27 Mo. 344 | Mo. | 1858
delivered the opinion of the court.
The defendants were indicted for selling goods as merchants without license. The indictment contains but one count, which charges that the defendants, as partners, on the first day of July, 1856, and on divers other days and times, between that day and the day of finding the indictment, unlawfully did deal, as merchants, without license, at a place occupied by them in St. Louis, in selling hardware not the growth, produce or manufacture of this state, and not un-manufactured articles, the growth or produce of other states.
The defendants demurred to the indictment, but the demurrer was overruled, and they then pleaded not guilty, and under a provision of the revised statutes of 1855, p. 1189, the issue was tried by the court, with the consent of the attorney for the State and the defendants. The facts were agreed, and are as follows: “ It is admitted by the defendants that during the time covered by this indictment, the defendants, as co-partners, were engaged in doing business as merchants, and that they did deal in the selling of goods, wares and merchandise at a store occupied by them for that purpose, at the county aforesaid, without a license therefor; and that, in their dealing as merchants aforesaid, they did sell goods, which were of the growth, produce and manufacture of foreign countries, imported by defendants into the United States, and on which they paid the duties to the United States, and which were sold by them in the original unbroken packages as imported; and that they sold no other goods than as above specified, and that the goods were as described in the indictment.” • There was no other evidence.
The defendants asked the court to declare the law to be “ that if the defendants neither received for sale nor sold at their store in St. Louis any other goods except such as were imported by them into the United States from foreign countries, and on which they had paid the duties to the United States on their importation, and which were sold by them in the original unbroken packages, as imported, then the defen
The defendants were found guilty, and have brought the case into this court by appeal.
All the legislation of the state that affects this case is contained in the act to tax and license merchants, approved December 11,1855. The first section defines a merchant to be any person or co-partnership of persons who shall deal in the selling of goods, wares and merchandise, at any store, stand or place occupied for that purpose. The next section prohibits any person from dealing as a merchant without a license first had and obtained according to the requirements of the act, under the penalty of forfeiting, for every offence, not less than fifty nor more than five hundred dollars, to be recovered by indictment. By the third section merchants are required to pay an ad valorem, tax, equal to that which is levied on real estate, upon all goods, wares and merchandise purchased by them, except such as may be the growth, produce or manufacture of this state, and except such un-manufactured articles as may be the growth or produce of other states. The fourth section prescribes that “ any person or co-partnership of persons applying for a license to
It is admitted that during the time covered by the indictment the defendants only sold, in the original unbroken packages as imported, such, goods as were of the growth, produce and manufacture of foreign countries, imported by them, and on which they paid the duties to the United States; and the question now to be decided is, whether the legislature of this state can consistently with the constitution of the United States require the importer of foreign merchandise to take out a license before he can lawfully sell the same in the condition in which it was imported.
This identical question was before the supreme court of the United States, in the case of Brown v. State of Maryland, 12 Wheat. 419, and it was decided by that court that the exercise of such a power by a state was repugnant to that clause of the constitution which declares that “ no state shall lay any impost or duties on imports or exports,” and also to the clause which empowers “ Congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In that case Brown was indicted for violating an act of the legislature of Maryland, which
This case came under review in the license cases, (5 How. 504,) and the passenger cases, (7 How. 283,) and instead of being overruled, as has been asserted, it was expressly approved and affirmed by a majority of the judges, so far at least as it maintains the exclusive power of Congress over foreign commerce. Chief Justice Taney, in the license cases, observes, that he argued the case of Brown v. Maryland for the state, and, though he thought at the time that the court restricted the powers.of the state more than a sound construction of the federal constitution warranted, that further and more mature reflection had convinced him that the rule laid down by the court was a safe and just one, and perhaps the best that could have been adopted for preserving the lights of the United States on the one hand, and of the state on the other, and preventing collision between them. And he then remarks that “ goods imported, while they remain in the hands of the importer in the form and shape in which they were brought into the country, can, in no just sense, be regarded as a part of that mass of property in the state usually taxed for the support of the state government; * • * * and a tax upon them while- in this condition for state purposes, whether by direct assessment or indirectly by requiring a license to sell, would be hardly more justifiable in principle than a transit duty upon the merchandise when passing through a state.” ,
This case falls directly within the principle established in Brown v. Maryland, and as long as that case stands in the court that decided it, it is our duty to respect it. State legislation must yield to the commanding authority of the constitution of the United States, and whilst in construing our own laws and constitution we recognize no higher authority than this court, we feel bound in all judicial questions affected by the laws of Congress and the federal constitution to follow the decisions of the supreme court of the United States,
It is not necessary, however, for the decision of this case to declare the statute unconstitutional on which the indictment was framed, for it may stand and be executed in perfect harmony with this opinion. The act does not in terms declare that the importer of foreign merchandise shall take out and pay for a license to secure the privilege of selling, when he proposes to sell only in the original package ; neither does it require the merchant to include in his statement goods expressly exempted by the constitution of the United States from the burdens imposed by state laws on, other goods ; and it will not be presumed that the legislature sought to do what it had no power to do, or that it attempted to abridge or invade private rights secured by the paramount law of the land. But if the importer breaks up the original packages for sale or for use, or changes the form in which they were imported, or they pass into second hands, the goods will lose their distinctive character as imports and become subject to the taxing power of the state, and in such cases nothing that has been said will protect an article so acted upon by the importer.
This view of the subject was taken by this court at an early day, in the case of the The State v. Tracy & Wahrendorf, 3 Mo. 3. The defendants in that case were indicted for violating the act of March 1st, 1825, which required that all merchants should pay a tax on their whole stock in trade except such goods as were the growth, produce or manufacture of this state; and provided that before any person should receive a license to vend merchandise, he should deliver to the collector of the proper county a complete, statement in writing of all the goods, wares and merchandise, 'except as
In our opinion the demurrer was properly overruled; but the court ought to have given the instruction prayed by the defendants, and refused the instruction that was given. All the facts being admitted, the case stood as upon a’special verdict, on which the defendants were entitled to a judgment in their favor.
the judgment of the criminal court will be reversed, and the defendants discharged from their recognizance.