Beall was indicted for selling, by retail, fourth of a pound of tea, without having a license or permit to vend foreign merchandise, which it is averred the tea was. He demurred to the indictment, and the demurrer being overruled, judgment was rendеred against him. He complains of this judgment as erroneous, and contends that the act of the legislature on whiсh the prosecution is founded, is repugnant to the constitution of the United States, and therefore void.
The section of the act to which exсeption is taken, reads as follows: “Every person who shall in proper person, or by an agent, vend any mеrchandise which may not be the product of the United States, without having a license or permit so to do as is or may be dеsignated by law, shall be fined, in any sum not exceeding 100 dollars.” Rev. C. 1831, p. 191
The question now before us, when first made in the highest tribunal in the country, was investigated with labour and patience, and its decision sustained by a lucid, elaborate, and convincing argument. It hás also been decided by the Appellate Court of a sister state. When we say decided, we do not wish to be understood as expressing the opinion that the particular point before us has been decided, but that the question decided in those cases was decisive of the principlе involved in this. The question is not therefore clothed with its original interest, and our examination of it will be limited,
That part of the constitution of the United States, (art. 1, sec. 10;) to which the act of the legislature is supposed to be repugnant, is as follows: “No state shall, without the consеnt of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.” This provision of the constitution, in the decision of the Supreme Court оf the United States to which we referred, (Brown v. The State of Maryland,
Between the act of Maryland thus pronounced void, and thе act of this state, the validity of which is questioned, there seems to be an immeasurable difference. The act of the former state assumed the right of levying a tax on imports, witout bringing that tax within the constitutional exception; whеreas that of this state is only the exercise of a rightful and undenied power of taxing its citizens, and the property within it, without obstruction to the powers of congress. Without remarking further upon this act, the broad ground is taken, and' it is beliеved can be successfully maintained, that this state, situated as it is, cannot pass an act that would be repugnant to the provision of the constitution of the United States which we have quoted. No port of entry for the introduction of fоreign imports has been established by congress within the state. The state itself has not undertaken to establish one. It, therefore, without having a port of entry, could not lay a tax on imports; for such a tax must meet its subject, as laid down by Ch. Justice Marshall in the case of Brown, before its incorporation with the great mass of property in the state,— for then its distinctive character as an import is lost. It becomes, from the moment of such incorporation, the legitimate subject оf taxation. An act of this state can only affect such property, and opposes no obstruction to any power granted to congress. - •
It is believed that there is no other provision of the constittion of the United States, to which this act, after a moment’s reflection, can be supposed to be repugnant; except it be to that which gives to congress the power to regulate commerce between the states. Our act does not interfere with the exercise of that power. It contemplates no restriction upon such commerce; it imposes no burthens upon it; nor can it be tortured into a transit duty. Thе power it asserts is inseparable from sovereignty essential to its existence, and one which all expоunders of the constitution admit to have been reserved.
The judgment is affirmed with costs.
Notes
Accord. Rev. Stat. 1838, p. 217.