Under the authority conferred upon Congress by § 8, Article I,
of the Constitution "to make all laws which shall be necessary or
proper for carrying into execution" the power "to exercise
exclusive legislation in all cases whatsoever over" the District of
Columbia, Congress may constitute the District "a body corporate
for municipal purposes," but can only authorize it to exercise
municipal powers.
The Act of the Legislative Assembly of the District of Columbia
of August 23, 1871, as amended June 20, 1872, relating to license
taxes on persons engaging in trade, business or profession within
the District, was intended to be a regulation of a purely municipal
character; but nevertheless the provision in clause 3 of § 21,
which required commercial agents, engaged in offering merchandise
for sale by sample, to take out and pay for such a license is a
regulation of interstate commerce so far as applicable to persons
soliciting the sale of goods on behalf of individuals or firms
doing business outside of the District, and it was not within
the
Page 129 U. S. 142
constitutional power of Congress to delegate to that legislature
authority to enact a clause with such a provision, nor did it in
fact do so in a grant of power for municipal purposes.
Robbins v. Shelby County Taxing District, 120 U.
S. 489, and
Asher v. Texas, 128 U.
S. 129, affirmed.
The repeal or modification by Congress of clauses in a
legislative act of the District of Columbia, which are separable
and separably operative, is no ratification of another clause in
it, equally separable and separably operative, which it was beyond
the delegated or constitutional power of the legislature of the
District to enact.
Hennick, the defendant in error, was convicted in the police
court of the District of Columbia upon an information stating that
he, in April, 1887,
"did engage in the business of a commercial agent, to-wit, the
business of offering for sale, as agent of Lyons, Conklin &
Co., a firm doing business in the City of Baltimore, State of
Maryland, certain goods, wares, and merchandise by sample,
catalogue, and otherwise, without having first obtained a license
to do so, contrary to and in violation of an act of the late
legislative assembly of the District of Columbia entitled 'An act
imposing a license on trades, business, and professions practiced
or carried on in the District of Columbia,' and providing for the
enforcement and collection of fines and penalties for carrying on
business in the said district without license, approved August 23,
A.D. 1871, and the amendments to the said act, approved June 20,
A.D. 1872,"
and sentenced "to pay a fine of five dollars, in addition to the
license tax of two hundred dollars, and in default to be committed
to the workhouse for the term of sixty days," and, being in
default, was so committed. He applied to one of the justices of the
supreme court of the District for and obtained a writ of habeas
corpus, which was certified to be heard in the first instance in
the general term of that court, and, upon hearing, it was held
"that the law for the violation of which the petitioner is held is
not a valid law," and his discharge from custody was ordered
accordingly; whereupon this writ of error was sued out.
The act in question was passed by the then legislative assembly
of the District August 23, 1871, and amended June 20, 1872 (Laws
District of Columbia, Acts First Session, p. 87,
Page 129 U. S. 143
Acts Second Session, p. 60), and by its first section it was
provided:
"That no person shall be engaged in any trade, business, or
profession hereinafter mentioned until he shall have obtained a
license therefor as hereinafter provided."
Then followed twenty-three sections, of which the twenty-first
is subdivided into forty-eight clauses. Clause 3 was so amended as
to read:
"Commercial agents shall pay two hundred dollars annually. Every
person whose business it is, as agent, to offer for sale goods,
wares, or merchandise by sample, catalogue, or otherwise, shall be
regarded as a commercial agent."
Section 4 of the act is in these words:
"That every person liable for license tax who, failing to pay
the same within thirty days after the same has become due and
payable, for such neglect shall, in addition to the license tax
imposed, pay a fine or penalty of not less than five nor more than
fifty dollars, and a like fine or penalty for every subsequent
offense."
And then follows a proviso not material here.
A part of the act was repealed by Congress February 17, 1873, 17
Stat. 464. The twenty-third section, and clauses 20 and 35 of the
twenty-first section, and clause 16 of the 21 section, as amended,
were repealed and modified July 12, 1876, 19 Stat. 88, as were
also, on January 26, 1887, parts of clause 38 of section 21, as
amended, and of section 15.
Sections 1 and 18 of the Act of Congress of February 21, 1871,
entitled "An act to provide a government for the District of
Columbia," 16 Stat. 419, are as follows:
"SEC 1. That all that part of the territory of the United States
included within the limits of the District of Columbia be, and the
same is hereby, created into a government by the name of the
District of Columbia, by which name it is hereby constituted a body
corporate for municipal purposes, and may contract and be
contracted with, sue and be sued, plead and be impleaded, have a
seal, and exercise all other powers of a municipal corporation not
inconsistent with the Constitution and laws of the United States
and the provisions of this act."
"SEC. 18. That the legislative power of the District shall
Page 129 U. S. 144
extend to all rightful subjects of legislation within said
District, consistent with the Constitution of the United States and
the provisions of this act, subject nevertheless to all the
restrictions and limitations imposed upon states by the tenth
section of the first article of the Constitution of the United
States; but all acts of the legislative assembly shall at all times
be subject to repeal or modification by the Congress of the United
States, and nothing herein shall be construed to deprive Congress
of the power of legislation over said District in as ample manner
as if this law had not been enacted."
These sections are carried forward into the Act of Congress of
June 22, 1874, entitled
"An act to revise and consolidate the statutes of the United
States, general and permanent in their nature, relating to the
District of Columbia, in force on the first day of December, in the
year of our Lord one thousand eight hundred and seventy-three,"
as sections 2, 49, and 50.
Page 129 U. S. 147
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
It is a cardinal principle of our system of government that
local affairs shall be managed by local authorities and general
affairs by the central authority, and hence, while the rule is also
fundamental that the power to make laws cannot be delegated, the
creation of municipalities exercising local self-government has
never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as
the grant of the authority to prescribe local regulations,
according to immemorial practice, subject, of course, to the
interposition of the superior in cases of necessity.
Congress has express power "to exercise exclusive legislation in
all cases whatsoever" over the District of Columbia, thus
possessing the combined powers of a general and of a state
government in all cases where legislation is possible. But, as the
repository of the legislative power of the United States, Congress,
in creating the District of Columbia "a body corporate for
municipal purposes," could only authorize it to exercise municipal
powers, and this is all that Congress attempted to do.
The act of the legislative assembly under which Hennick was
convicted, imposed, as stated in its title, "a license on trades,
business, and professions practiced or carried on in the District
of Columbia," and required by clause three of section twenty-one,
among other persons in trade, commercial agents, whose business it
was to offer merchandise for sale by sample, to take out and pay
for such license. This provision was manifestly regarded as a
regulation of a purely municipal character, as is perfectly
obvious, upon the principle of
noscitur a sociis, if the
clause be taken, as it should be, in connection with the other
clauses and parts of the act. But
Page 129 U. S. 148
it is indistinguishable from that held void in
Robbins v.
Shelby Taxing District, 120 U. S. 489, and
Asher v. Texas, 128 U. S. 129, as
being a regulation of interstate commerce so far as applicable to
persons soliciting, as Hennick was, the sale of goods on behalf of
individuals or firms doing business outside the District.
The conclusions announced in the case of Robbins were that the
power granted to Congress to regulate commerce is necessarily
exclusive whenever the subjects of it are national or admit only of
one uniform system or plan of regulation throughout the country,
and in such case the failure of Congress to make express
regulations is equivalent to indicating its will that the subject
shall be left free; that in the matter of interstate commerce, the
United States are but one country, and are and must be subject to
one system of regulations, and not to a multitude of systems, and
that a state statute requiring persons soliciting the sale of goods
on behalf of individuals or firms doing business in another state
to pay license fees for permission to do so is, in the absence of
congressional action, a regulation of commerce in violation of the
Constitution. The business referred to is thus definitely assigned
to that class of subjects which calls for uniform rules and
national legislation, and is excluded from that class which can be
best regulated by rules and provisions suggested by the varying
circumstances of different localities, and limited in their
operation to such localities respectively.
Cooley v.
Board of Wardens, 12 How. 299;
Gilman v.
Philadelphia, 3 Wall. 713. It falls, therefore,
within the domain of the great, distinct, substantive power to
regulate commerce, the exercise of which cannot be treated as a
mere matter of local concern and committed to those immediately
interested in the affairs of a particular locality.
It is forcibly argued that it is beyond the power of Congress to
pass a law of the character in question solely for the District of
Columbia, because whenever Congress acts upon the subject, the
regulations it establishes must constitute a system applicable to
the whole country; but the disposition of this case calls for no
expression of opinion upon that point.
Page 129 U. S. 149
In our judgment, Congress, for the reasons given, could not have
delegated the power to enact the third clause of the twenty-first
section of the act of assembly, construed to include business
agents such as Hennick, and there is nothing in this record to
justify the assumption that it endeavored to do so, for the powers
granted to the District were municipal merely, and although by
several acts Congress repealed or modified parts of this particular
bylaw, these parts were separably operative, and such as were
within the scope of municipal action, so that this congressional
legislation cannot be resorted to as ratifying the objectionable
clause, irrespective of the inability to ratify that which could
not originally have been authorized.
The judgment of the Supreme Court of the District is
Affirmed.
MR. JUSTICE MILLER, dissenting.
I do not find myself able to agree with the Court in its
judgment in this case. The act of Congress creating a territorial
government for the District of Columbia declared that the
legislative power of the District should "extend to all rightful
subjects of legislation within said District," which undoubtedly
was intended to authorize the District to exercise the usual
municipal powers. The act of the legislative assembly of the
District under which Hennick was convicted imposed "a license on
trades, business, and professions, practiced or carried on in the
District of Columbia" and a penalty on all persons engaging in such
trades, business, or profession without obtaining that license. As
the Court says in its opinion, this was "manifestly regarded as a
regulation of a purely municipal character."
The taxing of persons engaged in the business of selling by
sample, commonly called "drummers," is one of this class, and the
only thing urged against the validity of this law is that it is a
regulation of interstate commerce, and therefore an exercise of a
power which rests exclusively in Congress. I pass the question,
which is a very important one, whether this act of the legislature
of the District of Columbia, being one exercised under the power
conferred on it by Congress, and
Page 129 U. S. 150
coming, as I think, strictly within the limit of the power thus
conferred, is not, so far as this question is concerned, sustained
by the authority of Congress itself, and is substantially the
action of that body.
The cases of
Robbins v. Shelby Taxing District,
120 U. S. 489, and
Asher v. Texas, 128 U. S. 129,
hold the regulations requiring drummers to be licensed to be
regulations of commerce, and invasions of the power conferred upon
Congress on that subject by the Constitution of the United States.
In those cases, I concurred in the judgment because, as applied to
commerce between citizens of one state and those of another state,
it was a regulation of interstate commerce, or, in the language of
the Constitution, of commerce "among the several states," being a
prosecution of a citizen of a state other than Tennessee, in the
first case, for selling goods without a license to citizens of
Tennessee, and in the other case to citizens of Texas.
But the constitutional provision is not that Congress shall have
power to regulate all commerce. It has been repeatedly held that
there is a commerce entirely within a state and among its own
citizens which Congress has no power to regulate. The language of
the constitutional provision points out three distinct classes of
cases in which Congress may regulate commerce, and no others. The
language is that "Congress shall have power . . . to regulate
commerce with foreign nations, and among the several states, and
with the Indian tribes."
Unless the act for which Hennick was prosecuted in this case was
commerce with a foreign nation among the several states or with an
Indian tribe, it is not an act over which the Congress of the
United States had any exclusive power of regulation. Commerce among
the several states, as was early held by this Court in
Gibbons v.
Ogden, 6 Wheat. 448, means commerce between
citizens of the several states, and had no reference to
transactions by a state, as such, with another state in their
corporate or public capacities. Indeed, it would be of very little
value if that was the limitation or the meaning to be placed upon
it. I take it for granted, therefore,
Page 129 U. S. 151
that its practical utility is in the power to regulate commerce
between the citizens of the different states.
Commerce between a citizen of Baltimore, which Hennick is
alleged to be in the prosecution in this case, and citizens of
Washington, or of the District of Columbia, is not commerce "among
the several states," and is not commerce between citizens of
different states, in any sense. Commerce by a citizen of one state,
in order to come within the constitutional provision, must be
commerce with a citizen of another state, and where one of the
parties is a citizen of a territory, or of the District of
Columbia, or of any other place out of a state of the union, it is
not commerce among the citizens of the several states.
As the license law under which Hennick was prosecuted made it
necessary for him to take out a license to do his business in the
City of Washington, or the District of Columbia, which was not a
state, nor a foreign nation, nor within the domain of an Indian
tribe, the act upon the subject does not infringe the Constitution
of the United States.
For these reasons, I dissent from the judgment of the Court.
