Com. v. Caldwell

• Decision Date: 28 February 1906
• Parties: COMMONWEALTH v. CALDWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 355

76 N.E. 955

COMMONWEALTH v. CALDWELL.

Supreme Judicial Court of Massachusetts, Essex.

February 28, 1906

COUNSEL

W. Scott Peters, Dist. Atty., for the Commonwealth.

Henry T. Lummis and Chas. N. Barney, for defendant.

OPINION

KNOWLTON C.J.

The defendant was prosecuted, under Rev. Laws, c. 65, § 16, for peddling tea and coffee without a license. Section 15 of this chapter permits the sale of provisions without a license, and the first question in the case is whether tea and coffee are provisions, within the meaning of this section. We think that they are not. The word 'provisions' as here used has been held to mean, 'food, victuals, fare and provender.' Com. v. Lutton, 157 Mass. 392, 32 N.E. 348; Com. v. Reid, 175 Mass. 325, 56 N.E. 617. Tea and coffee are not used as food, in the form in which they are sold by shopkeepers. They are used to make decoctions, to be taken as a beverage for their agreeable taste or their stimulating effect. In this respect they are not very different from wine and beer, which in many countries are in common use at meals. We are of opinion that they are not included in the term 'provisions,' in its ordinary sense, or in the meaning of this statute.

The next question is whether the statute is a regulation of commerce, in violation of article 1, § 8, of the Constitution of the United States, which provides that: 'The Congress shall have power * * * to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' The statute permits the sale by peddlers of agricultural products of the United States without a license while it forbids unlicensed sales of agricultural products of other countries. Many argicultural products are articles of commerce, and in this respect there is, in the statute, a discrimination in favor of articles produced in the United States. It has been held many times that such an attempt at discrimination by a state is of no effect. Welton v Missouri, 91 U.S. 275, 23 L.Ed. 347; Cook v Pennsylvania, 97 U.S. 566, 24 L.Ed. 1015; Guy v Baltimore, 100 U.S. 434, 25 L.Ed. 743; Brown v. Maryland, 12 Wheat (U. S.) 419, 6 L.Ed. 678; Com. v. Petranich, 183 Mass. 217, 66 N.E. 807; Higgins v. Three Hundred Casks of Lime, 130 Mass. 1; State v. Pratt, 59 Vt. 590, 9 A. 556; State v. Furbush, 72 Me. 493. The cases enunciating the general doctrine in the Supreme Court of the United States are very numerous, and many of them are cited and reviewed by Mr. Justice Gray, in Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430. While in many of them the discrimination was against articles coming from other states, the rule in reference to discrimination against articles of foreign production is the same. In Cook v. Pennsylvania, 97 U.S. 566-573, 24 L.Ed. 1015, Mr. Justice Miller said: 'If a tax assessed by a state, injuriously discriminating against the products of a state of the Union, is forbidden by the Constitution, a similar tax against goods imported from a foreign state is equally forbidden.' In Guy v. Baltimore, 100 U.S. 434, 439, 25 L.Ed. 743, the general rule is stated by Mr. Justice Harlan as follows: 'It must be regarded as settled that no state can, consistently with the federal Constitution, impose upon the products of other states, brought therein for sale or use, or upon citizens, because engaged in the sale therein or the distribution thereto of the products of other states, more onerous public burdens or taxes than it imposes upon the like products of its own territory.' In reference to the contention that the general rule should not apply after the imported goods have been mingled with the...