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the latter furnishes some restrictions; and some things, once deemed by the state courts permissible under it, have been adjudged by the supreme court of the United States, the tribunal of the last resort, not to be. Like the statutes restraining liquor-selling,' these upon peddling cannot be made to interfere with the vending of imports in the original packages, or with any other rights under the constitution and laws of the United States. Nor, though congress has not exercised its constitutional power to regulate commerce between the states, can they fetter it. Therefore they cannot discriminate against goods which are the growth, product or manufacture of other states,- or, probably, imported goods whereon duties have been paid, — by requiring a license to peddle or otherwise vend thein, while none, or one at a less price, is exacted for selling in the same way what is grown or made in the state. In Louisiana a statute required a license tax of "all traveling agents from other states, offering any species of merchandise for sale or selling the same," not including therein the people of the state; and this was by the state court held to violate the provision of the constitution of the United States," that “the citi- . zens of each state shall be entitled to all privileges and immunities of citizens in the several states." Apparently more or less in contradiction of this are various adjudications in other states.? But, if we should assume the Louisiana court to be wrong in attributing this consequence to this particular provision while thus standing alone, we might still inquire whether it does not result from it and the clause of the fourteenth amendment combined, that “no state shall make or enforce
Mich. 576, 49 N. W. R. 633; Borough Virginia, 103 U. S. 344; Mobile v. Kimof Sayre v. Phillips, 148 Pa. St. 482, ball, 102 U. S. 691; Tiernan v. Rinker, 24 Atl, R. 76, 33 Am. St. R. 842, 16 L 102 U. S. 123; S. v. McGinnis, 37 Ark. R. A. 49; Borough of Shamokin v. 362; S. v. Browning, 62 Mo. 591; Van Flannigan, 156 Pa. St. 43, 26 Atl. R. Buren v. Downing, 41 Wis. 122. And 780.]
see ante, & 990b; Guy v. Baltimore, 1 Ante, S 990.
100 U. S. 434. (See also Village of 2 P. v. Moring, 47 Barb. 642; Cook Braceville v. Doherty, 30 IIL Ap. 645.) v. Pennsylvania, 97 U. S. 566. See 5 Const. U. S., art. 4, S 2. Woodruff v. Parham, 8 Wall. 123. 6 McGuire v. Parker, 32 La. An. 832. 3 S. v. Butler, 3 Lea, 222.
7 Davis v. Dashiel, Phillips (N. C. !, * Welton v. S., 91 U. S. 275 (revers 114; Mork v. Com., 6 Bush, 397; Ward ing S. v. Welton, 55 Mo. 288); Hall v. v. S., 31 Md. 279, [1 Am. R. 50;] Com. De Cuir, 95 U. S. 485, 490; Webber v. v. Smith, 6 Bush, 303.
any law which shall abridge the privileges or immunities of citizens of the United States. To burden a “citizen of the
” United States” with a tax not imposed on the citizens of the state would seem, in reason, to abridge his "privileges” and “immunities." I
II. THE PROCEDURE.
$ 1081. Indictment.— The terms of our statutes against hawking and peddling so vary as to render difficult the laying down of rules for the indictment, beyond the general ones which govern all indictments on statutes.? A few questions, hitherto considered, are
$ 1082. As hawker and peddler.- Under a statute making it an offense for a peddler, etc., to go about without license “exposing to sale any goods,” an allegation that, at a time and place mentioned, the defendant was a peddler, etc., and then and there went about exposing to sale goods, etc., and then and there sold a specified article, was held to be inadequate, because not charging that he sold the article as, or while going about as, such peddler. Now,
$ 1083. In reason,- this decision is wrong; because the statute did not make a selling an element in the offense, so that the allegation of it was mere surplusage; and because, if it did, to say that the defendant was a peddler and sold was to charge him with selling as peddler. Again,
$ 1084. How specific as to act of sale.- Under a statute the terms whereof do not appear in the report, but it contained the word “business,” an indictment was sustained which charged
" that, at a time and place named, the defendant“was engaged in the business of hawking and peddling, and, being so engaged, he then and there pursued the business of hawking and peddling in one wagon,” etc.; not further particularizing the peddling,
1 And compare with Guy v. Balti- 206, 72 N. W. R. 67, 65 Am. St. R. 565, more, 100 U. S. 434; Liverpool Ins. 38 L. R. A. 677. But see S. v. Conlon, Co. v. Massachusetts, 10 Wall. 566; 65 Conn. 478, 33 Atl. R. 519, 48 Am. San Mateo v. Southern Pacific R. R. St. R. 227, 31 L. R. A. 55.] Co. (Railroad Tax Cases), Sept. 25, 2 Crim. Pro., I, SS 593–642. 1882, by Judges Field and Sawyer, 13 3 Com, v. Bruckheimer, 14 Gray, 29; Fed. R. 722; (S. v. Wagener, 69 Minn. (Hays v. Com. (Ky.), 55 S. W. R. 425.]
or specifying any sale. Said Goldthwaite, J.: “The term 'business,' as employed in the statute, being continuous in its character, not necessarily implying a single act or any number of acts, forms an exception to the general rule, and falls within the principle applicable to barratry and some other offenses, that, where the charge is of a complicated nature, consisting of a repetition of acts, or where the offense includes a continuation of acts, it is unnecessary to set them out in the indictment.” 1 For this doctrine there are analogies in the rulings respecting the form of the indictment for being an unlicensed common seller of intoxicating liquors. But,
$ 1085. Inadequate.- Under another statute it was adjudged insufficient to say that, at a specified time and place, the defendant “did sell and expose to sale divers goods, wares and merchandise," he " then and there being a peddler, and not having obtained a lawful license for that purpose.” An accused person “should,” said the court, “ be so definitely charged that he may know how to shape his defense."3 Here, it is perceived, individual sales, in distinction from a business, are the gravamen of the accusation, and they are not specifically set out. Again,
§ 1086. Averment of business. Under a statute not given in the report, it was held inadequate to charge, says the reporter, that the defendant, “not having any license or authority to vend clocks within the county of Wayne, did, in that county, unlawfully sell and vend to a certain person three brass clocks, for the sum of $20 each, whereby the revenue of the county was diminished and defrauded.” The court deemed
” that the offense consisted, not in making a single unlicensed sale, but in being employed in the selling, and this was not charged.
$ 1087. On the whole, while these illustrations will be helpful, the main reliance of the pleader, under statutes so diverse as those on the present subject, will be upon the general principles of the art.
1 Sterne v. S., 20 Ala. 43.
4 Alcott v. 8., 8 Blackf. 6; [S. v. 2 Com. v. Pray, 13 Pick. 359. Foster (R. L), 43 Atl. R. 66; Com. e.
3S. v. Powell, 10 Rich. 373, 374; Heckinger (Ky.), 42 S. W. R. 101.] [Keller v. S. (Ala.), 26 S. W. R. 323.]
$ 1088, Negativing.– The indictment must negative that there was a license.'
Other points,- not of much general interest, appear in the cases cited in the note.?
1 May v. S., 9 Ala. 167; (S. v. Mont. 7 Humph. 36; Com. v. Samuel, 2 Pick. gomery, 92 Me. 13, 43 Atl. R. 13; Hall 103; Com. v. Dudley, 3 Met. (Ky.) v. S., 39 Fla. 637, 23 S. R. 119.]
221; S. v. Hirsch, 45 Mo. 429; S. v. 2 Higby v. P., 4 Scam. 165; Mer- Richeson, 45 Mo. 575; Campbell v. riam v. Langdon, 10 Conn. 460; Hirsch- Thompson, 16 Me 117; (Shiff v. 8., 84 felder v. 8, 18 Ala. 112; S. v. Sprinkle, Ala. 454, 48. R. 419.]
FURTHER OF UNLICENSED BUSINESS.
1098. In breach of revenue laws
$ 1089. Already,- in the last five chapters, and in those on gaming and lotteries, the leading principles relating to unlicensed business have been brought to view. Still,
Here.—There being other occupations the conducting whereof without a license is by statutes made punishable, we shall in this chapter call to mind some of them, cite the principal cases, and add such explanations as seem desirable.
Classification — (Order of society - Revenue).— No attempt at precision in the classification of these statutes will be made. For mere convenience we shall distinguish between those the principal object whereof is the good order of society, and those whose chief aim is revenue. But the double motive- neither alone — has prompted the enactment of many of them; so that this division is unscientific and largely arbitrary. For convenience, then,
How chapter divided.- We shall consider, I. Dealing as a merchant without license; II. Unlicensed business violative of public order; III. Unlicensed business in breach of the revenue la ws.
I. DEALING AS A MERCHANT WITHOUT LICENSE.
§ 1090. Statute — (“Deal” – "Merchant" “Merchandise").— A statute in Missouri, and in one or more of the other states, makes punishable any person who, individually or as a partner, “shall deal as a merchant without a license.” And the Missouri statute defines a merchant to be one who shall deal in the selling of goods, wares and merchandise, at any store, stand or place occupied for that purpose.” A single sale