Ward v. Maryland, 79 U.S. 418 (1870)
U.S. Supreme CourtWard v. Maryland, 79 U.S. 12 Wall. 418 418 (1870)
Ward v. Maryland
79 U.S. (12 Wall.) 418
A statute of Maryland required all traders resident within the state to take out licenses and to pay therefor certain sums regulated by a sliding scale of from $12 to $150, according as their stock in trade might vary from $1,000 to more than $40,000. The statute also made it a penal offense in any person not being a permanent resident in the state to sell, offer for sale, or expose for sale, within certain limits in the state, any goods, wares, or merchandise whatever, other than agricultural products and articles manufactured in Maryland within the said limits either by card, sample, or other specimen or by written or printed trade list or catalogue, whether such person be the maker or manufacturer thereof or not, without first obtaining a license so to do, for which license (to be renewed annually) a sum of $303 was to be paid. Held That the statute imposed a discriminating tax upon nonresident traders trading in the limits mentioned, and that it was pro tanto repugnant to the federal Constitution and void.
The Constitution of the United States, in one place, thus ordains:
"ARTICLE IV. Sec. 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."
Also thus, in another:
"ARTICLE I. Sec. 8. The Congress shall have power to regulate commerce among the several states."
With these provisions in force as fundamental law, the State of Maryland passed two general laws regulating the subject of traders. [Footnote 1] One part of the enactment regulated traders resident within the state, and another sought to regulate
traders not so resident, but seeking to do business there, and both parts required the party trading or seeking to trade to take out and pay for a license.
These were the sections relating to
"TRADERS RESIDENT OF MARYLAND"
"§ 41. No person within this state other than the grower, maker, or manufacturer, shall barter or sell any goods, chattels, wares, or merchandise, without first obtaining a license in the manner herein prescribed."
"§ 42. When any person, body politic or corporate, shall propose to sell or barter anything mentioned in the preceding section except spirituous or fermented liquors, he shall apply to the clerk of the circuit court of the county in which he may reside for a license therefor."
"§ 43. Upon such application, the applicant shall state to the clerk, on oath, the amount of his stock of goods, generally kept on hand by him, or the concern in which he is engaged, at the principal season of sale."
"§ 44. If the amount of the applicant's stock in trade does not or will not exceed $1,000, the sum of $12 shall be demanded and received by said clerk from said applicant before granting the license."
"§ 45. If more than $1,000 and not more than $15,000, the sum of $15."
"§ 46. If more than 1,500 and not more than 2,500, the sum of 18."
"§ 47. If more than 2,500 and not more than 4,000, the sum of 22."
"§ 48. If more than 4,000 and not more than 6,000, the sum of 30."
"§ 49. If more than 6,000 and not more than 8,000, the sum of 40."
"§ 50. If more than 8,000 and not more than 10,000, the sum of 50."
"§ 51. If more than 10,000 and not more than 15,000, the sum of 65."
"§ 52. If more than 15,000 and not more than 20,000, the sum of 80."
"§ 53. If more than 20,000 and not more than 30,000, the sum of 100."
"§ 54. If more than 30,000 and not more than 40,000, the sum 125."
"§ 55. If more than 40,000 or over more than 40,000, the sum of 150."
These were the sections relating to
"TRADERS NOT RESIDENT OF MARYLAND"
"§ 37. No person, not being a permanent resident in this state, shall sell, offer for sale, or expose for sale, within the limits of the City of Baltimore, any goods, wares, or merchandise
whatever, other than agricultural products and articles manufactured in the State of Maryland, within the limits of the said city, either by card, sample, or other specimen, or by written or printed trade list or catalogue, whether such person be the maker or manufacturer thereof or not, without first obtaining a license so to do."
"§ 38. Such license shall be issued to the person or co-partnership applying for the same on the payment of $300, and shall run one year from date."
"§ 39. No person, whether a resident or not of the City of Baltimore, and licensed to sell therein, shall suffer or permit any person not a permanent resident of the State of Maryland, or the agent or representative of any person or persons not residents of the State of Maryland, and not in his regular employ or service, to sell any goods, wares, or merchandise by sample, card, or other specimen, or by written or printed trade list under his name or the name of his firm or partnership, or at the store, counting room, or warehouse in his occupation or used as his place of business."
"§ 40. Any person offending against either of the three last preceding sections shall be liable to indictment, and upon conviction shall be fined not less than $400 for each offense."
The reader will thus observe that the highest price which any trader resident within the state was ever called on to pay in order to trade there was $150, while every trader not so resident, who sought to trade within the state, was charged twice that sum.
In this state of constitutional and of statutory law, one Ward, a citizen of the United States and of New Jersey, resident in New Jersey, sold by sample horse harness within the limits of Baltimore without any license and contrary to the above-quoted statute of Maryland. He was accordingly, for the purpose of having the validity of the Maryland act judicially tested, indicted in the Criminal Court of Baltimore, the facts being agreed on. The indictment contained two counts, one for selling and the other for offering to sell by sample goods (to-wit, horse harness) other than agricultural products and articles manufactured in Maryland. The defense was that the statute of Maryland was unconstitutional
and void, the two clauses of the Constitution already quoted being relied on as those to which the Maryland statute was repugnant. The Criminal Court adjudged the statute valid and fined Ward $400. This judgment being affirmed in the Court of Appeals of Maryland, the case was now here for review.