92 Va. 809 | Va. | 1896
delivered the opinion of the court.
At the April term, 1895, of the Hustings Court for the city of Richmond, the attorney for the Commonwealth proceeded against John Myer, by information, setting forth that he was not a manufacturer, nor a manufacturer assessed with the tax imposed upon his capital employed, under Schedule “ C” of an act to provide for the assessment of taxes on persons, * * * and on licenses to transact business, *' * 'x' and for the support of the government, and who has no regular place of business in this city, open at all times in regular business hours; but that on the 4th day of April, 1895, within the jurisdiction of the Hustings Court of the said city, he was engaged in going from -house to house, and street to street, with a wagon and horse, offering for sale an article known as- “ Soapine,” and did sell, and offer for sale, the said merchandise, in the said city, to one Mrs, James Woolridge, without first having obtained the license required by law. To this information John Myer appeared and filed a general demurrer, which was overruled; and thereupon he pleaded “not guilty,” and a jury was empanelled for his trial, which resulted in his acquittal. Upon the petition of the Commonwealth, through its Attorney-General, a writ of error was awarded by this court.
The record contains several bills of exceptions, in the first of which the evidence is set out, from which it appears that every fact set out in the information was sufficiently proven.
It also appears, from the evidence of the accused, who was examined as a witness on his own behalf, that he is an employee of the Kendall Manufacturing Company,-whose domi
Thereupon the Commonwealth asked the court to instruct the jury as follows :
“ If the jury believe from the evidence that John Myer did, as charged in the information, go from street to street in the city of Richmond, with a wagon and horse, and that in' the wagon said Myer carried merchandise called ‘ Soapine,’ and further believe that said Myer, without the license required by law, sold, or offered for sale, said merchandise, viz., ‘ Soapine,’ then they must find him guilty, and assess him with a fine, so that the same shall be not less than one hundred ($100) nor more than five ($500) hundred dollars for each offence.”
Which was refused. And Myer, the defendant, asked the following instructions, which were given :
“ The court further instructs the jury that if they believe from the evidence that the defendant, at the time he offered to sell and sold the commodity in the information mentioned, known as ‘ Soapine,’was in the employ of the Kendall Manufacturing Company, of the State of Rhode Island; that such goods were the product and manufacture of the Kendall Manufacturing Company, and that the alleged offence, mentioned in the information, consisted of said non-resident corporation, through its employee, the defendant, also a nonresident, offering its said commodity, duly manufactured by it, for sale in the city of Richmond, Va., and that such article was not .injurious in its character, either to public health or morals, but was useful as a cleansing commodity, to be used for general household purposes, and, as such, had been long in general use, then they must find the defendant not guilty, although they may believe he had taken out no license to sell such commodity.”
To the refusal of the court to give the instruction asked by it, and to the giving of the instructions asked by the defendant, the Commonwealth excepted.
The statute under which this prosecution took place is to be found in sections 32 and 33 of the Acts of Assembly 1889-90, page 217. Section 32 provides:
*813 .“That any person who shall carry from place to place any goods, wares, or merchandise, and offer to sell or barter the same, or actually sell or barter the same, in transitu or otherwise, shall be deemed to be a peddler, and any person licensed as a peddler may sell any personal property a merchant may sell, or he may exchange the same for other articles. * * s Any peddler who shall peddle for sale, or sell or barter, without a license, shall pay a fine of not less than one hundred nor more than five hundred dollars for each offence. * * * This section shall be construed to include persons engaged in peddling lightning-rods: provided, however, that any manufacturer who has been assessed and paid upon the capital employed by him, under Schedule ‘ 0 ’ of this act, shall not be required to take out the license, named in this section for the privilege of selling articles actually manufactured by him: provided, also, that all persons who do not keep a regular place of business (whether it be in a house, or vacant lot, or elsewhere), open at all times in regular business hours, and at the same place, who shall offer for sale goods, wares, and merchandise, shall be'deemed peddlers under the provisions of this act.”
Section 33 prescribes the license tax to be paid for the privilege of peddling, or bartering, in any county or corporation, with a proviso annexed to it, which wre do not deem it necessary to discuss.
The question presented in the record is as to the constitutionality of section 32 of the act of 1889-90, just quoted.
On the part of the defendant in error, it is contended that this statute is repugnant to Article IY., section 2, clause 1, and to Article I., section 8, clause 3, of the Constitution of the United States, and is therefore null and void.
Upon the part of the Commonwealth, it is contended that it was merely an ordinary tax upon the business or occupation of a peddler, equal and uniform in its operation upon all engaged in that business, and is not an attempt to regulate commerce between the States, and can have no such tendency.
It is not our purpose to attempt any general discussion of the very numerous decisions of the Supreme Court of the United States upon this and kindred subjects. It is, indeed, happily for us, unnecessary to do so, as it has been done in a
The facts agreed were that on a certain day the Singer Manufacturing Company was a corporation of Mew Jersey, and that the defendant was, on and prior to that day, in the employment of that company, and on that day, in pursuance of that employment, and having no peddler’s license, was engaged in going from place to place in Montgomery, county, with a horse and wagon, soliciting orders for the sale of the company’s sewing machines, and having with him in the wagon one of those machines, the property of the company, and manufactured by it in Mew Jersey.
In'deciding this case, Mr. Justice Gray says: “ The statute in question is not part of a revenue law. It makes no discrimination between residents or products of Missouri and
In Howe Machine Co. v. Gage, 100 U. S. 676, the Supreme Court of the United States held that the statute of the State of Tennessee, as construed by the Supreme Court of Tennessee, made no discrimination in the tax which it imposed on account of the place of growth, or produce of material, or of manufacture, but that it applied alike to the sale of sewing machines manufactured in the State of Tennessee and out of it; and that, inasmuch as all sewing machines were placed upon the same footing with ^respect to the tax complained of, its action was not unusual or unreasonable, and the State had an unquestionable right to impose the burden.
In Woodruff v. Parham, 8 Wall. 123, it was held by Mr. Justice Miller that “ a simple tax on sales of merchandise, imposed alike on all sales made in Mobile, whether the sales be made by a citizen of Alabama or of another State, and whether the goods sold are the produce of that State or some other, was valid and constitutional, there being no attempt to discriminate injuriously against the products of other States, or the rights of other citizens; it was therefore not an attempt to fetter commerce among the States, or to deprive the citizens of other States of any privilege or immunity possessed by citizens of Alabama But,” said the court, “ a law having such operation would be an infringement of the provisions of the Constitution which relate to those subjects, and therefore void.”
In Ward v. Maryland, 12 Wall. 118, a statute of Maryland
In Webber v. Virginia, 103 U. S. 344, the statute there called in question was held to be unconstitutional, because it made “ a clear discrimination in favor of home manufacturers and against the manufacturers of other States.”
Enough has been said, and sufficient authorities have been cited, to show the line of distinction which runs between those statutes which have been held constitutional and those which have been declared void for repugnancy to the Constitution. The right of the State to impose a license tax upon peddlers, where it operates uniformly upon all citizens, and does not discriminate in favor of citizens of Virginia as against citizens of other States, or where the tax imposed is in the exercise of the police power, and is not a regulation of commerce under cover of that power, although incidentally it may have that effect, has been uniformly maintained ; but where any injurious discrimination is discovered in favor of the resident as against the non-resident, or with respect to the sales of articles manufactured in.this State over similar articles manufactured abroad, the State laws are declared to be void, .as repugnant to the Constitution of the United States.
In this case, the defendant in error was engaged in selling an article owned and manufactured by the Kendall Manufacturing Company, of Bhode Island. It is not pretended that it was hurtful or injurious in any way, and the same article, if manufactured within the limits of the State of Vir
It follows that the judgment of the Hustings Court of the city of Richmond must be affirmed.
Affirmed.