In re Wilson 8 Mackey 341, 19 D.C. 341

Mr. Justice Hagner

delivered the opinion of the Court;

It is insisted first upon the part of the petitioner that he *348is not amenable to the penalty prescribed by the Act of the Legislative Assembly of this District, because he cannot properly be considered a peddler within the correct meaning of the term. We have been referred to several definitions as given in dictionaries of authority to support the contention that the word necessarily signifies an itinerant dealer in a variety of petty wares and articles, which he buys and sells again to make a profit for himself. And it is urged that as Wilson derived no profit by way of percentage or otherwise from the sale of the individual parcels of soapine, but was paid only by a salary for. his labor, he is not within the meaning of the law. But we think the fact that the seller was paid in this form rather than by a special profit on each individual parcel as sold, cannot exempt him from the category of a peddler, if he is otherwise within the intent of the act. If such were to be the result, a merchant might send any number of persons through a city or State, disposing of goods precisely as peddlers do in every other respect, but paying them by salary or wages not regulated by the profits upon the particular sales, and thus escape the operation of the license tax charged to persons who are otherwise no more peddlers than such agents would be. In the language of the Supreme Court in Brown vs. State of Maryland, 12 Wheat., 444: “It is impossible to conceal from ourselves that this is a varying of the form without varying the substance. It is treating a prohibition which is general as if it were confined to a particular mode of doing the forbidden tiling.” Nor does the fact that the petitioner was selling the goods of another, which he himself had never purchased for sale, exempt him from the operation of the act. These points are expressly decided in the case of Commonwealth of Pennsylvania vs. Gardner, 133 Penn., 285, to which we shall hereafter more particularly refer. In the act before us, the Legislative Assembly distinctly described the class of persons they intended to include in the designation of “ peddlers,” and *349if this person was ottering for sale, from house to house, the-parcels of soapiue, and delivering them at the time of sale,, lie came within that description.

We have no doubt the Legislative Assembly had the-power to pass such license acts. Its general power to do solías been effectively recognized by Congress in laws amending or modifying them from time to time, and particular parts of them have been repeatedly sustained by our courts. Cooper’s Case, MacArthnr & Mackey, 250; District vs. Oyster, 4 Mackey, 285; District vs. Waggaman, Id., 328. In another case, this court held a particular provision of the license act void. Hennick vs. Stoutenburgh, 5. Mackey, 490. But the provision theii under consideration, exacted a license tax from commercial agents, who by Clause 3 of Sec. 24 of Chap. 69 of the License Act of August 1871, as amended by Chap. 49, of the Act of 1872, were taxed as follows:

“ Commercial agents shall pay two hundred dollars annually. Every person whose business it is, as agents, to offer for sale goods, wares, or merchandise by samples, catalogue or otherwise, shall be regarded as a commercial agent.” Of course this only applied to persons who “offer for sale,” whether the offer was made “ by samples or by catalogues or otherwise,” and had no reference to those who sell and deliver the goods at the time of the sale. Such persons are known as drummers who solicit orders, by exhibiting samples, or by a catalogue, or in any oilier way, and not those who actually sell and deliver the goods at the time, as peddlers do and as Wilson was doing. The general power of the Legislative Assembly to pass suc-h acts was also recognized by the Supreme Court in Welsh vs. Cooke, 7 Otto, 542. Indeed, it seems impossible to question it, unless we are prepared to deny to the District the ordinary powers of a municipality, absolutely indispensiblo in a city circumstanced like-this. That the Legislative Assembly may in some other-instances have exceeded its jmst authority in passing particular enactments under- the general-, powier- may perhaps; *350be true, but we are speaking of its general power to enact acts requiring traders and others to take out licenses, and this we have never heard seriously questioned.

A competent legislative authority has the right to place offenders in a recognized category and to punish persons not previously so classed. Thus Congress denounced persons engaged in the slave trade as guilty of piracy, although that offense had never before been embraced within the definition of piracy, and slavetraders thereafter became punishable as pirates, and prosecutions have repeatedly been had under that law.

Congress in Sec. 3244, Subsec. 11, R. S., 625, describes “ peddlers of tobacco” as follows:

“Any person who sells or offers to sell manufactured tobacco, snuff' or cigars, travelling from place to place, in the town or in the country, shall be regarded as a peddler of tobacco.” If this statute had simply imposed a license tax upon the occupation of a “peddler in tobacco,” it would be proper to have recourse to the signification of the word at the time the law was passed, to ascertain whether the person charged was comprehended within the general epithet. But when the legislature saw fit to declare that a person who commits certain enumerated acts shall be-considered a peddler and treated as such, it is too late to resort to glossaries to ascertain whether the legislature observed the dictionary definition of the occupation, according to antecedent usage or strict etymological rules. The legislative definition outweighs the dictum of the lexicographers-

We might refer to numerous cases where the courts have held that the word “peddler” in a statute comprehended persons whose acts were less within the strict limits insisted on by the petitioner’s counsel, than they- are as used in the ordinance before us. Thus in State vs. Wilson, 2 Lea, 28, venders of lightning rods were held to be included in an act requiring a peddler of merchandise to obtain a license. In Chicago vs. Bate, 100 Ill., 61, a city ordinance prohibited *351persons from selling milk from wagons without license. The only authority in the charter of the city relied on for the enactment of the ordinance, was a provision that the municipality might tax, regulate, suppress and prohibit hawkers and peddlers. But the court held the word peddler was used in the charter in an unrestricted sense, and authorized the city to exact a license from persons who sold milk, and that it made no difference that the accused had regular customers whom he supplied daily.

In Borough of Warren vs. Geer, 117 Pa., 207, the court hold that a provision in the charter authorizing the borough to require a license for peddling market produce and other articles, included sales of books ; and that a book canvasser was properly convicted under a borough ordinance for acting -without a peddler’s license; and that there was nothing unreasonable in this requirement.

Although there are many cases where the courts have held a general expression in a statute included persons further removed from the usual definition of such expression than the petitioner was from the supposed dictionary signification of the word “ peddler,” we have found no case where the courts have denied to the legislature the right to define for itself the characteristics that thereafter should constitute an offense, not-previously within such definition.

We must regard the petitioner as a peddler within the meaning of the Act of the Legislative Assembly; and that he is punishable as such for selling without a license unless lie is exempt upon the other ground of defense urged in his behalf.

That defense is that the Act of the Legislative Assembly is void, as being repugnant to the third clause of the Eighth Section of the First Article of the Constitution, which declares that “ Congress shall have power to regulate commerce with foreign nations, among the several States, and with Indian tribes.” This involves the consideration of a very important and interesting question which has repeatedly *352challenged the attention of the Supreme Court. In one of the first of these great cases, Brown vs. State of Maryland, 12 Wheat., 436, the Supreme Court decided that a State statute requiring an importer of foreign commodities to take out a State license, was repugnant to the constitutional provision referred to, as well as to another provision of the Constitution ; and that the conviction of an importer for having sold a- package of foreign dry goods without such license was illegal.

In defining the line of demarcation between the exclusive power of the Government to tax foreign goods imported into a State, and the power of the State to levy such tax after they have reached the State’s jurisdiction, Chief Justice Marshall in that case laid down a rule which is thus stated by the Supreme Court in the subsequent caso of Welton vs. Missouri, 91 U. S., 281:

"There is a difficulty, it is true, in all cases of this character, in drawing the line precisely where the commercial power of Congress ends and the power of the State begins. A similar difficulty was felt by this court in Brown vs. Maryland, in drawing the line of distinction between the restriction upon the power of the States to lay a duty upon imports, and their acknowledged power to tax persons and property; but the court observed that the two, though quite distinguishable when they do not approach each other, may yet like the intervening colors between white and black, approach so nearty as to perplex the understanding, as colors perplex the vision in marking the distinction between them ; but that, as the distinction exists it must be marked as the cases arise; and the court, after observing that it might be premature to state any rule as being universal in its application, held, that when the importer had so acted upon the thing imported that it had become incorporated and mixed up in the mass of property in the country, it had lost its distinctive character as an import, and became subject to the taxing power of the State;' but that while *353remaining the property of the importer in his warehouses in the original form and package in which it was imported, the tax upon it was plainly a duty on imports prohibited by the Constitution.”

This definition has been adopted substantially, if not in exact words, in each of the important cases on the subject since that time.

Robbins vs. Shelby Trading District, 129 U. S., 490; Corse vs. Meigs, 130 U. S., 502; Brown vs. Houston, 114 U. S., 632; Lelap vs. Mobile Telegraph, 127 U. S., 646; Arthur vs. Texas, 128 U. S., 130 ; Stoutenburgh vs. Hennick, commercial agent, 129 U. S., 142; Liesy vs. Hardin, 135 U. S., 100.

The question therefore in the present case is, whether the boxes of soapine which Wilson is said to have purchased from the Washington merchant aud subsequently sold from door to door by retail, can be considered as continuing the property of the person who imported them into the District of Columbia, at the time of Wilson’s purchase, remaining in the original form and package in which they were imported ; or whether the person who so imported them into the District, before Wilson’s purchase, “had so acted upon the thing imported that it had become incorporated and mixed up with the mass of property in the county [District], as to have lost its distinctive character as an import?” If the facts support the first supposition, the tax was illegal; if they support the latter “ the goods had become subject to the taxing power of the State [District].”

Upon the statement presented by the petitioner, to -which the counsel for the District have assented for the purposes of this argument, it does not clearly appear whether we are to understand the particular boxes so sold as having been imported by the petitioner Wilson or by the Washington merchant.

The statement in one place says “ the box sold at retail from door to door by the agent never passes into the hands *354of the dealers, but is sent to the agent direct from the manufactory, and is sold by him for the Kendall Manufacturing-Company, and the proceeds paid to them.” This would seem to indicate that the petitioner is to be considered as the importer of those boxes. On the other hand, the statement avers that the practice of the petitioner, as agent of the companj'-, is “ to sell a certain number of boxes, at wholesale prices, to the Washington dealers — therefrom to retain one box from each wholesale purchaser, paying him the retail prices therefor by discount on his bill; the purchaser being charged with six boxes and credited with one in his bill, and then to sell this box at retail from door to door for the purpose of advertising the article, stimulating its sales, and thereby obtaining customers for the grocers and dealers,” which would certainly imply that the dealer must import the particular box in his original package before it can be. retained from the six boxes that had been sold to him and charged on his bill at the wholesale prices, and afterwards credited to him at the retail prices to be sold on the streets to obtain customers for the dealers.

If the former supposition is to be taken as correct, of course the agent must receive his assortment of individual boxes in a package together, as it is ridiculous-to assume he would receive each box separately, as a specific shipment to him. On the other hand, if the sixth box reaches the city in the package received by the merchant, that package must be opened before the agent can obtain the sixth box when he buys it at retail price from the merchant.

Hence, in either case, before the agent can take the individual box on the street, the package in which it was imported to the District must have been broken; the article must have “lost its distinctive character as an import,” and become incorporated and mixed up in the mass of property in the District. The singular, circuitous and rather mysterious arrangement by which the merchant is charged with a box which it is said he never bought; is allowed *355<a retail price for what it is said he never sold; and is credited with the retail price of what never belonged to him, bi^ a person who never sold it to him, cannot change the character of the transaction. Repeating the words of the Chief Justice before quoted from Brown vs. Maryland, It is impossible to conceal from ourselves that this is a varying of the form without a varying of the substance.”

The Supreme Court has contented itself in the different instances where the point arose, with deciding whether under the facts in the particular case, the goods upon which it was sought to impose a tax directly or by the exaction of a license, had at the time been incorporated and mixed up in the mass of the property of the State, and become subject to its taxing power. In Brown vs. Houston, Collector, 114 U. S., 22, it was held that coal mined in Pennsylvania and sent in flat boats to New Orleans, to be sold in open market there on account of the owners in Pennsylvania, when it liad reached its destination and come to its place of rest for final disposition or use, had become a commodity in the market, a part of the general mass of property of the State, and was subject to taxation under its general laws; although after its arrival it was to be - sold from the flat boat, without being landed, and for the purpose of being taken out of the country on a vessel bound to a foreign port. If the property described in that case, under the circumstances, had become so incorporated with the mass of the property in the State'as to be the subject of State taxation, we cannot see why the individual boxes of soapine in the hands of Wilson were not in the same predicament.

We have carefully examined all the decisions of the Supreme Court on this subject, and have found nothing in either of them to interfere with these conclusions. Robbins vs. Shelby Taxing District, 120 U. S., 490; Corson vs. State of Maryland, Id., 502; Asher vs. Texas, 128 U. S., 130; Hennick vs. District of Columbia, 129 U. S., 141, were all *356cases where the person charged was selling by sample, goods not yet imported into the State or District, and the courts very reasonably declared that the goods sought to be taxed by means of a license, could no more be subjected to a tax by such a sale than they could be if the Sale had been conducted by letter through the post office.

In Welton vs. Missouri, 91 U. S., 282, from which we have already quoted Justice Field’s statement of the definition in Brown vs. Maryland, the court held'that a State law providing that “whoever shall deal in the selling of patent or other medicines, goods, wares, or merchandise, except books, charts and stationery, which are not the growth, produce, or manufacture of the State, by going from place to place to sell the same, is declared to be a peddler,” and exacting a a license tax from such dealers, while making no such requirement where such persons sold only such commodities as were produced within the State, was in conflict with the commercial clause of the Constitution, and void because of this discrimination against citizens of other States. But the court said nothing to imply that the tax would have been illegal if the statute had applied (as ours does) to all citizens alike. Nor does it intimate that the accused could not be held as a peddler, though the definition given in the statute is as open to etymological criticism as the act of the District legislature. A.similar decision was made in Ward vs. Maryland, 12 Wall., 418.

The point of these decisions is emphasized by the opinion in Machine Co. vs. Gage, 100 U. S., 676. The Howe Machine Co., which manufactured its machines in Connecticut, had an agent in Nashville, Tenn., who went to Lawrence County to sell machines, and a tax was there demanded of him for a peddler’s license under a State law which required all peddlers of sewing machines to pay a tax. He denied the validity of the act, but paid the tax to the county clerk, and this suit was brought to recover back the amount so paid. The case was discussed by the court with full exam*357ination of authorities; and the opinion concludes as follows: “In all cases of this class, to which the one before us belongs, it is a test question whether there is any discrimination in favor of the State, or of the citizens of the State which enaeted the law. Wherever there is such discrimination, it is fatal. In the case before us the statute in question, as construed by the Supreme Court of the State, makes no such discrimination. It applies alike to sewing machines manufactured in the State and out of it. The exaction is not an unusual or unreasonable one. The State, putting all such machines upon the same footing with, respect to'the tax complained of, had an unquestionable right to impose the burden.”

No suggestion was there made that the agent who sold the sewing machines for the foreign ’ manufacturer was not a peddler; and the Supreme Court held he must obtain a peddler’s license.

Shortly afterwards the case of Webber vs. Virginia, 103 U. S., 350, was decided, in which a law of that State was held invalid because of the discrimination against nonresidents which appeared in Welch vs. Missouri, 91 U. S., and was absent in Brown vs. Gage, 100 U. S.

The petitioner’s counsel referred to a decision said to have been rendered in the Hustings Court in Richmond; and also to a case in the Court of Common Pleas, in Delaware County, Pennsylvania, in which they contended the law as they present it was settled on this identical subject.

We have not been able to find the former decision; but we have examined the latter case with care. Larkin and others were arrested in the city of Chester for selling soapine without a license, and the Court of Common Pleas held the ordinance void and inapplicable, on two grounds stated in the opinion:

1. Because it was doubtful whether the charter of Chester gave to the city the power to‘pass‘an ordinance to license peddling.

*358But the District of Columbia, as we have seen, undoubtedly possesses that power.

2. Because the sellers of the soapine were not peddlers within the meaning of the city ordinance.

But that ordinance did not specially describe -the form of sale which should thereafter constitute “peddling.” The act in force in this District does explicitly contain that description.

That case further differs from the case before us, because no such facts as to the sale of the boxes to the merchant, and the repurchase of them by the agent, seem to have existed there; whereas those important circumstances appear in the agreement filed in the present case.

These differences are sufficient to discriminate that case from the present; but at the best it is only the decision of an inferior court, and we think it erroneous; and whatever force it might be supposed to have against the tax in the present case is destroyed by a subsequent decision of the Court of Appeals of that State in March, 1890, in Commonwealth vs. Gardner, 133 Pa., 285, in which all the points raised before us are in turn considered.

The defendants were indicted for hawking and peddling goods within the County of Schuylkill, contrary to the provisions of the Act of April, 1846.

. It appears from the special verdict found by the jury and from the opinion of the court, that the defendants who were in the county temporarily for the purpose of making such sales, sold from door to door within said county parcels-or packages of soapine or washing powder, being a substitute for soap, etc. That they sold the goods as agents of a manufacturing company whose office, works, members, and officers are in Providence, Rhode Island ; that the goods were made there and were sold by defendants on account of the company; that the defendants had no interest in the goods, nor in their proceeds, but were paid a salary for their services by the company. The statute for*359bids the sale of foreign, or domestic goods, wares,, or merchandise within the county by any person as a hawker or peddler.

The county court entered a verdict of guilty upon the special verdict; and an appeal from this ruling was taken to the Court of Appeals, where the case was elaborately argued by counsel and discussed by the court.

The court decided that the defendants were “ peddlers” within the meaning of the law; “that it was of no consequence if they did not own the articles sold, but acted as the agents of others;” that the prohibition in the law against all peddling in the county was a valid exercise of the police power of the State, and was not in violation of the constitutional right of the citizen secured by the Constitution of the State; that the sale from house to house by agents of goods manufactured in Rhode Island by a company whose members are non-residents of Pennsylvania is not interstate commerce; and that the law forbidding all peddling within the county does not invade the exclusive right of Congress to regulate interstate commerce.

In speaking upon the last point the court says: “The citizen of another State may come into Pennsylvania when he will and where he will, stay as long as he chooses, open as many places for the sale of his goods as he may see fit, and enjoy the same measure of freedom in regard to the conduct of his business as a native citizen. But when he comes within the State, permanently or temporarily, he is under the protection of its laws, and the correlative duty of obedience rests on him. His rights are equal to, but not above, those of the citizen. He has no more right to sell intoxicating drink, without a license, than a citizen; no better right to sell cigarettes to children, or oleomargarine to customers, in violation of law, than a citizen. He has no better right to take a pack on his back, or a horse and cart, and engage in peddling, than a citizen. To hold the contrary would be subversive of law and order, and *360would render the possession of the police power useless to the State.”

The facts of the case at bar are less favorable to the defendant than those in 133 Pa., inasmuch as the stratagem of the alleged sale by the agent of the one box of soapine to the merchant, and its alleged repurchase did not appear in that case. But if the present case were no worse than that, the decision cited would be a powerful authority' in support of the view we have taken.

The resident merchants here are obliged to pay taxes upon their stock in trade and shops, besides paying a license tax. It is hardly fair that persons without any stake in the community, and who contribute nothing in any other form towards the expenses of the Government here, should be permitted to carry on their traffic without payment of a license tax; which, in the language of the court in Machine Co. vs. Gage, 100 U. S., is “an exaction not unusual or unreasonable.”

The judgment of the Police Court against the treasurer having been correct, the application for a habeas corpus is overruled, and the petitioner remanded into custody.

Mr. Justice Bradley

dissenting:

Byr the record it appears that the relator lias been fined the sum .of $55 by the Police Court of the District of Columbia, and that in default of paymeht he lias been committed to the custody of the Iutendent .of the Washington Asylum, having been- tried and convicted upon an information charging him with engaging in the business,of a peddler, in selling from house to house an article called soapine, without first having obtained a license therefor. By the agreed statement of facts, it appears, that the relator is a regular salaried agent of the Kendall Manufacturing-Company, a corporation under the laws of the State of Rhode Island, and-there engaged in the manufacture of soapine, a washing powder and substitute for soap ; that the soapine sold was sent to the relator by his employer, direct, *361in a box, and was the property of the manufacturer, although nominally it formed part of a number of boxes sold to some resident dealer at wholesale rates, and without being delivered to such dealer it was repurchased by the manufacturer at retail price.

The effect of this arrangement was to give the dealer an additional discount on his purchase to the extent of the difference between the wholesale and retail price of the box retained, and the sale of the soapine in the retained boxes was intended to advertise the article and stimulate its sale.

This box was opened by the agent of the manufacturer, and its contents, in small packages, sold from door to door at retail price. The manufacturer thereby made no profit on the sales. The relator had no property interest either in the soapine or in the proceeds of the sales.

The relator is charged with the violation of an act of the Legislative Assembly of the District of Columbia, of August 23, 1871, amended June 20, 1872, entitled “An Act imposing a license on trades, business and professions practiced and carried on in the District of Columbia,” the 36th section of which reads as follows: “Peddlers shall pay fifty dollars annually. Any person who may offer for sale from house to house, or from a wagon, dry goods, fancy goods, notions, toys, and similar articles, delivered at the time of the sale, shall be known as a peddler.”

In behalf of the relator it is claimed :

1. That he is not a peddler, but a salaried agent of a manufacturing company, and therefore not included in the law.

2. That if the Act requires of a non-resident manufacturer a license fee as a condition to selling and delivering its manufactures by its agent, it is void as in conflict with Art. I, Sec. 8, Cl. 3, of the Constitution of the United States-

First, let us inquire whether the relator comes within the provisions of the law under which he was charged and sentenced.

*362It needs no examination of definitions by lexicographers to reach the conclusion that the relator was not a peddler in the ordinary signification of that word. By Endicott, J., in a Massachusetts case, a peddler is defined as “ an itinerant trader who goes from place to place and from house to house, carrying for sale and exposing the goods» wares, and- merchandise which he carries. He generally deals in small, cheap articles, such as he can conveniently carry in a cart or on his person.”

In Randolph vs. Yellowstone Kit, 83 Ala., 472, it is said: “The term peddler has many definitions, more or less full. * * * Its popular definition is a small retail dealer, who, carrying his merchandise with him, travels from house to house or from place to place, exposing his goods for sale and selling them.”

According to these definitions and to the popular and accepted meaning of the term, he is a dealer or trader in small wares who has no permanent place of business, but who carries his wares with him from place to place or from house to house. He is one who buys to sell again, and whose gains are the profits realized on small sales. A man-' ufacturer who sends his agents into other communities than that of his residence to vend his product, either immediately or by sample, is not a trader or peddler, nor is the agent employed by him in such business. Commonwealth vs. Campbell, 33 Pa. St., 380.

I think that the distinction is well marked and is reasonable, and that this relator cannot be held under the act referred to, unless it is by the force and stress of the legislative definition which accompanies the provision.

This definition is, “Any person who may offer for sale from house to house or from a wagon, dry goods, fancy goods, notions, toys, and similar articles, delivered at the time of sale,” shall be considered a peddler.

The language used is broad enough to cover the case of any person, not a trader or a dealer, who may offer for sale *363from house to house a single article. But its sense must be governed and restricted by the subject to which it relates,, and by the connection in which it is used. It relates to peddlers, those who are popularly known as such, and the definition so applied and limited is relieved of the indefiniteness which otherwise attaches to it. It was intended to apply to perambulating dealers who carry about with them a limited stock of small articles, “dry goods, notions, fancy goods, toys, and similar articles,” for sale.

If this section was intended to apply to others not peddlers in the well understood popular signification of the word, why was not the limiting term omitted, and the broad descriptive definition left to stand alone as indicating the class iutended to be taxed ?

If the broad and comprehensive meaning claimed for it was intended by the Legislative Assembly (which I doubt), then I hold that it was not in its power, by its ordinance, to include persons as peddlers who do not fall within the-ordinary meaning of that term. Mays vs. Cincinnati, 1 Ohio St., 268.

The broad meaning attributed to the provision in question would include a person who, “as agent for non-resident manufacturers or wholesale dealers, offers for sale merchandise,” unless he restricted his offers for sale to one house. But this class was distinctly taxed as commercial agents,, under the Act of August 23, 1871, and required to pay a license fee of $250. By the amendment of this Act of June 20, 1872, commercial agents are required to pay $200 annually, and they are defined as “every person whose business it is, as agent, to offer for sale goods, wares, or merchandise, by sample, catalogue, or otherwise.” Acts 2 Sess.,. page 60.

Taking the original section it is apparent that it would include the ease'of the relator, but might not include one-who offered for sale by sample, or catalogue. The amendment specifically included agents who are sellers by sample- *364•or by catalogue, and all others who otherwise offer for sale. Clearly, the third section of the act was intended to and •does cover cases like, that of the relator, as “ commercial agents.” The difference between the tax of $50 required of a peddler, and $200 required of a “commercial agent,” indicates that the former applies to the small perambulating trader, while the latter applies to the agents of manufacturers and wholesale dealers.

The conclusion I have reached is that the relator is not a peddler within the purpose or intent of the Act of the Legislative Assembly of the District of Columbia, under which he was prosecuted, convicted and sentenced.

Upon the other point made by the relator, that the act is void as an attempt to regulate “commerce among the States,” a subject which under the Constitution is committed exclusively to the Congress of the United States, it is contended for the District of Columbia that the provision of the Raw in question, as construed and applied to the case of the relator, is not repugnant to the Constitution because the importer (The Kendall Mfg. Co.) had so acted upon the thing imported, that it had become incorporated and mixed up in the mass of property in the District, and that it had lost its distinctive character of an import, and become subject to the taxing power of the District of Columbia.

By the District of Columbia it is claimed that a number of boxes of soapine are sold and delivered to a consignee here, and that one of these original packages is purchased from the consignee after it had become part of the general property of the District, and is then broken and sold by .the •agent. But the agreed fact is that the box which is broken .and sold by the agent from door to door, never passes into the hands of the dealer, but is sent to the agent direct from the manufacturer. It is the property of the non-resident manufacturer when it enters the District, and it continues to be its property in the hands of its agent until it is sold and delivered to the retail purchasers.

*365By the majority of the court it is held that the original package or box broken and sold by the agent became a part of the general mass of property, lost its distinctive character-as an import, and became subject to taxation the moment the original package in the hands of the agent was broken.

In this I am not able to concur, and.I approach this constitutional feature of the subject with diffidence'and hesitation.

The principle embodied in the proposition that the contents of the box of soapine became a part of the mass of the property in this District when the original package was broken in the hands of the agent, for sale, had its origin in the opinion by Marshall, C. J., in the case of Brown vs. Maryland, 12 Wheat., 442.

In that case, an Act of Maryland requiring importers of certain-foreign commodities to take out a license for which they should pay $50, before they should be authorized to sell, was declared to be repugnant to that provision of the Constitution which declares that “no State shall, without the consent of Congress, lay any imposts or duties on imports,”' etc., and also to the provision which declares that “ Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.”

The importer had sold one package of foreign dry goods without having a license.

To the suggestion that the imported article must at sometime be subject to the taxing power of the State, and that such power must attach when it came into the State, the court says, page 451: “ We cannot admit that this point of time is the instant that the articles enter the country. It is, we think, obvious that this construction would defeat the prohibition. The constitutional prohibition on the States to lay a duty on imports — a prohibition which' a vast majority of them must feel an interest in preserving — may certainly come in conflict with their acknowledged power to *366tax persons and property within their territory. The power and restriction on it, though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding as colors perplex the vision in marking the distinction between them. Yet the distinction exists, and must be marked as the oases arise. Till they do arise it might be premature to state any rule as being-universal in its application. It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer in his warehouse in the original form or package in which it was imported, a tax upon it “is too plainly a duty on imports to escape the prohibition of the Constitution.”

It is important to remark that the court is here dealing with the subject of the exclusive power of Congress to impose duties upon imports, and not with the subject of the power to regulate commerce with foreign nations, or among the States.

There can be no doubt that the license tax imposed in the case at bar as a condition to his exercising the right to sell the goods brought into the District of Columbia, by the non-resident manufacturer, is a tax upon the goods themselves in his hands.’ “All must perceive that a tax on the sale of an article imported only for sale, is a tax on the article itself.” Brown vs. Maryland, 12 Wheat., 444.

A license tax imposed upon “drummers,” or persons who offer for sale by sample, so far as concerns the sale of or offer to sell goods not yet brought into the State, is clearly a tax on the goods themselves, and a regulation of interstate commerce. Robbins vs. Shelby Taxing District, 120 U. S., 489; Asher vs. Texas, 128 U. S., 129; Weston vs. Missouri, 91 U. S., 275.

*367Is the tax imposed by this act upon goods brought into the District of Columbia, for sale by a non-resident manufacturer, as a condition precedent to his "right to sell, a regulation of interstate commerce?

In Brown vs. Maryland, under the consideration of this provision of the Constitution the Chief Justice says:

“The conclusion that the right to sell is connected with the law permitting importation as an inseparable incident is inevitable.” * * * “Any penalty inflicted on the importer for selling the article in his character of importer must be in opposition to the act of Congress which authorizes importation. Any charge on the introduction and incorporation of the articles into and with the mass of property in the country must be hostile to the power given to Congress to regulate commerce, since an essential part of that regulation and principal object of it is to prescribe the regular means for accomplishing that introduction and incorporation.” ^

It is then clearly held that the importer has the right to sell the import in its original package, without the burden of any additional tax by the State, by way of license or otherwise, and that it does not lose its exemptive character so long as it remains the property of the importer, in his luarehouse, in the original form or package in which it was imported.

When does the imported merchandise become a part of the general property of the State so as to become subject to its general taxing power ?

In the case of the resident importer the line of distinction is drawn at the point of sale by the importer, or at the point when the .imported package is broken in his hands, when it has lost its distinctive character as an import, and the imported goods mingled with his other goods become a part of the mass of the property of the State. But this rule was not stated as being one of universal application, and its application to the case of goods carried from one State into *368another has been denied. Woodruff vs. Parham, 8 Wall., 123; Brown vs. Houston, 114 U. S., 622.

In the former ease an ordinance of the City of Mobile imposing a tax upon sales by auctioneers was sustained, when applied to sales by them of goods, the product of other States than Alabama, received by them as consignees- and agents and sold in the original and unbroken packages.

In the latter case, coal shipped from Pittsburgh to New Orleans, and resting there in the boats and original condition, packages, in which it was shipped, held for sale for the agents, was held liable to the assessment of a tax imposed generally upon property within the State; that the coal was a commodity in the market of New Orleans, and that it had become a part of the general property of -the State.

It will not do then to say in the case at bar that the soapine in the hands of the relator in the broken box, or package, any more than in the unbroken box has become a part of the mass of the general property of the District-

In Robbins vs. Shelby Taxing District, it is held as within the power of the State among other things, “ the imposition of taxes upon persons residing within the State or belonging to its population, and upon avocations pursued therein not directly connected with foreign or interstate commerce * * * the imposition of taxes upon all property within the State mingled with and forming part of the great mass of property therein. But in making such intern'al regulations a State cannot impose taxes upon persons passing through the state, or coming into it merely for a temporary purpose especially if connected with interstate or foreign commerce, nor can it-impose such taxes upon property imported into the State from abroad, or from another State and not yet become a part of the common mass of property therein.”

Is it reasonable to hold that a non-resident manufacturer* coming into this District for the mere temporary purpose of exercising the privilege of sale of his goods under the free*369dom of interstate commerce, is only protected from local taxation so long as Ins goods remain in the unbroken package in which he has imported them? If his free right to sell is limited to a sale in unbroken packages, the limitation amounts to a denial of the privilege because all exhibition and inspection are prohibited, inasmuch as the opening or breaking of the package for any purpose subjects the seller to the requirement of the license tax.

The clause of the Constitution under consideration includes commerce with the Indian tribes as under the regulation of Congress. Imagine an Indian trader from one of the tribes coming into a State with a bale of skins and furs, and being informed that under a municipal ordinance similar to this, he was free to sell the whole mass, unopened, with package unbroken, but if he opened or exposed them his goods became part of the mass of goods in the State and he was subject to taxation. It would not be tolerated — it would be too plain a violation of that clause of the Constitution. Is it not absurd to hold that an agent may sell without license by sample — but that he may not sell the sample ?

It múst be, that in this case, the non-resident manufacturer bringing his goods into the District-for the temporary purpose of sale, and retaining them in his actual possession, custody and control, such goods do not become part of the mass of goods in the District of Columbia, until he parts with them by sale, or otherwise changes their status.

It is beyond dispute that it is the free right of the Kendall Manufacturing Company to import its goods into the District of Columbia, because it is a right'of interstate commerce (Stoutenburgh vs. Hennick, 129 U. S., 142,) and Congress has not exercised its constitutional right of trammeling it with any regulations.

In Brown vs. Maryland, the court says: “Commerce is intercourse. One of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this- traffic^ *370when given in the most comprehensive terms with the intent that its efficacy should be complete should cease at the point when,its continuance is indispensible to its value. Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensible to to the existence of the entire thing, then, as the importation itself. It must be considered as a component part of the power to regulate commerce.”

Any penalty inflicted on the importer for selling the thing in his character of importer, must be in opposition to that freedom of interstate commerce which must exist until Congress under its constitutional power imposes some restrictions. The absence of such regulation means that interstate commerce is free.

In Leisy vs. Hardin, 135 U. S. App., 124, the court says, with reference to beer imported into the State of Iowa from the State of Illinois, and held for sale by the agent of the manufacturers in Iowa, in the original packages in which it was imported, that notwithstanding a prohibitory statute, “they had the right to import this beer into that State, and in the view which we have expressed they had the right to sell it, by which act alone it would become mingled in the common mass of property within the State. Up to that point of time we hold that in the absence of Congressional permission to do so, the State had no power to interfere by seizure, or any other action in prohibition of importation and sale by the foreign or non-resident importer.”

The Supreme Court of the United States has been careful in construing the provisions of the Constitution restricting the powers .of the States in their general right of taxation, to limit the decision to the actual case before it, anxious not to interfere with the jealously guarded rights of the States.

It has been held to be regulations of interstate commerce.

*371A statute laying a tax upon non-resident drummers offering for sale, or selling goods, wares or merchandise by sample manufactured or belonging to citizens of other States. Robbins vs. Shelby Taxing District; 120 U. S., 489.

Also a statute requiring a license of itinerant dealers in goods, wares and merchandise, not the growth or produce or manufacture of the State. Welton vs. Missouri, 91 U. S., 275.

Also an act of the Legislative Assembly, District of Columbia, imposing a tax upon “commercial agents,” defining them as “ every person whose business it is, as agent, to offer for sale goods, wares, or merchandise by sample, catalogue, of otherwise,” as applied to the case of an agent for a nonresident firm, selling by sample. Stoutenburgh vs. Hennick, 129 U. S., 141.

The question in this case is now for the first time presented here. It has not been before the Supreme Court of the United States in any case reported. It demands a new departure, the drawing of a new line of demarkation back of which the State cannot step for the purpose of taxation,' and that line, in my judgment, in this case is the line of sale by the non-resident importer, temporarily in the District for that purpose, of the goods by him imported, whether in unbroken or broken packages.

The case of Stoutenburgh vs. Hennick, settles the question that the act in question is not a regulation of Congress. The relator should be discharged.