Applegarth v. State , 89 Md. 140 ( 1899 )

The appellant was indicted in the Criminal Court of Baltimore City on the charge of having violated the provisions of the Act of 1894, ch. 380, entitled "An Act to repeal Article seventy-two of the Code of Public General Laws," and all sections and sub-sections thereunder, and to re-enact said Article with amendments. The indictment contains three counts, each of which charges the appellant with having violated secs. 66 and 67 of the Act in question. It will not be important to consider the first and second counts of the indictment. The appellant filed a special plea to the third count of the indictment, which plea the appellee demurred to and the Court sustained the demurrer. The parties then elected to go to trial before the Court on the third count under the plea of not guilty. The State, after it had given evidence tending to prove that the appellant was engaged in the business of packing and canning oysters for sale and transportation at Baltimore from the first of September, 1897, to the 25th of April, 1898, and that the said appellant had failed to pay the tax of one dollar per thousand bushels for each thousand bushels of oysters packed and canned by himself in excess of the amount named in the license issued to him, as stated in the third count of the indictment, and in pursuance of the said license issued to him. The appellant further offered evidence, tending to prove that the oysters, which were canned and packed by him, as testified to by the witness on the part of the State, were purchased by him in the State of Virginia, and shipped to him from that State by a citizen thereof; that said oysters were taken from the waters of the State of Virginia, and were not taken or caught from the waters of the State of Maryland, to which evidence the State objected, and the Court sustained the objection and refused to permit the said evidence to be offered.

The demurrer and the exception present the same question, to-wit: "Does the fact that the appellant bought the oysters in the State of Virginia and had them shipped to him from that State to the State of Maryland, exempt him from the payment of the license fee?" The appellant contends that the provisions of the Act of 1894 relate solely to the oyster industry of the State of Maryland, and further, that it was not the intention of the Legislature to tax the canning of oysters caught in other States, than by thisstatute, or to place a burden on the packer for which he did not receive a corresponding benefit for the protection and preservation of an article to be packed; and further, it is contended that such a construction would be unreasonable and would impose an unjust burden, and if the Legislature had so intended the tax to apply to other oysters than such as have been caught in Maryland waters, it would have said so in the words of the statute. But we fail to comprehend in what respect the Constitution has been violated by the provisions of this Act, unless it be true that every license issued to a merchant is unconstitutional because he must sell goods that were made in, and shipped from some other State. In other words, on whatever stock he purchased outside of the State he would not be required to pay any license.

To sanction the contention of the appellant would be to grant immunity to the citizens of the State of Virginia by releasing them from taking out certain licenses, which the citizens of Maryland are, under the Act of 1894, required to obtain. We know of no Act ever passed by the Legislature of this State which was intended to confer benefits upon other States, but which denied to this State equal benefits. MR. JUSTICE FIELD, delivering the opinion of the Court in the case of Webber v. Virginia,103 U.S. 350, says: "No one questions the general power of the State to require licenses for the various pursuits and occupations conducted within her limits, and to fix their amount as shechooses." And again, from the same case: "A State may require a license for the sale of sewing machines, although the machines are patented under the laws of the United States, where there is no discrimination against machines outside the State." MR. JUSTICE BOYD, delivering the opinion of this Court, in the case of State v. Applegarth, 81 Md., 296-7, says: "The appellees were indicted for engaging in the business of packing and canning, for sale and transporation, oysters taken in the waters of this State without obtaining from the State a license therefor. The prosecution is based on sections 66 and 67, Article 72 of the Code of Public General Laws, as amended by chapter 380 of the laws of 1894. It is contended on behalf of the appellees that these sections are: (1), in conflict with the Constitution of this State, because the license provided for is an arbitrary and unequal tax, contrary to the 15th Article of the Bill of Rights, and not a lawful exercise of the police power of the State; and (2), that they are a regulation of inter-state commerce in violation of the Constitution of the United States." * * * "The privilege of carrying on the business of packing and canning oysters is made by this law to depend upon the taking out of a license, and we do not think the provisions of the State Constitution looking to equality and uniformity in taxation are thereby violated. It is said in Tiedeman's Limitation of Police Power, 282, that `the most common objection raised to the enforcement of a license tax is that it offends the constitutional provision, which requires uniformity of taxation, since the determination of the sum that shall be required of each trade or occupation must necessarily, in some degree, be arbitrary, and the amount demanded more or less irregular. But the Courts have generally held that the constitutional requirement as to uniformity of taxation has no reference to taxation of occupation.' The right to require the payment of license fees for the privilege of carrying on business of different kinds has been recognized for many years in this State, and the license fees required to be paid have been fixed, in the discretion of the Legislature, according to circumstances and the character of the business." In McCready v. Virginia,94 U.S. 391, it was held that "A State can grant to its own citizens the exclusive use of lands covered by water for raising oysters, and may prohibit under a penalty, their use for such purpose, by citizens of other States." We fail to recognize the force of the appellant's contention to the effect that the Act of 1894 violates the provisions of the Federal Constitution in virtue of the fact that the Act in question here deals with Maryland oysters alone; it is further contended by the appellant that the decision of the Applegarth case, supra, does not apply to Virginia oysters.

It follows from what we have said that the judgment of the Court below must be affirmed with costs.

Judgment affirmed with costs.

(Decided March 14th, 1899.)