Syllabus
The Code of Maryland provided that “ 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 the state, without first obtaining .a license in the manner ■ herein prescribed; ” that the application for the license should state on oath “ the amount of said applicant’s stock of goods, wares, and merclianclise generally kept on liand by him, or the concern 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; ” and it graduated the rate to be paid for the license according to the sworn statement-of the applicant’s stock-in trade, at the principal season of sale, ranging from $15 to $150. A, a citizen and resident of New York', was indicted under this' statute for offering to sell by sample in Baltimore, without first obtaining a ' . license, goods for a New York firm, to be shipped by them directly to the purchaser in Baltimore. Held, that these enactments in the Code, as applied to A, violated that provision of the Constitution of tlie United States which grants to Congress the pow.er to make regulations of commerce among the states.
Robbins v. Shelby County Taxing District, ante, 489, affirmed and applied to .this case.
Summary
ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.
The provisions of ,tbe Code of Maryland as amended in 1880, -which, were- questioned in this case, were as follows:
■ Article 12, See. 41,.provided thatN 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, of merchandise .within this state, without first ' obtaining a license in the manner herein prescribed.” (Then followed certain exceptions not necessary to be here enumerated.)
See. 42 provided that “ when any person, body politic or corporate, shall propose to sell or barter or dispose of or to. 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 propose 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 followed certain provisions not necessary to be here stated.)
See. 43 provided that “ upon such application the applicant pba.il 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 concern in which he is engaged, at the principal seasons 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.”
Secs. 44 to 55, inclusive, prescribed 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 exceeded $1000 and was not more than $1500, to $150 if the stock exceeded $40,000. • Sec. 56, as amended, provide^ that “ if the applicant for a license lives out of the country 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 this 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 plaintiff in error was indicted for selling by sample .to one Kenney, in Baltimore, without ■ first taking out a license thterefor as required by the Code.
It was alleged in the indictment that the defendant below was 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 Kosewell, Skeel & Co., residents and citizens of the city and State of New York, and were stored in the warehouse of said' firm in the city of New York; that neither he, the defendant, nor said Kosewell, Skeel & Co., 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 defendant nor the said Kosewell, Skeel & Co., being the growers, makers, or manufacturers of said thirty packages of tea.
The indictment further charged that neither the defendant nor the said Kosewell, 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 salte in said city or state, but that Rosewefi, Skeel & Co. had their only place of business in the city of New York, where their stock in trade was and had since been kept, and where their goods, on being sold, were then and since had been shipped directly to purchasers in the State of Maryland and other parts of the United States.
The defendant demurred to the indictment; his demurrer; was overruled, and having waived his right to plead over, judgment was entered against-' him. This judgment was affirmed by the Court of Appeals of Maryland ( 51 Maryland, 251). The defendant thereupon sued out this writ of error. The cause was argued at last term, on the 20th May, 1886. A reargument was ordered, and the cause was accordingly argued at this term.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
