Crow v. State

• Decision Date: 31 March 1851
• Citation: 14 Mo. 237
• Parties: WAYMAN CROW ET AL. v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

14 Mo. 237

WAYMAN CROW ET AL.

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

Crow and others, defendants, were jointly indicted by the grand jury of St. Louis county for dealing as merchants without a license as required by law. The indictment contains six counts substantially as follows: The first count charges that defendants, as co-partners in trade as merchants at St. Louis county, on, &c., and divers other days and times between that day and the day of the finding of this indictment, unlawfully did receive for sale, and unlawfully did deal as merchants in the selling of goods, wares and merchandise, not the growth, produce or manufacture of this State, by then and there, &c., receiving for sale, and selling as merchants various articles of dry goods in said count mentioned, at a place occupied by the defendants for that purpose, to divers persons, to the jurors unknown, at a certain per yard for said goods, without having a license therefor in force. The second count is the same as the first, with the exception that it omits to allege that the goods were not the growth, produce, or manufactures of this State. The third count, in addition to the allegations contained in the first, alleges that the goods were imported into this State by defendants. That the goods were the growth, produce, and manufacture of England, in Grea Britain, a foreign country, upon which duty had been paid by defendants under the laws of the United States at St. Louis county, and sold in the original unbroken packages. The fourth count, in addition to the allegations of the first count, alleges that defendants imported the goods into this State from various sister States of the Union, and sold the same in the original imported packages and in broken packages, said goods being of the growth, produce and manufactures of said sister States. The fifth count is the same as the fourth, except that it alleges that the goods were sold in the original imported packages at wholesale. The sixth count is the same as the first, except that it does not charge defendants with dealing as co-partners.

The defendants filed a general demurrer to this indictment, and the court sustained it to the second and third counts, and overruled it as to the others. To the decision of the court sustaining the demurrer to the second and third counts, the State excepted, and to the decision overruling the demurrer to the other counts, defendants excepted.

Upon the trial the following statement was read in evidence to the jury: “The defendants admit that at the time mentioned in the indictment, they were merchants doing business in St. Louis. That at the time specified in the indictment, they had received for sale at their store in the city of St. Louis, the goods and merchandise mentioned in the indictment, in manner and form as therein charged, and that they had no license then in force as required by statute, and have not at any time since had any such license. But that all the goods and merchandise so received and offered for sale by defendants, were imported directly by defendants into this State from other States of the Union, and were not of the growth, produce or manufactures of this State. And it is further submitted that the defendants exercised the business of merchants by dealing in the selling of the goods, wares, and merchandise mentioned in the counts held good upon demurrer at the times and in manner and form as therein charged.”

Defendants then asked the court to give the following instructions, to-wit: “The court instructs the jury that if the defendants received for sale, or sold at their store in St. Louis no other goods except such as were imported into this State by them directly from other States of the Union, the jury will find defendants not guilty; which instruction the court refused, and defendants excepted. The jury found defendants guilty, and assessed a fine against each of them amounting to fifty dollars. Defendants then moved the court to set aside the verdict and grant a new trial, for the following reasons, to-wit: 1st. Because the court refused the instructions to the jury asked on behalf of the defendants. 2nd. Because the verdict and judgment on the facts and law ought to have been for the defendants. Defendants also moved the court to arrest the judgment, for the reasons that the indictment is insufficient in this: that it does not set forth or charge any offense in law against the defendants. Both which motions the court overruled, and rendered judgment upon the verdict, to which defendants excepted and appealed to this court.”GLOVER & CAMPBELL, for Appellants.

1. The several acts of the General Assembly of Missouri, as follows, to-wit: “An act to regulate license and taxes on Merchants and Grocers,” approved March 12, 1849. An act to amend an act entitled “An act to license and tax Merchants,” approved March 27, 1845. Approved February 13, 1847. “An act to encourage Agriculture,” approved February 6, 1847. “An act to license and tax Merchants,” approved March 25, 1845; and “an act to sustain the credit of the State,” approved February 16, 1847; being all in pari materia, must, upon a well established principle of law, be construed as if they were all parts and parcels of one single statute, and adjudged accordingly.

2. That from the several provisions of the statutes, it is plainly deducible that all goods, wares and merchandise, introduced into this State from beyond its limits, and received for sale by any merchant or grocer, are required to pay 20 cents for $100 value thereof, provided the packages have not been broken; while there is no tax whatever required to be collected by these statutes from goods, wares and merchandise of the same kind, produced, manufactured or grown, within the State.

3. That such a discriminating tax, if sanctioned by the principle of the government, may be used to exclude all foreign productions, and lay a perfect embargo upon trade between the citizens of Missouri and the whole world.

4. That such a discriminating tax is not essential to the prosperity or dignity of the State government. They have the right to tax all property within the limits of the State (once mixed up with the common mass of the domestic property of the State), for the purposes of revenue, but no object of State policy calls for or sanctions a discriminating tax like this, tending directly to exclude from its borders all foreign production. The power to tax is conceded to the State; but the power to tax in the manner here adopted is denied.

5. The States have the power to tax property within their limits and not employed in commerce, “between the States or with foreign nations, or ‘Indian tribes,” to make internal improvements, to establish quarantines, promote health and education, punish crime, protect property, life and liberty, restrain vicious indulgences, and do many other things which may be generally defined as following within the compass of State police power. 12 Conn. R. 7; 4 Shep. 9; 3 Ala. R. 137; 24 Pick. 352, 359; 14 Ohio R. 586; 1 Humph. 94; 9 Wheat. 203; 4 Pick. 460; 3 Dana; 3 Blacks. 193; 13 Serg. & Rawle, 405; 1 Dev. & Bat. 19; 4 Blacks. 107; 3 Smedes & Marsh. 584; 4 Dev. & Bat. 320; 1 Denio, 540; 4 Ohio R. 107; 8 Ohio R. 521; 8 How. 78; 10 Mo. R. 591; 2 Peters 250; License cases, 5 Howard, and Passenger cases, 7 Howard. There is more attempted by these Missouri statutes than is authorized by the mere taxing power of the State, or than has ever been conceded to any branch of State police power. The statutes in question are regulations of commerce with foreign nations, and between the States, and no State can regulate commerce, the power being vested in the government of the United States by the third number of the 8th section of the first article of the Constitution of the United States. 1 Brock. 423; 2 Story, 455; 2 Spears, 769; 1 U. S. Dig. 404; 3 Cowen, 713; 2 Story's Const. 511, 508; Madison Papers, 112, 113; 1 Kent, 269, and note (a); 9 Wheat. 196, 222; 5 Wheat. 23; 14 Peters, 570; 15 Peters, 504; 12 Wheat. 448; 11 Peters, 102; License cases, 5 Howard; Passenger cases, 7 Howard; 3 Mo. R. 1, State v. Tracy, &c.

7. That the discriminating tax here imposed, is in violation of the second number of the tenth section of the first article of the Constitution of the United States, which denies to the States the power to lay duties on imports or exports, without consent of Congress. See Madison Papers, 119, and the authorities last quoted.

8. The discriminating tax in question is imposed in violation of the Constitution of Missouri, which requires “all property subject to taxation in the State to be paid in proportion to value.” See 19th section of the 13th article, Constitution of Missouri; 1 Gill's Md. R. 308; 5 Pike (Ark.) R. 142, 207; 2 Pike (Ark.) R. 207, 309; 3 Scam. (Ill.) R. 138; 1 Yerger (Tenn.) R. 456.

9. A tax by way of license on the property holder, graduated by the amount of property he holds, or may hold, is a tax indirectly on the property itself. The difference between the direct tax and the license tax, is merely formal; both are property taxes in the meaning of the Constitution.

10. The question in this case is not one merely of intention. If the State has assumed to exercise a power which does not belong to it, its acts are void, no matter how justifiable the motives.

CROCKETT & KASSON, on same side. I. The law licensing and taxing merchants, in its present form, is contrary to the Constitution of the State of Missouri. Art. 13; Decl. Rights, § 19. II. Said law, as now existing, is contrary, also, to the provisions of the Constitution of the United States, and in conflict with the supreme law of the land. Art. 1, § 8, pp. 1, 3; § 9, p. 1; § 10, p. 2.1. The State Constitution provides that “all property subject to taxation in this State shall be taxed in proportion to its valuation.” 2. The United States' Constitution provides “t...