
    THE DISTRICT OF COLUMBIA VS. VIRGIL P. HUMASON.
    Criminal Law. —
    No. 10129.
    I. An act of the legislative assembly provides that commercial agents shall pay $200 annually for a license, and. that any person whose business it is as agent to offer for sale goods or merchandise by sample, catalogue, or otherwise, shall be regarded as a commercial agent; and that if he shall fail to pay the said license-tax before engaging in such business, he shall, in addition to the license-tax, pay a fine or penalty of not less than five nor more than fifty dollars for each offense : Held, The act was not repugnant to any constitutional provision, and is not in violation of the right of Congress to regulate commerce among the several States.
    II. The fact that the defendant is an officer of a State corporation, and that the goods offered by him for sale were of the manufacture of such corporation, and that he received no commission other than a regular salary, does not render the law inapplicable to the case.
    III. No discrimination is made by the act between citizens of the District and citizens of the States; it is not, therefore, liable to any constitutional objection.
    IV. The judgment against the defendant in such case is tho amount of the license-tax for one year, added to the fine imposed by the court.
    STATEMENT OE THE CASE.
    On the 14th day of May, A. D. 1874, an information was filed in the police court of the District of Columbia, charging the defendant with having engaged in the business of a commercial agent within the District of Columbia without first having obtained a license therefor. This prosecution was based upon an act of the late legislative assembly, approved August 23,1871, and amendments approved June 20,1872, the first section of which provides—
    “ 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.”
    Clause third of section 21 o? the same act provides as follows :
    “ Commercial agents shall pay two hundred dollars annually. Every person whose business it is as an agent to offer for sale goods, wares, or merchandise by sample, catalogue, or otherwise, shall be regarded as a commercial agent.”
    The penalty for violation of this law by engaging in business without license is provided for by section 4 of the same act, as follows:
    “ That every person liable for license-tax, who may fail to pay the same before engaging in the business for which the license may be required, shall, in addition to the license-tax imposed, pay a fine or penalty of not less than five nor more than fifty dollars for each offense, to be imposed and collected as provided in this act.”
    By section 2 of the amending act of 1872, jurisdiction is given to the police court.
    The defendant was adjudged guilty as informed against, and a fine of $250 was imposed upon him. An appeal was taken to the criminal court, and the case duly docketed. An agreed statement was then filed, and the cause coming on to be heard before Mr. Justice MacArthur, was by him certified to this court. The agreed statement is as follows :
    “It is agreed that defendant offered goods for sale in the District of Columbia by card, sample, or catalogue; that he had no license so to sell from the authorities of the District of Columbia; that he was the treasurer and one of the directors of the Humason & Beckley Manufacturing Company of New Britain, Connecticut; that the goods he so offered for sale were all the product of that company; and that he received no commission or other compensation for so selling other than regular salary. It is further admitted that the above-named Humason & Beckley Manufacturing Company is a joint-stock corporation, formed for the purpose of manufacturing, buying, selling, and dealing in all articles of hardware, which fully appears by the certified copy of the certificate of incorporation filed in this cause.”
    
      Birney & Birney, for the plaintiff, made the following points:
    I. No discrimination is made by the legislation here in question between citizens of the District of Columbia and citizens of the States.
    
      II. A commercial agent may have for his principal a citizen of the District, and the statute applies as well to the case where both agent and principal reside within the District as to cases where neither resides within its limits.
    III. The business to be carried on within the contemplation of the statute may be confined to places within the District or may extend to places beyond its limits.
    IV. The legislation in question is not in repugnance to the constitutional ^provision that the citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States. Paul vs. Virginia, 8 Wall., 168; see also Woodruff vs. Parham, ibid., 123; Case of the State Freight Tax, 15 Wall., 232; Case of the State Tax on Railway Cross Receipts, ibid, 284; Osborne vs. Mobile, 16 Wall., 479; and Railroad Company vs. Fuller, 17 Wall., 560.
    V. Nor is the statute here alleged to be an unconstitutional attempt to regulate either foreign commerce or interstate commerce. (See the same cases cited under point IV.)
    VI. The fact that the defendant is an officer of a corporation does not make the law inapplicable to his case. The director and treasurer, acting as an agent, is an agent. Agency does not depend on nomenclature for its legal character.
    VII. The manner in which the agent is compensated is indifferent, so far as the legal status of the agent as between him and other private persons or as between him and the public, is concerned.
    
      A. G. Riddle and Francis Miller, for defendant, made the following points:
    1st. The information charges the defendant with selling the the goods referred to on November 1,1873. The fine imposed upon him for so doing was $250, which is $200 in excess of the penalty set out in the act of assembly. This excess is sought to be justified by the words “ shall, in addition to the license-tax imposed, pay a fine or penalty of not less than $5 nor more than $50.’’ But by the. act of assembly the license for a commercial agent was to commence on the first of April, or, if after that date, from the first of the month in which it was taken out, and “payment shall be made for a proportionate ■amount.” (Act of assembly of August 23, 1871.) By this provision, the “ license-tax imposed” on the defendant on November 1, 1873, would have been $83.33, which, added to the maximum fine, would be 8133.33.
    2d. But the words,“in addition to license-tax imposed,” preclude the idea that the amount of the fine is to be arrived at by adding that tax to the fine. It is a tax, and not a fine or penalty. If a person is fined, he may have to take out a license to prosecute the business he has undertaken to pursue, but it is not the business of the police court to collect license-taxes, nor can the District compel a man to take out a license.
    If the view of the court below were correct, how often can the “license-tax imposed” be added to the fine in any one year ? Moreover, would not the fine of $250, if collected, go into the treasury of the District, and, therefore, the defendant could be sued by the District for the license-tax in addition to the fine thus increased.
    3d. But we contend further that the defendant does not come within the definition of a “commercial agent.” He is not a “ person whose business it is as agent to offer for sale goods, wares, or merchandise,” &c. He was not here on Ms .own business; he had no interest in it whatever. Whether he sold or not made no difference in his compensation. He was no more a “commercial agent” in any just meaning of those words than the horse that he might use to haul his goods around the city for sale. It was not his business, but the business of the Humason & Beckley Manufacturing Company.
    4th. No tax is imposed upon manufacturers in the District of Columbia, except in the single instance of manufacturers of gas. Any attempt to require the manufacturers of the States to take out a license for the sale of their goods within •the District, when none is required of resident manufacturers, would be a discrimination against the citizens of the State, .and would be void under article IV, section 2, of the Constitution of the United States. Ward vs. Maryland, 12 Wallace, 418.
    5th. Such a tax upon mere resident manufacturers would be in violation of the right of Congress to regulate commerce among the several States, conferred by art. I, sec. 8, of the Constitution of the United States. Brown vs. Maryland, 12 Wheat., 419; City of New York vs. Miln, 11 Pet., 192; Crandall vs. Nevada, 6 Wall., 35; Gilman vs. Philadelphia, 3 Wall., 730 ; State Freight Tax, 15 Wall., 232 ; Steamboat Co. vs. Livingston, 3 Cow., 736; 2 Story on Const., secs. 1065 to 1073.
   Mr. Justice Wylie

anounced the decision of the court tO' the following effect:

The question in this case is whether the legislative assembly can impose a fine upon parties coming into the District froih any of the States to sell goods or merchandise by sample, and without having taken out a license. The law imposing the fine is very clear, and its language is not to be mistaken, and we think it is applicable to this case. An argument is, however, presented as to whether the assembly had any right to enact the law, as it is claimed that it has a tendency to interfere with the trade and commerce between the District and the States; but we think it has not that effect, any more than any of the other licenses for which the law provides. A license is not required to be taken out only by persons coming here, but by all persons engaging in the same business, whether residents or non-residents. In this respect there is no discrimination. The local merchants and traders, carrying on this same kind of business, are required to pay for a license to contribute to the support of the government, and if persons from abroad can compete with them without the imposition of this tax, they are placed at a great disadvantage in their business. By subjecting all to the same tax, the rule of equality and fairness is arrived at. We, therefore, are of opinion that as the law imposes no . greater burden upon non-residents or their agents here than it does upon the residents engaged in the same business, it is liable to no constitutional objection. We think the judgment was also right in being for the amount of the license-tax for one year added to the fine imposed by the court.

Judgment affirmed.

Olin, J., dissenting.  