Welton v. the State of Missouri

Decision Date01 October 1875
Citation91 U.S. 275,23 L.Ed. 347
PartiesWELTON v. THE STATE OF MISSOURI
CourtU.S. Supreme Court

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 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, 12 id. 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.

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 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 as a peddler without a license, and prescribes the rates of charge for the licenses, these varying according to the manner in which the business is conducted, whether by the party carrying the goods himself on foot, or by the use of beasts of burden, or by carts or other land carriage, or by boats or other river vessels. Penalties are imposed for dealing without the license prescribed. No license is required for selling in a similar way, by going from place to place in the State, goods which are the growth, product, or manufacture of the State.

The license charge exacted is sought to be maintained as a tax upon a calling. It was held to be such a tax by the Supreme Court of the State; a calling, says the court, which is limited to the sale of merchandise not the growth or product of the State.

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, like all other powers, must be exercised in subordination to the requirements of the Federal Constitution. Where the business or occupation consists in the sale of goods, the license tax required for its pursuit is in effect a tax upon the goods themselves. If such a tax be within the power of the State to levy, it matters not whether it be raised directly from the goods, or indirectly from them through the license to the sealer; but, if such tax conflict with any power vested in Congress by the Constitution of the United States, it will not be any the less invalid because enforced through the form of a personal license.

In the case of Brown v. Maryland, 12 Wheat. 425, 444, the question arose, whether an act of the legislature of Maryland requiring importers of foreign goods to pay the State a license tax before selling them in the form and condition in which they were imported, was valid and constitutional. It was contended that the tax was not imposed on the importation of foreign goods, but upon the trade and occupation of selling such goods by wholesale after they were imported. It was a tax, said the counsel, upon the profession or trade of the party when that trade was carried on within the State, and was laid upon the same principle with the usual taxes upon retailers or inn-keepers,...

To continue reading

Request your trial
470 cases
  • State v. Bixman
    • United States
    • Missouri Supreme Court
    • March 5, 1901
    ...cent on the gallon for the sale of beer or malt liquors is in effect a tax upon the beer and malt liquors themselves (Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347), and being "a plain property or ad valorum tax, and being in excess of the maximum limit permitted by the constitution, is v......
  • Hunton v. Commonwealth
    • United States
    • Virginia Supreme Court
    • January 16, 1936
    ...the business of selling the coupons be a tax on the coupons themselves? * * * "True it is, that these authorities Welton State of Missouri, 1 Otto, 91 U.S. 275, 23 L.Ed. 347; Webber Virginia, 13 Otto, 103 U.S. 344, 350, 26 L.Ed. 565; Murray Charleston, 90 U.S. 432, 24 L.Ed. 760; and other c......
  • Portland Pipe Line Corp. v. City of S. Portland
    • United States
    • U.S. District Court — District of Maine
    • December 29, 2017
    ...S.Ct. 1345, 128 L.Ed.2d 13 (1994) ; Wyoming v. Oklahoma , 502 U.S. 437, 454, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992) ; Welton v. Missouri , 91 U.S. 275, 23 L.Ed. 347 (1876). This "negative command, known as the dormant Commerce Clause, prohibits states from acting in a manner that burdens the f......
  • Sea-Land Services, Inc. v. Municipality of San Juan
    • United States
    • U.S. District Court — District of Puerto Rico
    • September 18, 1980
    ...granting Congress control over interstate commerce "was to insure ... against discriminating state legislation". Welton v. Missouri, 91 U.S. 275, 280, 23 L.Ed. 347 (1876). Thus, as noted by Professor Tribe: "The Court has consistently struck down those state taxes which it concludes unjusti......
  • Request a trial to view additional results
1 firm's commentaries
5 books & journal articles
  • Table of Cases
    • United States
    • The Path of Constitutional Law Suplemmentary Materials
    • January 1, 2007
    ...F.3d 1132 (10th Cir. 2001), 1361 Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), 1604-05 Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347 (1875), 883 Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980), 316, 1101, 1166, 1175 West,......
  • The Dormant Commerce Clause: the Origin Story and the "considerable Uncertainties"- 1824 to 1945
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 52, 2022
    • Invalid date
    ...Clause, iterating "[t]he power to regulate conferred by that clause upon Congress is one without limitation . . ." Welton v. Missouri, 91 U.S. 275, 279 (1875). In Mobile County v. Kimball, the Court's broad statement "[t]hat power is indeed without limitation" refers to Congress' positive p......
  • The Sovereign in Commerce.
    • United States
    • May 1, 2021
    ...commerce but was not barred by federal law). (189.) New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988); Welton v. Missouri, 91 U.S. 275, 282 (1876) (stating that congressional inaction on interstate commerce is "equivalent to a declaration that inter-State commerce shall be free an......
  • The Supreme Court and Interstate Barriers
    • United States
    • Sage ANNALS of the American Academy of Political and Social Science, The No. 207-1, January 1940
    • January 1, 1940
    ...Bros. v. Keeling, 262 U. S. 506.10 Leisy v. Hardin, 135 U. S. 100; cf. Bald-win v. Seelig, 294 U. S. 511, 526-528.11 Welton v. Missouri, 91 U. S. 275. 72Cases 12 illustrates an approach quitedifferent from that of Marshall. It ap-peared to Taney to bevery clear that the mere grant of power ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT