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men. Persons travelling from town to town of them, by placards or labels, or by a conwith goods and merchandise. These were ventional signal, like the sound of a horn under the control of commissioners for *li. for the sale of fish. But our statute goes censing them for that purpose, under St 8 further, and not only proscribes actual & 9 Wm. III. c. 25; 9 & 10 Wm. III. C. 23 hawkers and peddlers, whose employment (9 Wm. III. C. 27); 29 Geo. III. c. 26."

is that of traveling traders, and thus seems The act of 50 Geo. III. C. 41, repealed the to refer to a business or habitual occupation, prior acts, and imposed a penalty on "any but it extends to all persons doing the acts bawker, pedlar, petty chapman, or any oth-proscribed.” Com. v. Ober (1853) 12 Cush. er trading person or persons, going from 493, 495. town to town, or to other men's houses, and In that case it was objected that the stattravelling, either on foot, or with horse or ute was repugnant to the constitution of the horses," and exposing to sale, or selling United States, because at variance with the goods, wares, or merchandise by retail. Up- exclusive right of congress to regulate comon an information in the court of exchequer merce with foreign nations and among the to recover penalties under that act, Baron several states, and with the Indian tribes, Graham said: “The object of the legislature, to which Chief Justice Shaw answered: in passing the act upon which this informa “The law in question interferes with none tion is founded, was to protect, on the one of these.” “We consider this as wholly an band, fair traders, particularly established internal commerce, which the states have shopkeepers, resident permanently in towns a right to regulate; and in this respect this or other places, and paying rent and taxes law stands on the same footing with the there for local privileges, from the mischiefs laws regulating sales of wine and spirits, of being undersold by itinerant persons, to sales at auction, and very many others which their injury, and, on the other, to guard the are in force and constantly acted upon." 12 public from the impositions practiced by Cush. 497. such persons in the course of their dealings, In Michigan a city ordinance, passed unwho, having no known or fixed residence, der authority of the legislature, prohibiting carry on a trade by means of vending goods peddling without a license from the mayor, conveyed from place to place by horse or was held constitutional, and Chief Justice cart.” Attorney General v. Tongue (1823) Cooley said: “That the regulation of hawk12 Price, 51, 60.

ers and peddlers is important, if not abso. In Massachusetts, both before and after lutely essential, may be taken as established the adoption of the constitution of the Unit by the concurring practice of civilized ed States, successive statutes imposed pen states. They are a class of persons who alties on hawkers, peddlers, and petty chap travel from place to place among strangers,

7 Dane, Abr. 72; St. 1713-14, c. 7 and the business may easily be made a pre(1 Prov. Laws, 720); Id. 1716-17, c. 10; Id. tense or a convenience to those whose real 1721-22, c. 6; Id. 1726–27, c. 4 (2 Prov. Laws, purpose is theft or fraud. The requirement 47, 232, 385); Id. 1785, c. 2; Id. 1799, c. 20; of a license gives opportunity for inquiry inId. 1820, c. 45; Rev. St. 1836, c 35, 88 7, 8. to antecedents and character, and the payThe statute of 1846 (chapter 244), repealing ment of a fee affords some evidence that the the earlier statutes, imposed a penalty on business is not a mere pretense." People v. "every hawker, peddler or petty chapman, or Russell (1893) 49 Mich. 617, 619, 14 N. W. other person, going from town to town, or 568. from place to place, or from dwelling-house In the courts of many other states, statto dwelling-house in the same town, either utes imposing a penalty for peddling withon foot, or with one or more horses, or other out a license all goods of particular kinds, wise carrying for sale, or exposing to sale, and not discriminating against goods brought any goods, wares or merchandise" (with cer from other states or from foreign countries, tain exceptions), without first obtaining a have been held not to be repugnant to the license as therein provided.

constitution of the United States. Cowles In a case under that statute, Chief Justice V. Brittain (1822) 2 Hawks, 204; Wynne v. Shaw said: “The leading, primary idea of a Wright (1834) 1 Dev. & B. 19; Tracy v. 'hawker and peddler' is that of an itinerant State (1829) 3 Mo. 3; Morrill v. State (1875) or traveling trader, who carries goods about, 38 Wis. 428; Machine Co. v. Cage (1876) 9 in order to sell them, and who actually sells Baxt 518; Graffty v. City of Rushville (1886) them to purchasers, in contradistinction to 107 Ind. 502, 8 N. E. 609; State v. Richards a trader who has goods for sale and sells (1889) 32 W. Va. 348, 9 S. E. 245; Com. v. them in a fixed place of business. Super Gardner (1890) 133 Pa. St. 284, 19 Atl. 550. added to this, though perhaps not essential, The statute of Missouri under which the by a 'hawker' is generally understood one conviction in the case at bar was had is who not only carries goods for sale, but contained in a separate chapter of the Reseeks for purchasers, either by outcry, which vised Statutes of the state, entitled “Ped. some lexicographers conceive as intimated dlers and Their Licenses," and relating to by the derivation of the word, or by attract no other subject. By this statute, “Whoever ing notice and attention to them as goods shall deal in the selling of” any goods, wares, for sale by an actual exhibition or exposure or merchandise (except books, charts, maps,




and stationery) "by going from place to sale of sewing machines, having with hila place to sell the same, is declared to be a in the wagon at least one of those machines, peddler," and is prohibited from dealing as and offering that machine for sale to various a peddler without a license. Rev. St. 1879, persons at different places, and that he final88 6471, 6472. The license is required to ly sold it, and delivered it to the purchaser. state how the dealing is to be carried on, The conclusion that such dealing made him whether on foot, or with one or more beasts a peddler, within the meaning of the statute of burden, a cart or wagon, or a boat or ves of the state, and of the information on sel,--and may be obtained by any person which he was convicted, presents, of itself, paying the tax prescribed, according to the no constitutional question. manner in which the business is carried on. • The facts appear to have been agreed for Sections 6473, 6476, 6477. Any person deal tne purpose of presenting the question ing as a peddler, without a license, whether whether the statute was repugnant to the with a pack, a wagon, or a boat, is to pay constitution of the United States. This was a certain penalty, which, in the case of ped- the only question discussed in the opinion ling in a cart or wagon, is $50. Section of the supreme court of Missouri.

And 6478. And any peddler who refuses to ex it is the only one of which this court has hibit his license on demand of a sheriff, col. jurisdiction upon this writ of error. lector, constable, or citizen householder of The defendant's occupation was offering the county is to forfeit the sum of $10. Sec for sale and selling sewing machines, by tion 6479.

going from place to place in the state of The facts were agreed that the Singer Missouri, in a wagon, without a license. Manufacturing Company, for more than five There is nothing in the case to show that years last past, and on the day in question, he ever offered for sale any machine that was a corporation of New Jersey; that the he did not have with him at the time. His defendant, on and prior to that day, was in dealings were neither accompanied nor folthe employment of that company, and on lowed by any transfer of goods, or of any that day, in pursuance of that employment, order for their transfer, from one state to and having no peddler's license, was engaged another, and were neither interstate comin going from place to place in Montgomery merce, in themselves, nor were they in any county, in the state of Missouri, with a way directly connected with such commerce. horse and wagon, soliciting orders for the The only business or commerce in which he sale of the company's sewing machines, and was engaged was internal and domestic, and, having with him in the wagon one of those so far as appears, the only goods in which he machines, the property of the company, and was dealing had become part of the mass of manufactured by it at its works in New Jer property within the state. Both the occupa. sey, and which it had forwarded and deliv tion and the goods, therefore, were subject ered to him for sale on its account; and that to the taxing power, and to the police power, he offered this machine for sale to various of the state. persons at different places, and found a The statute in question is not part of a purchaser, and sold and delivered it to him. revenue law. It makes no discrimination

The supreme court of the state, in its opin between residents or products of Missouri ion, understood and assumed the effect of and those of other states, and manifests no those facts to be as follows: "The defend intention to interfere in any way with inant was engaged in going from place to terstate commerce. Its object in requiring place, selling and trying to sell sewing ma peddlers to take out and pay for licenses, chines, in Montgomery county, in this state, and to exhibit their licenses, on demand, to and had been so engaged for some years. any peace officer or to any citizen house. He carried the machines with him in a wag holder of the county, appears to have been on, and, on making a sale, delivered those to protect the citizens of the state against sold to the purchaser. He was not only so the cheats and frauds, or even thefts, which, liciting orders, but was making sales, and as the experience of ages has shown, are delivering the property sold. These acts likely to attend itinerant and irresponsible bring him clearly within the statutory deti peddling from place to place and from door nition of a 'peddler'; and, having no license to door. from the state, he became liable to the pen If this question were now brought before alties imposed by the statute, unless, for this court for the first time, there could hardany reason, he was exempt from the opera ly be a doubt of the validity of the statute. tions of the law." 103 Mo. 247, 15 S. W. 81. But it is not a new question in this court. It is argued by one of his counsel that this The decision at October term, 1879, in the was an unwarranted conclusion from the case reported as Machine Co. v. Gage, 100 facts agreed. But the construction of those U. S. 676, affirming the judgment of the sufacts does not present a federal question, ex preme court of Tennessee in Machine Co. v. cept so far as it involves the constitutionali Cage,*9 Baxt. 518, is directly in point. The ty of the statute. Upon any construction, facts agreed, upon which that case was subit is clear that the defendant was engaged mitted, as shown by the record, were as folin going from place to place within the state, lows: The Howe Machine Company, a cor. without a license, soliciting orders for the poration of Connecticut, manufactured sew.


ing machines at Bridgeport, in that state, without a license. This state of things is and had an office at Nashville, in the state changed if he sells them, or otherwise mixes of Tennessee, and sent an agent into Sumner them with the general property of the state, county for the purpose of selling or peddling by breaking up his packages, and traveling machines, who traveled through the coun with them as an itinerant peddler. In the try in a wagon, with one horse, for the pur first case the tax intercepts the import as an pose of exhibiting and offering for sale the import in its way to become incorporate with company's machines. That the machines of the general mass of property, and denies it the fered for sale and sold by him were manu privilege of becoming so incorporated, until factured in Connecticut, and brought into it shall have contributed to the revenue of the Tennessee for sale, and that he paid, under state. It denies to the importer the right protest, a tax required of him under the of using the privilege which he has purstatutes of Tennessee for the privilege or chased from the United States, until he shall license to peddle or sell the machines of the also have purchased it from the state. In company in Sumner county. By those stat the last cases the tax finds the article alutes, wall articles manufactured of the prod-ready incorporated with the mass of propuce of the state” were exempt from taxation, erty by the act of the importer. He has used and “all peddlers of sewing machines” were the privilege he had purchased, and has himrequired to pay a tax of $15. The supreme sell mixed them up with the common mass, court of Tennessee having held that the latter and the law may treat them as it finds them. provision “levied a tax upon all peddlers of The same observations apply to plate or sewing machines, without regard to the place other furniture used by the importer. So, if of growth or produce of material, or of manu he sells by auction. Auctioneers are perfacture," this court, speaking by Mr. Justice sons licensed by the state, and if the importSwayne, considered itself “bound to regard er chooses to employ them he can as little this construction as correct, and to give it object to paying for this service as for any the same effect as if it were a part of the other for which he may apply to an officer statute," and decided that "the statute in of the state. The right of sale may very question, as construed by the supreme court well be annexed to importation without anof the state, makes no such discrimination. nexing to it also the privilege of using the It applies alike to sewing machines manu officers licensed by the state to make sales factured in the state, and out of it. The ex in a peculiar way." 12 Wheat. 413. action is not an unusual or unreasonable *A like distinction was recognized in the one. The state, putting all such machines United States internal revenue act of 1862, upon the same footing with respect to the in which “peddlers" were distinguished from tax complained of, had an unquestionable "commercial brokers," and were subjected to right to impose the burden.” 100 U. S. 677, a different license tax. Among "commercial 679.

brokers" was classed "any person or firm, exIt has been strenuously argued that that cept one holding a license as wholesale dealer decision is inconsistent with earlier and later or banker, whose business it is, as the agent of decisions of this court upon the subject of others, to purchase or sell goods, or seek orthe powers of the several states, as affected ders therefor, in original or unbroken pack. by the grant by the constitution to congress ages or produce.” “Peddlers" were thus deof the power to regulate commerce. It be fined: “Any person, except persons peddling comes necessary, therefore, to examine those newspapers, Bibles or religious tracts, who decisions with care, beginning with the ear sells or offers to sell, at retail, goods, wares lier ones.

or other commodities, travelling from place In the leading case of Brown v. Maryland to place, in the street, or through different (1827) 12* Wheat. 419, in which it was ad parts of the country, shall be regarded as a judged that a statute of Maryland, requiring, peddler, under this act.” Act July 1, 1862, c. under a penalty, importers or other persons 119, 8 64, cls. 14, 27 (12 Stat. 457, 458). selling foreign goods by the bale or package to In Woodruff v. Parham (1868) 8 Wall. 123, take out and pay for a license, was repugnant it was adjudged by this court, speaking by to the constitution of the United States, both Mr. Justice Miller, that a uniform tax imas laying an impost or duty on imports with posed by ordinance of the city of Mobile, unout the consent of congress, and as incon der authority from the legislature of Alasistent with the power of congress to regu bama, on all sales by auction in the city, was late commerce with foreign nations, Mr. constitutional, because it was "a simple tax Taney and Mr. Johnson, for the state of on sales of merchandise, imposed alike upon Maryland, argued that the tax was "laid all sales made in Mobile, whether the sales upon the same principle with the usual taxes be made by a citizen of Alabama or of anon retailers or innkeepers, or hawkers and other state, and whether the goods sold are pedlars, or upon any other trade exercised the produce of that state or some other. within the state." Id. 425.

There is no attempt to discriminate injuri. Chief Justice Marshall, in answering that ously against the products of other states, or argument, said: “This indictment is against the rights of their citizens; and the case is the importer for selling a package of dry not, therefore, an attempt to fetter commerce goods, in the form in which it was imported, among the states, or to deprive the citizens



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of other states of any privilege or immunity “The commercial power continues until tho possessed by citizens of Alabama.

But a

commodity has ceased to be the subject of law having such operation would, in our discriminating legislation by reason of its opinion, be an infringement of the provi- | foreign character. That power protects it, sions of the constitution which relate to those even after it has entered the state, from any subjects, and therefore void." Id. 140. burdens imposed by reason of its foreign

In Hinson v. Lott, 8 Wall. 148, decided at origin. The act of Missouri encroaches up-
the same time, it was adjudged by this court, on this power in this respect, and is there-
speaking by the same eminent justice, that fore, in our judgment, unconstitutional and
a statute of that state, imposing a tax of 50 void." And he referred to the passages in
cents per gallon, to be paid by the distiller, the opinions in Brown v. Maryland and in
on all intoxicating liquors manufactured Woodruff v. Parham, above cited, as support-
within the state, and a like tax, to be paid by ing the conclusion. 91 U. S. 282. The stat.
the importer, on all intoxicating liquors in ute of Missouri now before the court omits
troduced into the state for sale, was constitu the discriminating words, "which are not the
tional, on the ground “that no greater tax is growth, produce or manufacture of this state,”
laid on liquors brought into the state than upon which that decision was grounded.
on those manufactured within it," and "that In Cook v. Pennsylvania (1878) 97 U. S.
whereils collecting the tax or the distiller 566, in which a tax upon auctioneers, meas-
was supposed to be the most expedient mode ured by the amount of their sales, was beld
of securing its payment, as to liquors manu to be invalid as to sales by auction of im.
factured within the state, the tax on those ported goods in the original package, the
who sold liquors brought in from other states statute under which the tax was imposed
was only the complementary provision, nec made a discrimination against imported, as
essary to make the tax equal on all liquors compared with domestic, goods; and the de
sold in the state. As the effect of the act is cisions in Woodruff V. Parham, Hinson v.
such as we bave described, and it institutes Lott, and Welton v. Missouri, above cited,
no legislation which discriminates against were referred to as controlling. 97 U. S.
the products of sister states, but merely sub 569, 573.
jects them to the same rate of taxation which The decision in Machine Co. v. Gage, 100
similar articles pay that are manufactured U. S. 676, above stated, is thus shown to have
within the state, we do not see in it an at been in exact accordance with the law as de
tempt to regulate commerce, but an appro clared in previous decisions. Indeed, Wood.
priate and legitimate exercise of the taxing ruff v. Parham, Hinson v. Lott, Ward v. Ma-
power of the states." Id. 153.

ryland, and Welton v. Missouri were cited in
In Ward v. Maryland (1870) 12 Wall. 418, its support. 100 U. S. 679.
a statute of Maryland requiring all traders That decision is no less consistent with the
residing within the state to take out licenses subsequent decisions of this court, as will
at certain rates, and subjecting to indictment appear by an examination of them.
and penalty persons not residents of the In Webber v. Virginia (1880) 103 U, S. 314,
state, who, without taking out a license at a 347, this court, speaking by Mr. Justice Field,
higher rate, should sell or offer for sale, by affirmed the doctrine that “the right con-
card, sample, or trade list, within the limits ferred by the patent laws of the United
of the city of Baltimore, any goods, wares, or States, to inventors, to sell their inventions
merchandise whatever, other than agricultur and discoveries, does not take the tangible
al products and articles manufactured in the property in which the invention or discovery
state, was held to be unconstitutional, be may be exhibited or carried into effect from
cause it imposed a discriminating tax upon the operation of the tax and license laws oi
the residents of other states.

the state”; and the reason why a tax imIn Welton v. Missouri (1875) 91 U. S. 275, posed by a statute of Virginia upon persons a statute of Missouri, by which "whoever selling, without license, patented articles not shall deal in the selling of patent or other owned by them, was held to be invalid, as* medicines, goods, wares or merchandise, ex applied to sales of sewing machines manucept books, charts, maps and stationery, factured in another state, was that the stat. which are not the growth, produce or manu. ute made “a clear discrimination in favor of facture of this state, by going from place to home manufacturers, and against the manu. place to sell the same, is declared to be a facturers of other states.” Id. 350. peddler," and which prohibited, under a pen In Brown v. Houston (1885) 114 U. S. 622, alty, dealing as a peddler, without taking out 5 Sup. Ct. 1091, coal brought in flatboats a license and paying a certain sum therefor, from Pittsburg to New Orleans was still but required no license for selling, by going afloat in the Mississippi river after its ar. from place to place, any goods, the growth, rival, in the same boats, and in the same produce, or manufacture of the state, was condition in which it had been brought, and held, by reason of such discrimination, to be was held in order to be sold on account of unconstitutional and void, as applied to a the original owners, by the boat load. Yet peddler within the state of sewing machines this court unanimously decided that a tas manufactured without the state. Mr. Jus imposed by general statutes of the state of tice Field, in delivering judgment, said: Louisiana upon this coal was valid, and,

speaking by Mr. Justice Bradley, said: “It might impose “taxes upon persons residing was not a tax imposed upon the coal as a within the state, or belonging to its populaforeign product, or as the product of another tion, and upon avocations and employments state than Louisiana, nor a tax imposed by pursued therein, not directly connected with reason of the coal being imported or brought foreign or interstate commerce, or with some into Louisiana, nor a tax imposed whilst it other employment or business exercised under was in a state of transit through that state authority of the constitution and laws of the to some other place of destination. It was United States," and also "taxes upon all propimposed after the coal had arrived at its erty within the state, mingled with and formdestination, and was put up for sale. The ing part of the great mass of property therecaal had come to its place of rest, for final in," although it could not "impose such taxes disposal or use, and was a commodity in the upon property imported into the state from market of New Orleans." "The taxing of abroad, or from another state, and not yet goods coming from other states, as such, or become part of the common mass of property by reason of their so coming, would be a therein; and no discriinination can be made, discriminating tax against them, as imports, by any such regulations, adversely to the and would be a regulation of interstate com persons or property of other states, and no merce inconsistent with that perfect freedom regulations can be made, directly affecting of trade which congress has seen fit should interstate commerce." 120 U. S. 493, 494, 7 remain undisturbed. But if, after their ar Sup. Ct. 592. rival within the state_that being their place The distinction on which that judgment of destination for use or trade-if, after this, proceeded is clearly brought out in the folthey are subjected to a general tax, laid allke lowing passages of the opinion: “As soon as on all property within the city, we fail to the goods are in the state, and become part see how such a taxing can be deemed a of its general mass of property, they will beregulation of commerce which would have conie liable to be taxed in the same manner the objectionable effect referred to." 114 U.

as other property of similar character, as S. 632-634, 5 Sup. Ct. 1091.

was distinctly held by this court in the case In Walling v. Michigan (1886) 116 U. S. 446, of Brown v. Houston, 114 U. S. 622, 5 Sup. 6 Sup. Ct. 45+, the statute of Michigan which Ct. 1091. When goods are sent from one was held to be an unconstitutional restraint state to another for sale, or in consequence of interstate commerce imposed different of a sale, they become part of its general taxes upon the business of selling or solicit property, and amenable to its laws, provided ing the sale of intoxicating liquors, according that no discrimination be made against them as the liquors were manufactured within the as goods from another state, and that they state, or were to be sent from another state; be not taxed by reason of being brought from and this court, agaio-speaking by Mr. Justice another state, but only taxed in the usual Bradley, declared that the police power of way as other goods are. Brown v. Houston, the state "would be a perfect justification of qua supra; Machine Co. v. Gage, 100 U. S. the act, if it did not discriminate against the 676. But to tax the sale of such goods, or citizens and products of other states in a the offer to sell them, before they are brought matter of commerce between the states, and into the state, is a very different thing, and thus usurp one of the prerogatives of the na seems to us clearly a tax on interstate comtional legislature." 116 U. S. 460, 6 Sup. Ct. merce itself." "The negotiation of sales of 451.

goods wbich are in another state, for the In Robbins v. Taxing Dist. (1887) 120 U. S. purpose of introducing them into the state 489, 7 Sup. Ct. 592, indeed, the majority of in which the negotiation is made, is interthe court beld that a statute of Tennessee state commerce." 120 U. S. 497, 7 Sup. Ct. requiring “all drummers, and all persons not

592. baving a regular licensed house of business The decision in Machine Co. v. Gage, as to in the taxing district, offering for sale or a peddler carrying with him for sale goods selling goods, wares or merchandise therein already in the state, was thus expressly recby sample,” to pay a certain sum weekly or ognized, and was distinguished from the case monthly for a license, was, as applied to per then before the court, of a drummer selling sons soliciting orders for goods on behalf of or soliciting orders for goods which were at houses doing business in other states, uncon the time in another state. And in the disstitutional, as inconsistent with the power of senting opinion, delivered by Chief Justice Congress to regulate commerce among the Waite, in which two other justices concurseveral states.

rcd, it was assumed, as incontrovertible, that But in the opinion of the majority of the another provision of the same statute, recourt, delivered by Mr Justice Bradley, it quiring a license fee from all peddlers within was expressly affirmed that a state, although the district, could not be held unconstitucommerce might thereby be incidentally af tional in its application to peddlers who came fected, might pass "inspection laws to secure with their goods from another state, and exthe due quality and measure of products and pected to go back again. 120 U. S. 501, 7 commodities," and "laws to regulate or restrict the sale of articles deemed injurious to In Asher v. Texas (1888) 128 U. S. 129, 9 the bealth or morals of the community," and Sup. Ct 1, and in Brennan v. City of Titus.


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