State v. Pratt

• Decision Date: 28 May 1887
• Citation: 59 Vt. 590,9 A. 556
• Parties: STATE v. PRATT.
• Court: Vermont Supreme Court

9 A. 556

59 Vt. 590

STATE

v. PRATT.¹

Supreme Court of Vermont. Orleans.

May 28, 1887.

Exceptions from Orleans county.

Information for peddling without a license. Heard on agreed statement of facts, September term, county court, Orleans county, 1885; Boss, J., presiding. Respondent adjudged guilty. Exceptions by respondent. The respondent was employed to travel with a team, and sell goods, particularly tin-ware and brooms, and exchange the same for barter, if cash could not be obtained. He also carried for sale tea in small packages, the growth of foreign countries, and sold the same without having a license as a peddler, as required by section 3952, B. L. Vt.

The State's Attorney, for the State.

George W. Cahoon, for respondent.

This information is under §§ 3951, 3952, 3954, 3955, of the Revised Laws of Vermont, as amended by act of 1882, No. 76, p. 76, leaving off last clause in section 3952, and omitting in section 3954 all after the words, "no person shall be licensed as a peddler who is not a citizen of some one of the United States."

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, § 8; article 4, § 1; R. L. pp. 7, 13. "No state shall, without the consent of the congress, lay any imposts or duties on imports or exports." Article 1, § 10; R. L. p. 10. Article 14. "Nor shall any state deprive any person of life, liberty, or property without due process of law." R. L. p. 18.

The constitution of Vermont, art. 1, provides "that all men are born equally free and independent, and having certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property." R. L. p. 32. Article 9. "That every member of society hath a right to be protected in the enjoyment of life, liberty, and property." Id. p. 33. We claim the statutes upon which the information against respondent is predicated, and upon which he was found guilty of peddling without a license, are unconstitutional, and respondent should be discharged, because—First, the statute assumes the power to "regulate commerce among the states;" second, because it absolutely prohibits aliens from being licensed as peddlers, ("No person shall be licensed as a peddler who is not a citizen of some one of the United States." Section 3954;) and by section 3951 imposes a heavy penalty upon every person who becomes a peddler without a license,—denying to one class of persons, absolutely, privileges of "acquiring property," by their vocation or trade, granted to another class of persons, citizens by birth or naturalization.

"A state statute providing that no person shall be deemed a peddler by selling articles which are the manufacture of the state, and that no person shall be licensed as a peddler who has not resided one year in the state, and providing penalties for peddling without a license, held unconstitutional, as discriminating against non-residents, and assuming the power to regulate commerce among the states." In re Watson, (U. S. D. Ct. Vt. Dec. 1, 1882, Wheeler, J.) 28 Alb. Law J. 12, 15 Fed. Rep. 511.

In Welton v. Missouri, the supreme court of the United States says: "The general power of the state to impose taxes in the way of licenses upon all pursuits and occupations within its limits is admitted." But, inferentially, this power is denied, unless taxes in the way of licenses are imposed upon all pursuits and occupations.

The case finds that respondent carried, besides tin-ware and brooms manufactured by his employers, merchants at Lyndon, "tea of foreign growth, and a few cotton and woolen goods," and sold said goods without a license. This we claim he had a right to do. The statute requiring a license is unconstitutional. The statute, (R. L. § 3952,) in defining who are peddlers, and liable to pay for a license, enumerates persons "carrying to sell, or exposing for sale, goods, wares, or merchandise, the growth or manufacture of a foreign country, or cotton, linen, woolen, or silk goods, etc., which are the manufacture of the United States."

"A license tax required for the sale of goods is in effect a tax upon the goods themselves. A statute which requires the payment of a license tax from persons who deal in the sale of goods, wares, and merchandise which are not the growth, produce, or manufacture of the state, by going from place to place in the state to sell the same, and requiring no license from persons selling in a similar way goods which are the growth, produce, or manufacture of the state, is unconstitutional. That power was vested in congress, to insure uniformity of commercial regulation against discriminating state legislation. It covers property which is transported as an article of commerce from foreign countries, or among the states." "The inaction of congress in prescribing rules to govern interstate commerce is equivalent to its declaration that such commerce shall be free from any restrictions." Welton v. Missouri, 91 U. S. 275; Brown v. Maryland, 12 Wheat. 419; Waite, C. J., in Hall v. DeCuir, 95 U. S. 485, 549; State Tonnage Tax, 12 Wall. 204; Sherlock v. Ailing, 93 U. S. 99; Railroad v. Pennsylvania, 15 Wall. 282; Cook v. Pennsylvania, 97 U. S. 566; Guy v. Baltimore, 100 U. S. 434; Sewing-Machine Co. v. Gage, Id. 679; Tiernan v. Rinker, 102 U. S. 123; Mobile v. Kimball, Id. 691; Webber v. Virginia, 103 U. S. 344, 351; Walling v. People, 6 Sup. Ct. Rep. 454, (U. S. Sup. Ct. Jan. 1886, cited in Alb. Law J. vol. 33, No. 13, p. 254;) State v. Furbush, 72 Me. 493; W. U. Tel. Co. v. Texas, 105 U. S. 460; Brown v. Houston, 114 U. S. 631, 5 Sup. Ct. Rep. 1091.

"Commerce among the states in any commodity can only be free when the commodity is exempted from all discriminating regulations and burdens imposed by local authority, by reason of its foreign growth or manufacture." Webber v. Virginia, Walling v. People, supra.

The statute is entirely silent, or, in other words, requires no license for carrying to sell, or exposing for sale, goods, wares, or merchandise, the growth or manufacture of the state; whereas it does require a license for carrying to sell goods of a foreign growth or manufacture. Again, denying a license to an alien is in direct conflict with article 4, § 2, and the fourteenth amendment of the constitution of the United States, and articles 1 and 9 of the constitution of Vermont.

"The constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and to insure to all persons the enjoyment of such lights." Ex parte Virginia, 100 U. S. 339. "The prohibitions of the fourteenth amendment are directed to the states, and they are, to a degree, restrictions of state power. It is these which congress...