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WARD v. MARYLAND.

December 1, 1870

WARD
v.
MARYLAND.



ERROR to the Court of Appeals of the State of Maryland; the case being this: The Constitution of the United States, in one place, thus ordains: 'ARTICLE IV. Sec. 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' Also thus, in another: 'ARTICLE I. Sec. 8. The Congress shall have power to regulate commerce among the several States.' With these provisions in force, as fundamental law, the State of Maryland passed two general laws regulating the subject of traders.*fn1 One part of the enactment regulated traders resident within the State, and another sought to regulate traders not so resident, but seeking to do business there, and both parts required the party trading or seeking to trade to take out and pay for a license. These were the sections relating to TRADERS RESIDENT OF MARYLAND. § 41. No person within this State other than the grower, maker, or manufacturer, shall barter or sell any goods, chattels, wares, or merchandise, without first obtaining a license in the manner herein prescribed. § 42. When any person, body politic or corporate, shall propose to sell or barter anything mentioned in the preceding section except spirituous or fermented liquors, he shall apply to the clerk of the Circuit Court of the county in which he may reside for a license therefor. § 43. Upon such application, the applicant shall state to the clerk, on oath, the amount of his stock of goods, generally kept on hand by him, or the concern in which he is engaged, at the principal season of sale. § 44. If the amount of the applicant's stock in trade does not or will not exceed $1000, the sum of $12 shall be demanded and received by said clerk from said applicant before granting the license. § 45. If more than $1,000 and not more than $15,000, the sum of $15. § 46. If more than 1,500 and not more than 2,500, the sum of 18. § 47. If more than 2,500 and not more than 4,000, the sum of 22. § 48. If more than 4,000 and not more than 6,000, the sum of 30. § 49. If more than 6,000 and not more than 8,000, the sum of 40. § 50. If more than 8,000 and not more than 10,000, the sum of 50. § 51. If more than 10,000 and not more than 15,000, the sum of 65. § 52. If more than 15,000 and not more than 20,000, the sum of 80. § 53. If more than 20,000 and not more than 30,000, the sum of 100. § 54. If more than 30,000 and not more than 40,000, the sum 125. § 55. If more than 40,000 or over more than 40,000, the sum of 150. These were the sections relating to TRADERS NOT RESIDENT OF MARYLAND. § 37. No person, not being a permanent resident in this State, shall sell, offer for sale, or expose for sale, within the limits of the city of Baltimore, any goods, wares, or merchandise whatever, other than agricultural products and articles manufactured in the State of Maryland, within the limits of the said city, either by card, sample, or other specimen, or by written or printed trade-list or catalogue, whether such person be the maker or manufacturer thereof or not, without first obtaining a license so to do. § 38. Such license shall be issued to the person or copartnership applying for the same on the payment of $300, and shall run one year from date. § 39. No person, whether a resident or not of the city of Baltimore, and licensed to sell therein, shall suffer or permit any person not a permanent resident of the State of Maryland, or the agent or representative of any person or persons not residents of the State of Maryland, and not in his regular employ or service, to sell any goods, wares, or merchandise by sample, card, or other specimen, or by written or printed tradelist under his name or the name of his firm or partnership, or at the store, counting-room, or warehouse in his occupation or used as his place of business. § 40. Any person offending against either of the three last preceding sections, shall be liable to indictment, and upon conviction shall be fined not less than $400 for each offence. The reader will thus observe that the highest price which any trader resident within the State was ever called on to pay, in order to trade there, was $150, while every trader not so resident, who sought to trade within the State, was charged twice that sum. In this state of constitutional and of statutory law, one Ward, a citizen of the United States and of New Jersey, resident in Mew Jersey, sold by sample, horse harness, within the limits of Baltimore, without any license and contrary to the above-quoted statute of Maryland. He was accordingly, for the purpose of having the validity of the Maryland act judicially tested, indicted in the Criminal Court of Baltimore, the facts being agreed on. The indictment contained two counts, one for selling and the other for offering to sell by sample goods (to wit, horse harness) other than agricultural products and articles manufactured in Maryland. The defence was that the statute of Maryland was unconstitutional and void, the two clauses of the Constitution already quoted being relied on as those to which the Maryland statute was repugnant. The Criminal Court adjudged the statute valid and fined Ward $400. This judgment being affirmed in the Court of Appeals of Maryland the case was now here for review.

The opinion of the court was delivered by: Mr. Justice Clifford delivered the opinion of the court.

Mr. W. M. Evarts, for the plaintiff in error:

I. The regulation attempted by State authority is flatly repugnant to the clause of the Constitution which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States.' It is a direct discrimination between citizens of Maryland and citizens of other States in respect of an ordinary and extensive branch of mercantile dealing.

1. It makes that which is lawful within the State of Maryland for all persons resident therein, unlawful for citizens of other States, unless upon onerous conditions, not imposed upon its own citizens, or persons resident within it.

2. It punishes the refusal to submit to their conditions by indictment and fine.

3. It makes the discrimination rest upon the very fact which alone determines, in the case of citizens of the United States, whether a person is or is not a citizen of one State or another, to wit, permanent residence in a State.

II. The provisions of the act, in their application to the case of the defendant below, are 'a regulation of commerce between the States,' and of that nature to be on their face repugnant to that power, as intrusted to Congress by the Constitution.

It is indeed the doctrine of this court that this clause of the Constitution does not exclude all occupation by State legislation of the ground covered by it, in the absence of legislation by Congress within the premises of the State legislation.*fn2 But such a regulation by a State as is here attempted,–a regulation by a State of the manner in which trading within it may be carried on by citizens of other States, and in respect of merchandise to be introduced from other States,–touches the main affirmative power of regulation of ordinary active commerce between the States. The deposit of the power with the general government is inconsistent with any such authority in a State, and the absence of legislation by Congress is equivalent to a declaration that this direct and active trade in commodities between the States shall remain free from all regulation.

The recent cases in this court seem to assume that if the subject of State taxation and regulation, presented therein, had been of commerce, the legislation complained of would have been beyond the authority of the State.*fn3

Mr. I. D. Jones, Attorney-General of the State of Maryland, contra:

I. The statute does not violate that provision of the Constitution which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States.'

There is nothing in the law which prohibits or restrains non-resident merchants, manufacturers, or traders or their agents, from bringing their goods here and selling them in the same mode, and under the same license, as residents of the State. A custom, however, has grown up with manufacturers in the large manufacturing cities and States, of sending agents through other States and cities with samples, or lists of their goods, and selling by retail or wholesale large quantities of merchandise. It is thus sold free from the local taxation, which affects like goods in the hands of resident traders. Such sales by runners are of course a great detriment to the trade of resident traders, who take out licenses, pay rent, and are subjected to local taxes. The tax is, therefore, a tax upon a particular business or trade, carried on in a particular mode within the limits of the State by a particular class of persons, and not a tax upon goods or merchandise imported into the State either from foreign countries or from other States. The doctrine contended for by the plaintiff in error would give the non-resident commercial traveller, or 'runner,' superior advantages over the regular trader.

II. The law is not in conflict with any act of Congress regulating 'commerce among the several States.' The power has been considered and treated as a concurrent power, to a certain extent, ever since the adoption of the Constitution of the United States; and like the concurrent powers of taxation and bankruptcy, the States may exercise it in cases where Congress has left it 'in its dormant state.'*fn4 There being no regulation of Congress upon the same subject, the statute is not void as a regulation of commerce.

III. The law is, in short, a part of the license system of Maryland. Licenses are a mode of taxation upon certain business and occupations carried on within the State, whereby it raises revenue to support its government; it is a law to regulate contracts in a particular mode of traffic within its own territory, passed in the exercise of the State's right to regulate all persons, property, occupations, contracts, and transactions, within its own limits, in matters not prohibited to the State by the Constitution of the United States, or not subject to regulation by Congress, or ...


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