In re Watson

• Decision Date: 01 December 1882
• Court: U.S. District Court — District of Vermont
• Parties: IN re WATSON.

15 F. 511

IN re WATSON.

United States District Court, D. Vermont.

December 1, 1882

S. C Shurtleff, for relator.

Joseph A. Wing, for the State.

WHEELER J.

The Revised Laws of the state of Vermont define who shall be deemed a peddler, and provide that 'no person shall be deemed a peddler by reason of selling articles of goods wares, or merchandise, which are the manufacture of the state, except plated or gilded wares, jewelry, clocks, and watches;' that no person shall be licensed as a peddler who has not resided in the state one year next preceding the application for a license; what the license fees shall be and that a person who becomes a peddler without a license in force shall forfeit not more than $300, nor less than $50. Revised Laws, Secs. 3951, 3952, 3954, 3955. The relator is a citizen of Massachusetts, and has not resided in this state and is prosecuted for becoming a peddler by selling plated wares, jewelry, and watches, manufactures of Massachusetts, without a license, and is restrained of his liberty under those proceedings. The only question made upon the hearing is whether these statutes of the state are sufficiently constitutional and valid to support such proceedings. The constitution of the United States provides that 'the congress shall have power' 'to regulate commerce' 'among the several states,' and that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. ' Article 1, Sec. 8; art. 4; Sec. 2.

The natural state of mankind is that of freedom to trade with one another, whether in the same or different communities; and as congress, which alone, under the constitution, has the power to change this freedom of trade among the states, has not done so, the freedom still exists. The Passenger Cases, 7 How. 283; Ward v. Maryland, 12 Wall. 418. This would require that the commodities of one state should be sold in another as freely as the commodities of the other. Welton v. Missouri, 91 U.S. 275; Webber v. Virginia, 103 U.S. 344. These statutes discriminate against the sale of the manufactures of other states, except plated or gilded wares, jewelry, clocks, and watches, and as to the sale of such manufactures not excepted could not be upheld; but as to those which are excepted, the manufactures of other states are left upon the same footing as the manufactures of this. The relator is prosecuted for selling excepted articles only, and there is no discrimination against that. This part of the statutes might be separated from the part which does discriminate against the origin of goods, and be upheld, although the rest could not be, if there was no discrimination against the citizenship of the relator. But as to that, these statutes, if upheld, would effectually exclude him from that class of trade, which would come within the definition of peddling, as made by the statute, within this state. The residents of the state would have the privilege of peddling within the state by paying the required license fee. The relator, not being a resident, would be prohibited from obtaining a license, and from peddling anything but manufactures of the state other than plated or gilded wares, jewelry, clocks, and watches, without a license. He would be wholly cut off from selling the articles he was selling in this state. The citizens of the state have the privilege of peddling those articles by obtaining a license therefor. He could not have that privilege, and would be denied the privilege in this state of a citizen of this state, although he is a citizen of another state. This is a privilege within the meaning of this clause of the constitution. Ward v. Maryland, 12 Wall. 418.

The only material difference between this case and that of Ward v. Maryland is that there the discrimination consisted only in an increase of license fees for persons not residents of Maryland, and the prohibition of selling without a license extended only to the city of Baltimore; while here the prohibition is absolute to non-residents as to the whole state. In that case Mr. JUSTICE CLIFFORD, in delivering the opinion of the court, said that, 'inasmuch as the constitution provides that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, it follows that the defendant might lawfully sell, or offer or expose for sale, within the district described in the indictment, any goods which the permanent residents of the state might sell, or offer or expose for sale, in that district without being subjected to any higher tax or excise than that exacted by law of such permanent residents. ' According to these principles the relator is protected by this provision of the constitution of the United States from prosecution for exercising the privilege of peddling within the state, as the citizens of the state might exercise it.

The relator is not prosecuted for peddling within the state when not a resident, but for peddling within the state without a license; and as a resident of the state so peddling like wares would be liable to similar prosecution, it is argued that there is no discrimination against his citizenship by this prosecution, and that the extent of upholding the prosecution the statute is constitutional and valid, although beyond that it may not be; that he could not be prosecuted for selling without a license if he had a license, and that to avoid such a prosecution he should pay for and obtain a license as a resident of the state would. This argument would be better founded if there was any mode provided by which he could obtain such a license. But not only is no such mode provided, but, further, his obtaining one is expressly prohibited. It is said that it is this prohibition which makes the discrimination, and that the prohibition only is not constitutional. The offense is peddling without a license. Without the provisions requiring a license there could be no wrongful lack of a license, and no offense resting in the want of one. These provisions exclude non-residents, and there can be no wrongful lack of a license as to them. These provisions all stand together to make up the offense, and the part discriminating against the relator cannot be taken away, and leave enough to make him guilty of the offense prosecuted for. The statute says to him that he shall not peddle without a license, and shall not have a license. This is equivalent to saying to him that he shall not peddle at all. It is not even claimed on behalf of the state that such a direct provision could be upheld.

In Ward v. Maryland, the respondent was prosecuted for selling without a license. The discrimination consisted in requiring a larger license fee of non-residents. If only that part of the statute requiring the larger license fee has been held unconstitutional, he would have been left to obtain a license on the same terms as residents, and been guilty for selling without so obtaining one. Still, no attempt was made to so divide the statute and uphold a part of it. After taking out the void part there was not enough left to support the prosecution, and the conviction was held bad. There is no view of the case in which this prosecution, in view of the provisions of the constitution of the United States, can be upheld, consequently the relator is restrained of his liberty contrary to the constitution of the United States, and is entitled to be discharged by this court.

Relator discharged.

STATE POWER TO REGULATE TRADE. A state may regulate its own internal commerce, ^[a] and may regulate the person and thing within its own jurisdiction, notwithstanding the regulation may have a bearing on commerce. ^[b] The power to tax all the property, business, or persons within the state is an essential attribute of sovereignty, ^[c] and is not affected by the provisions of the federal constitution, ^[d] nor repugnant thereto. ^[e] When this power is exercised for revenue purposes it is a tax, but when for regulation purposes it is not a tax; ^[f] and the authority of the state to regulate business and privileges may be exercised under its police powers. ^[g] The constitution has not deprived the legislature of the power of dividing the objects of taxation into classes; it merely requires that the burden shall be equal upon all included in the same class. ^[h]

AUTHORITY OF MUNICIPAL CORPORATIONS. A municipal corporation has no inherent power to tax, ^[i] but the legislature may confer on municipal corporations the power to tax employments as well as property; ^[j] on persons carrying on a particular vocation or traffic; ^[k] or it may restrict its power of taxation. ^[l] This power may be extended over all persons plying the vocation within the corporate limits, whether they reside there or not. ^[m] A license tax imposed on a wagon of an outside resident coming into and going out of the city is void. ^[n] But it is subject to the limitations implied in the commercial clause of the federal constitution. ^[o] Giving a license by a municipal corporation for a fee is not a regulation of commerce. ^[p]

A municipal corporation can impose no tax on any occupation unless authorized so to do by its charter. ^[q] The limitation in a charter, to the power to tax real and personal property, does not affect the right to tax business and exact a fee for the privilege; ^[r] and clauses in a charter, requiring the rates of license to be proportionate to the business, only require that the sum exacted from each person shall be fixed by the amount of his business. ^[s] When the power to license occupations is given, it involves the determination of the extent or duration and the sum to be paid, and it must be exercised exclusively by the common council; ^[t] its power should be exercised only for...