions of the Constitution of the United States. 1st. To that clause of the eighth section of the first article, which grants to Congress the power “ to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” 2d. To that clause of the second section of the fourth article, which declares that “ the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States.” Before examining the decisions of the Supreme Court, which, upon such questions, are binding and authoritative expositions of the Constitution, and to which the Courts of all the States should yield respectful obedience, it is proper to ascertain what the law before us is, and what it seeks to accomplish. It is not a law which, upon its face, purports to levy a tax by way of license to sell, upon either foreign or domestic imports, whilst remaining in the hands of the importer in original packages.

The indictment does not charge, nor does the record show that the goods sold by the appellant were goods of this description. Nor does the law purport to be a tax upon the transit of goods through the State for trafile or commercial purposes. But it is a tax upon a particular business or trade, carried on entirely within the limits of the State. Maryland, in common with other States, has subjected to taxation, by way of license, and as a source of revenue, every kind of business or trading carried on within her limits.

With respect to her own citizens, her laws provide that no person or corporation within this State, other than the grower, maker, or manufacturer, shall barter or sell any goods, "wares, or merchandise, without first obtaining a license in the mode prescribed, and these licenses are graded according to the amount of merchandise or stock on hand, held by each person at the principal season of ²⁸⁵ sale. There is nothing in this or any other law of the State, which prohibits or restrains non-resident merchants, manufacturers, or traders, or their agents, from bringing their goods here, and selling them in the same mode and under the same license as residents of the State. A custom, however, has grown up in recent times with merchants and manufacturers, in the large manufacturing and commercial cities and States, of travelling or sending agents or runners through other States and cities, with samples, cards, catalogues, or trade-lists of their goods, and thereby selling by retail or wholesale large quantities of merchandise, located beyond the limits of the States, where they thus sell, and not subject to the local State, county, or municipal taxation, as are like goods in the hands of resident merchants or traders, to the great detriment of the business and trade of the latter. Large sales are thus made, and an extensive and lucrative business is thus carried on, and it is the object of the law in question to search and subject to taxation, by means of a license, the trade and business thus transacted within the limits of the principal city of this State.

It is therefore a tax upon a particular business or trade, carried on in a particular mode within the limits of the State, by a particular class of persons, and not a tax upon goods or merchandise imported into the State, either from foreign countries, or from other States, and the question is as to the power of the State to impose such tax. 1st. In reference to the first clause of the Constitution of the United States above quoted, all the decisions of the Supreme Court agree, that it confers upon Congress no power of regulation or direct control over the internal commerce or domestic trade of the States. License Tax Cases, 5 Wallace, 470. As said by Mr. Justice McLean, in delivering the opinion of the Court in the case of Nathan vs. Louisiana, 8 How., 80, 82 , “ The right of a State to tax its own citizens for the prosecution of any particular business ²⁸⁶ or profession within the State, has not been doubted; and we find that in every State, money or exchange brokers, venders of merchandise of our own or foreign manufacture, retailers of ardent spirits, tavern-keepers, auctioneers, those who practice the learned professions, and every description of property, not exempted by law, are taxed.

The taxing power of a State is one of its attributes of sovereignty. And where there has been no compact with the Federal Government, or cession of jurisdiction for the purposes specified in the Constitution, this power reaches all the property and business within the State, which are not properly denominated the means of the General Government ; and as laid down by this Court, it may be exercised at the discretion of the State.” Such is.the emphatic language of the Supreme Court on this subject. Nor is it, we apprehend, less within the power of a State to tax, in tho shape of a license, any trade, business, or occupation, when carried on in its borders by those who are-not permanent residents of the State, whether foreigners or citizens of other States. Most of the States have exercised such power in the enactment of laws, requiring licenses from hawkers and peddlers, in the imposition of a tax, either direct or. by way of license, upon the agents of foreign insurancé companies, and other corporations doing business within their limits, and by laws similar in character to the one now under consideration.

In Brown vs. Maryland, 12 Wheat, 419, a law of this State, which required all importers of foreign articles to take out a license to sell their importations in the original bale or package, was held to be invalid, because repugnant to the prohibition upon the States to lay imposts or duties on imports or exports, without the consent of Congress. The same law was also declared to be in violation of the clause giving to Congress the power to regulate commerce with foreign nations, and among the several States, but the Court said that though- the importer could not be required to have a ²⁸⁷ license for selling a package of dry goods in the form in which it was imported, yet this state of things is changed, if he sells them, or otherwise mixes them with the general property of the State, by breaking up his packages, or travelling with them as an itinerant peddler. This decision, as explained by C. J. Taney in the license Cases, 5 How., 675 , draws the line between foreign commerce, which is subject to the regulation of Congress, and the internal or domestic commerce of a State, over which Congress can exercise no control, and which belongs to the States; and the same view appears to have been taken of it by C. J. Chase, in Pervear vs. Commonwealth, 5 Wallace, 475. It would be a strained construction of the power to regulate commerce “ among the several States,” to hold that it confers upon Congress the power to authorize the citizens of one State to travel through another, and sell their goods, either carried with them, or by sample, without license, whilst the citizens of the State where they thus travel and trade can be rightfully subjected to a State tax on their goods, and a State license to sell them.

But whether the clause in question confers such power or not, it is sufficient that it has never been exercised by Congress, and therefore State laws, and State regulations on the subject are valid, for the mere grant of such power to Congress, so far as it relates to a case like the present, is not, of itself, a prohibition to the States, so as to render all State laws on the subject null and void. This point, notwithstanding the difference of opinion thereon, at one time existing among the Judges of the Supreme Court, and most conspicuously manifested in the Passenger Cases, 7 How., 283 , was settled by the decisions in Cooley vs. The Board of Wardens, &c., 12 Hoto., 299, and in Crandall vs. State of Nevada, 6 Wallace, 35. No such effect can be given to the recent legislation of Congress, imposing burdens, by way of