6. Prosecution or Offenders Against License Laws-(a) Indictments. -An indictment for selling without a license must aver that the defendant had not first obtained a license, and that he did pursue the occupation or profession, or did the act or acts for which a license was required.1 (b) Burden of Proof.--On an indictment for selling goods without a license, the burden of proof is on the prosecution.2 (c) Evidence.-Miscellaneous decisions relating to evidence are cited in note.3 under which they embark their skill, enterprise and capital. The statute regulating licensed houses has a very different scope and purpose. It was intended to restrain and prohibit the indiscriminate sale of certain articles deemed to be injurious to the welfare of the community. The effect of a license was merely to permit a person to carry on the trade under certain regulations, and to exempt him from the penalties provided for unlawful sales. It therefore contained none of the elements of a contract. The sum paid for it was merely nominal. And there was no agreement, either express or implied, that it should be irrevocable. On the contrary, it is manifest that this statute, like those authorizing the licensing of theatrical exhibitions and shows, sales of fireworks (Massachusetts Rev. Stat., ch. 58), sales by auction (Massachusetts Rev. Stats., ch. 29), and other similar enactments, was a mere police regulation, intended to regulate trade, prevent injurious practices, and promote the good order and welfare of the community, and liable to be modified and repealed whenever in the judgment of the legislature it failed to accomplish these objects." 1. Indictments.-Under an act prohibiting the sale of personal property "for profit, or on commission, or for other compensation, an information must allege that the sale was for profit or on commission or for other compensation," or it will be fatally defective. Cousins v. Com., 19 Gratt. (Va.) 807. An indictment for keeping a restaurant without license, charging that defendant "did keep a restaurant," is sufficient. Huttenstein v. State, 37 Ala. 157. See also May v. State, 9 Ala. 167; Pike v. State, 35 Ala 419; Alcott 7. State, 8 Blackf. (Ind.) 6; Lewis v. State, 14 Tex. App. 230. In a prosecution for pursuing an oc cupation without a license, when the amount of the tax is variable at the will of the county board, the amount due at the date of the prosecution must be alleged and proved. Archer v. State, 10 Tex. App. 272; Crews v. State, 10 Tex. App. 292. In Massachusetts, it need not be averred that the defendant had not obtained a license, the burden of proof, in that State, being on the defendant to show that he had a license. Com. v. McCarty, 141 Mass. 420. See generally on the question of indictment, Com. v. Fox, io Phila. (Pa.) 204; Com. v. Dudley, 3 Metc. (Ky.) 221; State v. Willis, 37 Mo. 192; State v. Miller, 24 Mo. 532; Page v. State, 6 Mo. 205; Sterne v. State, 20 Ala. 43; May v. State, 9 Ala. 167; State v. Powell, 10 Rich. (S. Car.) 373; Com. v. Smith, 6 Bush (Ky.) 303; Mork v. Com., 6 Bush (Ky. 397; Alcott v. State, 8 Blackf. (Ind.) 6; State v. Hirsch, 45 Mo. 429; State v. Richeson, 45 Mo. 575; Com. v. Twitchell, 4 Cush. (Mass.) 74; Merritt v. State, 59 Åla. 46. 2. Burden of Proof.-State v. Hirsch, 45 Mo. 429; but see Com. v. McCarty, 141 Mass. 30. In Porter v. State, it was held that, upon proof of carrying on business, the defendant must show he has a license. 3. Evidence. It is no defence to an indictment for doing business without a license, that accused applied to the proper officer for a license and tendered the fee. State v. Myers, 63 Mo. 324. Proof of an order directing the issue of a license to a person is not equivalent to proof that he was licensed, as a license may be authorized and not taken out. Schliet v. State, 31 Ind. 246. A complaint for following an occupation without first obtaining a license is not sustained by proof of a single sale. Stanford v. State, 16 Tex. App. 331. III. LICENSES OF THE NATIONAL GOVERNMENT-1. Licenses to Trade in Time of War.—The national government may grant a license to carry on a trade interdicted by war. By the United States Revised Statutes, a heavy penalty is imposed upon any person who carries goods or merchandise into a State declared to be in insurrection, without a license from the president.2 2. Licenses of Officers of Steam Vessels.-The Revised Statutes provide that the board of local inspectors shall license and classify the masters, chief mates, engineers and pilots of all steam vessels.3 No state or municipal government is permitted to impose upon pilots of steam vessels any obligation to procure a State or other license in addition to that issued by the United States. Where the master or mate is also pilot of a steam vessel, he is not required to hold two licenses to perform such duties, but the license issued should state on its face that he is authorized to act in such double capacity. Every such license must be framed under glass and exhibited in a conspicuous place on the vessel. If any licensed officer shall unreasonably refuse to serve in his official capacity on any steamer, as authorized by the terms of his license, his license may be revoked. 3. Licenses to Vessels.-Vessels engaged in domestic commerce or in fishing are licensed by the general government. person who takes out such a license must swear that the vessel shall not be used in any trade or business whereby the revenue of the United States may be defrauded, and he must also give bond to that effect.8 The secretary of a treasury is authorized to grant licenses to yachts used exclusively as pleasure vessels and designed as models of naval architecture, if entitled to be enrolled as American vessels.9 Under the Revised Statutes, licenses may be granted to foreign steamships to unload at night;10 and to passenger vessels to carry gunpowder, if provided with a safe compartment for that purpose.11 4. Licenses to Distil Liquors and to Trade in Liquor and Tobacco.— By various acts of congress, a special tax in the nature of a license tax has been imposed upon distillers, brewers, wholesale and retail liquor dealers, manufacturers of stills and dealers in tobacco.12 1. Rev. Stat., § 5306. 2. See also Wheaton Int. Law 475; I Dods. Adm. 226; Stew. Adm. 367. 3. Rev. Stat., § 438. 4. Rev. Stat., § 4444. 5. Rev. Stat., § 4443. 6. Rev. Stat., § 4446. 7. Rev. Stat., § 4449. 8. Rev. Stat., § 4320. The form of the license is given in Rev. Stat., § 4321. See also U. S. v. Schooner Parynatha 12. Rev. Stat., § 3232-3246, act of February 8th, 1875. See REVENUE LAWS. IV. STATE LICENSES-1. Constitutionality of-(a) Under Federal Constitution.-A State cannot, by a license law, discriminate in favor of its own citizens as against citizens of other States;1 nor can it require any license which will constitute a regulation of interstate commerce.2 (b) Under State Constitutions.-Under the constitutions of the various States, the legislatures may require a license to engage in any trade, business or profession. Such licenses must be uniform, and must not discriminate in favor of one class and against another.3 1. See INTERState CommercE, and subsequent sections of the present arti cle. 2. See INTERSTATE COMMERCE, and subsequent sections of the present arti cle. 3. Constitutionality of State Licenses. -The Pennsylvania act of April 3rd, 1851, P. L. 320, gives to boroughs the power to make needful regulations respecting markets and market days, the hawking and peddling of market produce and other articles in the borough. Under this act the borough of Warren enacted an ordinance requiring persons canvassing from house to house for the sale of books and pictures, shirts, clothing, groceries, etc., to obtain a license and pay a fee therefor. In an action brought against one who had violated the ordinance, the supreme court said: "There is certainly nothing in the ordinance in question in this case which conflicts either with the constitution of the United States or of the State of Pennsylvania. It is an ordinance which requires every person canvassing from house to house in the borough of War ren for the purpose of selling or soliciting orders for books or pictures or certain other enumerated articles, to take out a license from the burgess for that purpose and pay certain fees therefor. By another provision of the ordinance it is declared that it shall not apply to persons holding mercantile licenses within the borough, nor to persons resident in the county selling their own farm produce. The effect of the ordinance would seem to be to subject persons who would otherwise pay no license for the privilege of doing business within the borough, to the duty of paying something for the privilege, when they undertake to exercise it without incurring the expense of a mercantile license. There is surely nothing unreasonable in such a requirement. It is difficult to under stand why one portion of the community which engages in the transaction of business in a municipality should pay a license fee for the privilege of doing so, and another portion should have practically the same privilege without paying for it, simply because the business is done in a different manner. The argument that it is contrary to common right to require a license fee to be paid in the latter case, and, therefore, such a requirement is void, proves too much, since the same argument is applicable to the law requiring any license fees to be paid in any case.' Warren Borough v. Geer, 117 Pa. St. 207. A somewhat similar case is Quartlebaum v. State, 79 Ala. 1, where an act imposing a license tax upon all persons and companies selling sewing machines, but excepting merchants in general business keeping the machines as part of their stocks, was held not unconstitutional, as discriminating between different classes of persons. But see State v. Browning, 62 Mo. 591. The Pennsylvania act of June 10th, 1881, prohibiting peddlers without a license, and ordinance of the city of Pittsburgh, approved December 4th, 1886, are not in conflict with Const. Pa., art. 9, § 1, which provides that all taxes shall be uniform upon the same class of subjects. Kneeland v. Pittsburgh (Pa.), 11 Atl. Rep. 657. In State v. O'Hara, 36 La. An. 94, it was held that a statute which fixed a license fee for places of amusement in cities having more than 25,000 inhabitants, and a smaller amount for those with a less number, was not in contravention of a constitutional provision, requiring the legislature to graduate the amount of the tax. But a city ordinance which, while requiring the same license tax from the owners of meat shops in the old as in the new city limits, permits the one class to sell from shops and wagons and In some cases it has been held that a license is not a tax, and uniformity is not essential.1 2. Attorneys at Law.-In some of the States a license tax is imposed upon attorneys at law. Where such a license is required, admission to the bar and permission by the court to practice law will not relieve the attorney from the payment of the license tax.2 3. Auctioneers. As a police regulation, the various States, and many of the municipal corporations in the United States, require auctioneers to be licensed.3 4. Brokers.-Brokers, and especially real estate brokers, are, in most of the States, required to take out licenses.4 A person who buys or sells stocks for himself is not liable for a brokerage tax,5 nor is a bank which is authorized to deal in securities.6 the other class to sell from shops only, discriminates, and therefore is unconstitutional. St. Louis v. Spiegel, 90 Mo. 587. In Virginia, it is held that the act of 1883, prohibiting a person from selling coupons severed from the State bonds, without a broker's license, is constitutional. Com. v. Maury, 82 Va. 883; Cuthbert v. Com. (Va.) 9 S. E. Rep. 16. Herding Cattle.-A board of county supervisors enacted an ordinance requiring all persons engaged in the business of raising, grazing, herding or pasturing sheep in the county, to annually procure a license, and to pay therefor at the proportionate rate of fifty dollars for every thousand sheep in their possession or under their control, and providing that a violation of the ordinance should consitute a misdemeanor. The court held that the ordinance was not violative of the United States and State constitutions as being unjust, excessive, oppressive, discriminating, special, unequal, or partial, but was valid whether the license imposed thereby was for purpose of revenue or regulation or both. Ez parte Mirande, 73 Cal. 365. See also Nathan v. Louisiana, 8 How. (U.S.) 73; State v. North, 27 Mo. 464; Biddle v. Com. 13 S. & R. (Pa.) 405; License Cases, 5 How. (U. S.) 504; License Tax Cases, 5 Wall. (U. Š.) 462; Patterson v. Kentucky, 11 Chi. Leg. News 183; Marmet v. State, 45 Ohio St. 63; Shepherd v. Sumter Co. Commrs., 59 Ga. 535; Walters v. Duke, 31 La. Än. 668; State v. Sehanhausen, 37 La. An. 42, Thompson v. State, 17 Tex. App. 253. 1. Walters v. Duke, 31 La. An. 668; St. Louis v. Green, 6 Mo. App. 590. In Bullitt v. Paducah (Ky.), 8 S. W. Rep. 802, it was held that authority may be granted to a city to require a license upon any profession, calling, or trade, and it is no objection to the validity of an ordinance in such a case, that the license is required of only one profession. In Ex parte Thornton, 12 Fed. Rep. 538, it was held that the legislature has a right to discriminate against sample merchants in favor of merchants, the State being sovereign mistress of her own policy in determining what classes she shall lay a license tax upon, and what classes he shall exempt from such taxation, and in deciding how lightly or how heavily she shall make such a tax. 2. Attorneys.-Languille v. State, 4 Tex. App. 312; Young v. Thomas, 17 Fla. 169. In Texas, a statute allowing occupations to be licensed quarterly, allows a lawyer to take out a license for three months. Hart v. State, 21 Tex. App. 318. 3. Auctions and Auctioneers.-The statutes are collected in Bateman on Auctioneers, Appendix. See also AUCTIONS AND AUCTIONEERS, vol. 1, p. 978. 4. Brokers.-Little Rock v. Barton, 33 Ark. 436; Hinckley v. Belleville, 43 Ill. 183. See BROKERS, vol, 2, p. 590. 5. State v. Duncan, 16 Lea (Tenn.) 75; Portland v. O'Neill, 1 Oreg. 218. 6. State v. Nashville Savings Bank, 16 Lea (Tenn.) 111. 5. Commercial Travellers.-A State may require persons who are resident within its limits to take out a license to sell goods by sample; but the requirement of such a license from nonresidents is invalid as an attempt to regulate interstate commerce, which is under the exclusive control and jurisdiction of congress. It is now settled that even where the State makes no discrimination in favor of its own citizens by requiring a license from all persons, whether residents or nonresidents, still the license as to nonresidents is a regulation of commerce and unconstitutional.1 1. Commercial Travellers.-In Robbins v. Shelby County Taxing District, 120 U. S. 489, a nonresident commercial traveller was prosecuted for doing business without a license. A Tennessee statute provided that all drummers "and all persons not having a regular licensed house of business in the taxing district of 'Shelby county,' offering for sale, or selling goods, wares, or merchandise therein by sample, shall be required to pay to the county trustee the sum of ten dollars per week, or twenty-five dollars per month for such privilege." The defendant was convicted in the Tennessee court. On writ of error the judgment was reversed by the Supreme Court of the United States. MR. JUSTICE BRADLEY, in delivering the opinion of the court, said: "It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers-those of Tennessee and those of other States; that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the State. This was decided in the case of the State Freight Tax, 15 Wall. (U. S.) 232. The nego tiation of sales of goods, which are in another State, for the purpose of introducing them into the State in which the negotiation is made, is interstate commerce. A New Orleans merchant cannot be taxed there for ordering goods from London or New York, because in the one case it is an act of foreign, and in the other of interstate, commerce, both of which are subject to regulation by congress alone. It would not be difficult, however, to show that the tax authorized by the State of Tennessee in the present case does discriminate against the merchants and manufacturers of other States. They can sell their goods in Memphis by the employment of drummers and by means of samples; whilst the merchants and manufacturers of Memphis, having regular licensed houses of business there, have no occasion for such agents, and if they had, they are not subject to any tax therefor. They are taxed for the licensed houses, it is true; but so, it is presumable, are the merchants and manufacturers of other States in the places where they reside; and the tax on drummers operates greatly to their disadvantage in comparison with the merchants and manufacturers of Memphis. And such was undoubtedly one of its objects. This kind of taxation is imposed at the instance and solicitation of domestic dealers as a means of protecting them from foreign competition. And in many cases there may be some reasons in their desire for such protection. But this shows in a still stronger light the unconstitutionality of the tax. It shows that it not only operates as a restriction upon interstate commerce, but that it is intended to have that effect as one of its principal objects. And if a State can, in this way, inpose restriction upon interstate commerce, for the benefit and protection of its own citizens, we are brought back to the condition of things which existed before the adoption of the constitution, and which was one of the principal causes that led to it. If the selling of goods by sample and the employment of drummers for that purpose injuriously affect the local interest of the State, congress, if applied to, will undoubtedly make such reasonable regulations as the case may demand. And congress alone can do it; for it is obvious that such regulations should be based on a uniform system, applicable to the whole country, and not left to the varied, discordant or retaliatory enactments of forty different States. The confusion into which the commerce of the country would be thrown |