91 U.S. 275 (1876), Welton v. State Of Missouri

Citation:91 U.S. 275, 23 L.Ed. 347
Case Date:January 17, 1876
Court:United States Supreme Court

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91 U.S. 275 (1876)

23 L.Ed. 347




United States Supreme Court.

January 17, 1876


ERROR to the Supreme Court of Missouri.

Welton was indicted, tried, and convicted in the Circuit Court for the County of Henry, in the State of Missouri, for selling goods without a license.

The first section of the statute under which the indictment was found is as follows:----

'Whoever shall deal in the selling of patent or other medicines, goods, wares, or merchandise, except books, charts, maps, and stationery, which are not the growth, produce, or manufacture of this State, by going from place to place to sell the same, is declared to be a peddler.'

The other sections prohibit a person dealing as a peddler without license, and impose a penalty therefor, and prescribe the rate of charge for such license. No license is required for selling 'by going from place to place,' the growth, produce, or manufacture of the State.

The Supreme Court, on appeal, affirmed the decision of the Circuit Court, on the ground that the statute applied solely to the internal commerce of the State, and made no discrimination against citizens of other States, but merely imposed a tax upon

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a calling or a profession, and neither directly nor indirectly upon property.

For errors in this judgment the case is brought here.


Mr. James S. Botsford and Mr. S. M. Smith for the plaintiff in error.

The Supreme Court of Missouri erred in affirming the judgment of the Circuit Court of Henry County, and adjudging the statute of the State relating to peddlers and their licenses to be valid, and not in conflict with the Constitution of the United States.

The statute of a State, which declares that a person who deals in goods, wares, and merchandise not the growth, produce, or manufacture of such State, by going from place to place to sell them, is a peddler, and, as such, imposes a license tax upon him, while it imposes no such tax where the sale is made in the same manner of like articles grown, produced, or manufactured in such State, discriminates in favor of the latter against other States, is a regulation of commerce, and is contrary to the provisions of the Constitution of the United States. Crow v. Missouri, 14 Mo. 290; State v. North & Scott, 27 id. 464; 2 Story on the Constitution (4th ed.), sects. 1056-1076; Corfield v. Coryell, 4 Wash. C. C. 371; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12id. 419; Almy v. California, 24 How. 169; Crandall v. Nevada, 6 Wall. 35; Woodruff v. Parham, 8 id. 123;Hinson v. Lott, id. 148; Ward v. Maryland, 12 id. 418; Railroad Co. v.Pennsylvania, 15 id. 232; Railroad Co. v. Richmond, 19 id. 589.

The statute attempts to derive a revenue from imports, and, to be valid, must have the sanction of Congress.

The courts below, in holding that it merely imposed a tax on the calling or profession of the vendor, and not upon the thing sold, ignore the doctrine of Brown v. Maryland, 12 Wheat. 444, that 'a tax on the occupation of an importer is in like manner a tax on importation.'

Mr. John A. Hockaday, Attorney-General of Missouri, and Mr A. H. Buckner, contra.

The statute in question does not provide a system of taxation which discriminates prejudicially against articles manufactured beyond the limits of the State, and it cannot to any extent have that effect. Osborne v. Mobile, 16 Wall. 479.

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It merely defines the calling or occupation of peddler, requires a license therefor at certain specified rates, and renders him liable to a criminal prosecution if he pursues such calling or occupation without a license. The right of a State to tax its own citizens for the prosecution of any particular business or profession within the State has not been doubted. Nathan v.Louisiana, 8 How. 73; Cummings v. Savannah, R. M. Charlt. 26; Roquet v. Wade, 4 Ohio, 114; Beal v. State, 4 Blackf. 108; Austin v. State, 10 Mo. 593; Simmons v. State, 12 id. 268; 5 How. 504, 588; 7 id. 283; 55 Mo. 288; 8 Wall. 123.

Although the doctrine is clearly settled in this country, that the States may even regulate commerce, so long as Congress does not intervene by legislation (7 Pet. 221; 11 id. 102), the question does not arise in this case. The act does not impose a tax upon property, nor does it prevent, or seek to prevent, the importation of any kind of goods whatever; and neither imposes conditions upon, nor places impediments in the way of, a free interchange of commodities with other states or countries.

The cost of the license is not controlled by the value of the goods to be sold, but by the mode in which the business is done. The foot peddler pays less for his license than a wagon or steamboat peddler, although his sales may largely exceed theirs.

As it is entirely within the province of the State to license and tax such avocations as its legislature may deem proper, and as the statute in question does not interfere with inter-State commercial relations, it is constitutional and valid.

MR. JUSTICE FIELD delivered the opinion of the court.

This case comes before us on a writ of error to the Supreme Court of Missouri, and involves a consideration of the validity of a statute of that State, discriminating in favor of goods, wares, and merchandise which are the growth, product, or manufacture of the State, and against those which are the growth, product, or manufacture of other states or countries, in the conditions upon which their sale can be made by travelling dealers. The plaintiff in error was a dealer in sewing-machines which were manufactured without the State of Missouri, and went from place to place in the State selling them without a license for that purpose. For this offence he was indicted and convicted in one of

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the circuit courts of the State, and was sentenced to pay a fine of fifty dollars, and to be committed until the same was paid. On appeal to the Supreme Court of the State, the judgment was affirmed.

The statute under which the conviction was had declares that whoever deals in the sale of goods, wares, or merchandise, except books, charts, maps, and stationery, which are not the growth, produce, or manufacture of the State, by going from place to place to sell the same, shall be deemed a peddler; and then enacts that no person shall deal...

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