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, to the Clerk of the Court of Common Pleas, for a license therefor.” (Then follow certain provisions not necessary to he here stated.)

Sec. 43 — Provides, “ Upon such application the applicant shall state to the clerk on oath, ******* the amount of said applicant’s stock of goods, wares and merchandise generally kept on hand by him, or the concérn in which he is engaged, at the principal season of' sale, or if said applicant shall not have previously engaged in such trade or business, the amount of such stock he expects to keep as aforesaid.”

*265 Secs. 44 to 55, inclusive, prescribe the rate or sum to be paid for such license, graduated according to the sworn statement of the applicant’s stock in trade, at the principal season of sale; ranging from $15 if the stock exceed $1000, and is not more than $1500 — to $150 if the stock exceed $40,000.

Sec. 56, as amended, provides, “ If the applicant for a license lives out of the county or city wherein he proposes to carry on such business of selling, bartering, or otherwise disposing of, or offering for sale such goods, chattels, wares and merchandise. Or if the applicant lives out of the State, or is unable to apply in person by reason of sickness or bodily infirmity, his or her agent may apply for license and make the affidavit as hereinbefore provided.”

The foregoing statement of the provisions of the Code, as amended by the Act of 1880, is sufficient to show that the plaintiff in error clearly falls within their operation. He is charged in the indictment with selling in the City of Baltimore, by sample, thirty packages of tea, without first taking out license therefor. The language of the Code applies alike to residents and non-residents, and applies to all sales whether made by sample or otherwise.

It remains to bo seen whether these statutory provisions are in any respect in violation of the Constitution of the United States.

It is clear that they are free from the objection which was declared in Ward’s Case, to be fatal to the validity of the sections then under consideration;- as these do not impose a discriminating tax upon non-residents ; on the contrary, the same rate of license is required of citizens of the State as of non-residents. Eor this reason it seems to us they are not in violation of Art. 4, sec. 2, of the Constitution of the United States. Woodruff vs. Parham, 8 Wall., 123 ; Hinson vs. Loft, Id., 148; Machine Co. vs. Gage, 100 U. S., 676 . Nor are they, in our opinion, in conflict with Art. 1, sec. 8, of the Constitution, which d'e- *266 dares that “ Congress shall have power to regulate commerce among the several States.”

The statute under consideration is not in any sense a restriction upon commerce, it does not purport to he a tax on the transit of goods through the State for commercial purposes ”• — -It merely “imposes a tax hy.way of license upon a particular business or trade carried on entirely within the limits of the State.”

“ The power of a State to impose a tax, in the way of license, upon all pursuits and occupations within its limits has never been seriously questioned.” Nathan vs. Louisi ana, 8 How., 80, 82 ; License Tax Cases, 5 Wall., 472 ; Welton vs. Missouri, 91 U. S., 278 .

We have been unable to perceive the force of the objections, to the validity of the provisions of the Code, based upon their supposed conflict with the Articles and sections of the Constitution to which we have referred. i

■ It has been argued on the part of the plaintiff in error, that the effect of the Code is to impose a tax upon property situated out of the limits of the State, and not within its jurisdiction, which it is not within the constitutional power of the Legislature to impose. In our judgment, this is not the true construction or effect of the law. It is not a tax upon the goods constituting the capital stock of the person obtaining the license; but the Legislature in regulating the rate or cost of the license, has adopted as a standard the amount or value of the stock in trade of the dealer. Domestic traders are required to pay the same rate of license. This is imposed on them as a tax upon their occupation or business as vendors of goods; it is not, and has never been considered as a tax upon their stock of goods as property; for that is taxed under our general laws as property within the State. So where a person not residing within the State, who wishes to carry on the same business within its limits, is required to pay the same rate of license, regulated by the same standard, *267 it cannot be successfully maintained that tlxe license is a tax upon his stock of merchandise, situated in the State in which he resides.

(Decided 22nd July, 1881.)

Being of opinion that the provisions of the Code, as amended by the Act of 1880 are constitutional and valid, the judgment of the Criminal Court, will be affirmed.

Judgment affirmed.