
    Re William J. Hennick.
    Crim. Dock.
    16,625.
    Decided May 9, 1887.
    Justices Hagker, Cox, Jases and MerrtCk sitting.
    'The act Of the late Legislative Assembly of 'the District of Columbia, imposing a license tax upon commercial agents, or drummers, Whose business it is, as agents for non-resident manufacturers or wholesale dealers, to offer merchandise for sale, is unconstitutional and void as a restriction upon interstate commerce.
    Habeas Corpus. The petitioner was arrested and convicted in the Police Court of this District for a violation of •section 21 of the Act of the Legislative Assembly affirmed August 23, 1871, which is as follows;
    Sec. 21. And be it further enacted, That a licence tax •shall be and hereby is, imposed as follows, that is to say:
    “ First, Apothecaries shall pay, etc., etc., ****%.
    “ Second, Auctioneers shall pay, etc., etc., * * * * *.
    “ Third, Commercial Agents shall pay $250-. Every person residing in the District of Columbia, whose business it is, as agent for non-resident manufacturers or wholesale dealers, to offer for sale merchandise, shall be regarded as •a commercial agent.” Acts, Sess. 1, p. 93.
    After his conviction the petitioner sued out this writ ■of habeas corpus, the hearing upon which Was certified by the justice holding the criminal court to the general term, to be there heard in the first instance.
    Francis M. Darby, Francis Miller and G-uion Miller for petitioner:
    The validity of this license was in question in Humasen’s Case, 2 Mac Arthur, 158. It was contended that the law was illegal, as to commercial agents, because it was in effect an attempt to regulate commerce, and therefore, unconstitutional ; but the court held the contrary. This decision, so far as it declares that the act is not a regulation of commerce, has been overruled by the Supreme Court of the United States in the case of Robbins v. Taxing District of Shelby Co., 20 U. S., 489; S. O., 1 Interstate Com. Rep., 45.
    This would seem to be conclusive in this ease.
    But it is claimed that this law was passed by the Legislative Assembly, by the authority of Congress, which has exclusive legislative power over this District. Cohens vs. Va.r 6 Wheat., 441.
    But this court has decided that the Legislative Assembly had only municipal power of legislation ; that it could not legislate on general subjects; and further that Congress could not give it power to do so. Roach v. Van Riswick and Cooper vs. Dist. Col., 4 Mac Arthur, 171, 250; Dist. Col. vs. Waggaman, 4 Mackey, 333; sec. 93, R. S. D. C. j Dunphy vs. Klienschmidt, 11 Wall., 610.
    It is certain, in view of the late decision of the United States- Supreme Court that such a law is a regulation of interstate commerce,, that Congress could not delegate to a mere municipal body its constitutional power over a great national interstate question.
    As Congress could not clothe the Legislative Assembly with this power, its action in passing the License Law was utterly void; and that law cannot gain any validity from the tacit acquiescence of Congress.
    The rule of “ratification” is laid down in the case of Mattingly vs. Dist. Col., 97 U. S., 687.
    It is contended that the fact that Congress has amended this law by repealing some of its. provisions has given it the same effect as if it had been passed by Congress itself.
    But the Legislative Assembly by the very terms of the organic Act could not pass any law that the legislature of the State could not. Can it be successfully' contended that if, in. disobedience of the restriction thus laid upon it, it attempted to exercise the highest constitutional function of Congress itself, the silence of Congress, or the repeal of some purely municipal regulations, is to be construed as a recognition and validation of this assumption of power? Roach vs. Yan Riswick, 4 Mac Arthur, 171.
    But the recent decision of the Supreme Court of the United States in the Tennessee case has conclusively settled that this law is, in effect, a regulation of commerce between the States; for in this connection, 'as in the case of the constitutional provision as to direct taxes, the District of Columbia and the Territories must be included. Lough-borough vs. Blake, 5 Wheat., 319.
    At least it is an attempt to regulate commerce between the District of Columbia, and (in the case at bar) the State of Maryland. It reaches out and affects the interests of that State, and is in effect an exercise of the national constitutional power of Congress to regulate commerce, and not of the exclusive power of local legislation over the District.
    If it is an exercise of this national constitutional power, it must be subject to all the restrictions which the constitution has imposed upon ’Congress. It must therefore be Uniform. Either this regulation of commerce must be impartially applied to every man who engages in the business of a drummer, or it cannot be enforced against anyone.
    The language of the supreme court on this subject, emphatic and oft repeated as it has been, is but an expansion of that of the constitution itself.
    Article 1, section 8, clause 1, says: " All duties, imposts and excises shall he uniform throughout the United States.”
    Chief 3ustice Marshall, 5 Wheat., 319, says: “ The power, then, to lay and collect duties, imposts and excises, may be exercised and must be exercised throughout 'the United States. Does this term designate the whole or any particular portion of the American Empire? Certainly this Question can admit of but one answer. It is the name given to our great Republic, which is composed of States and Territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties and excises, should be observed in one than in the other. Since, then, the power to lay and collect taxes, * * * is obviously coextensive with the power to lay and collect duties, imposts and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also-extends throughout the- United States.”
    Clause 6 of the same section provides that “ No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.’ See Passenger Cases, 7 How., 405; Gibbons vs. Ogden, 9> Wheat., 191.
    Now if this License Law does give or may give the city of Baltimore any preference over the city of Washington, or the contrary, it is in violation of this clause of the constitution.
    We contend therefore that even if Congress had formally passed this law, and it had been regularly approved by the President, with all the forms prescribed for the enactment of laws of the United States, it would still be void, because of its violation of the fundamental requirement of all such legislation, to wit; that of uniformity throughout the limits of the country. Exchange Bank of Columbus vs. Hines, 3 Ohio St,, 1; cited in Gilman vs. Sheboygan, 2 Black, 510. For this license tax is a tax on the articles to be sold by the drummer. Brown vs. Md,, 12 Wheat., 444, 448; Cook-vs. Pa., 97 U. S., 566; License Tax Cases, 5 Wall., 462; Welton vs. Mo., 91 U. S., 275.
    Judge Tucker thought thatduties” as used in the constitution, “ were probably intended to comprehend erevy species of tax or contribution not included in the ordinary-terms ‘taxes and excises’.” Cited in Pacific Ins. Co. vs. Soule, 7 Wall., 433 ; Cooley, Const. Law, p. 494.
    Direct taxes must be laid by the rule of apportionment; all others by the rule of uniformity. Yeazie Bank os. Fenno, 8 Wall., 533; Scholey vs. Bew, 23 Wall., 331.
    In Ward vs. Md., 12 Wall., 418, Mr. Justice Bradley foreshadows the recent decision in the Tennessee case.
    “ It will not be denied that that portion of commerce with foreign countries and between the States which consists of the transportation and exchange of commodities is of national importance, and admits and requires uniformity of regulation.” Welton vs. Mo., 91 U. S., 215 ; cited and approved in Tier nan vs. Binker, 102 U. S., 128.
    In respect of commerce between the States, which consists in the transportation, purchase, sale and exchange of commodities, there can of necessity be only one system or plan of regulations; and that Congress alone can prescribe. Mobile Co. vs. Kimball, 102 U. S., 691; Cooley vs. Board of Wardens, 12 How., 299; Gloucester Ferry Co. vs. Pennsylvania, 114 U. S., 196; Brown vs. Houston, 114 U. S., 622; Walling vs. Mich., 116 U. S., 446; Pickard vs. Pullman, etc., Car Co., Ill U. S., 34.
    But suppose this tax is levied by Congress as the exclusive legislative power in the District of Columbia for the support of the government of the District of Columbia, it is still a tax on the commerce of the States with the District of Columbia, and subjects that commerce to burdens to support the local expenses of the District of Columbia. Can Congress compel the States to do this ? Cooley, Const. Law, p. 49m.
    We submit that the recent decision of the supreme court is universal in its operation and cuts up by the roots all local regulation of commerce; that it declares that requiring a license for drummers is a regulation of commerce; that therefore such license can only be required by Congress ; and that Congress can only exercise its power to regulate commerce by the exercise of its constitutional powers so to do, under the constitutional restriction that the operation of its laws shall be uniform throughout the limits of the United States.
    
      Henry E. Davis, for the District:
    I. The law is, in effect, the law of Congress.
    The power of the Legislative Assembly, which emanated from Congress, extended “ to all rightful subjects of legislation within the District, consistent with the constitution of the United States * * * subject to all the restrictions and limitation imposed upon States by the tenth section of the first article of the constitution of the United States ;" and all Acts of the Assembly were “subject to repeal or modification by the Congress of the United States.” E. S, D. C.,. secs. 49, 50.
    The extent of the power thus conferred upon the Legislative Assembly w.as considered by this court in Roach vs. Yan Riswick and Cooper vs. Dist. CoL, 4 Mac A., Ill, 250 ; and in Dist. Col. vs. Waggaman, 4 Mackey, 328.
    In the last mentioned case the very License Act under consideration was held as within the power; and in Dist, Col. vs. Oyster, 4 Mackey, 285, the Act was administered by this court without any question or expression of doubt as to its being properly within the power granted and properly gramtable by Congress to the Assembly.
    The Act having, then, been within the power of the Assembly to pass, it was in full force and virtue from its-passage, unless repealed or modified by Congress.
    As was said by this court in Roach vs-: Yan Riswick, the1- “ reluctance on the part of bench and bar to recognize legislation of the late government as valid, * * * has sometimes sought its excuse in the want of positive confirmation by Congress of the legislation in question. This, however, is a very unsatisfactory foundatian for it. The organic act, * *• * which established the District government, nowhere contains an intimation that the acts of the new government are to be inoperative until or unless confirmed by Congress; butt, on the contrary, by the1 strongest imputation,, excludes such idea. The fiftieth section [of the revision} declares that all acts of the legislative assembly shall ajt all times be subject to-repeal or modification by the Congress of the United States. Until repealed or modified, the clear implication is that they are to operateproprio vigore. * * * It is plain to us that as far as Congress could confer the power of original and independent legislation, needing no confirmation, but complete and operative in itself, it has done so by the act in question.”
    The effect of this is that the legislation in question, being that of a duly authorized and qualified agent of Congress in the government of the District of Columbia, is that of Congress itself. And if that be not so, we have a distinct adoption by Congress of this legislation in the several Acts of February IT, 18T3, (IT Stat. at L., 464), July 12, 18T6, (sec. 19, 19 Stat. at L., 88), and January 28, 188T, in part amending and in part repealing the act of the assembly ; whereby, by the clearest implication, the rest of the act is adopted.
    II. The constitutional question.
    The question raised by the petitioner is supposed to find support in article I, sec. 8, of the Constitution of the United States, which provides that “ The Congress shall have power to lay and collect taxes, duties, imposts, and excises * * * bat all duties, imposts, and excises shall be uniform throughout the United States,” (clause 1,) and that “The Congress shall have power * * * to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes ” (clause 3) ; and in section 9 of the same article, which declares that “No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another ” (clause 6).
    As to the first of these provisions, it is enough to say that the license tax in question is not a duty, an impost, or an excise, and is not, therefore, within that provision requiring uniformity throughout the United States. As to the last, (sec. 9, clause 6,) the license law for the District of Columbia gives no preference to the ports of any State, or even of the District, over those of any other State; and it is not easily conceived how that clause can be thought to have any relevancy to the subject in hand.
    A question seems, however, to be presented by the remaining of the three clauses above enumerated, viz. I whether, as a regulation of commerce, the license law for the District is invalid, as obnoxious to the Constitution of the United States?
    1. It is not doubted that the law regulates commerce, in the sense of the Constitution. The opinion of the Supreme Court of the United States in the recent case of Robbins vs. Taxing District of Shelby Co.,. 120 U, S.,489 ; S. C. 1 Interstate Com. Rep., 45, closes the door to any possible contention on that head.
    ■ 2. It is equally certain that, as above pointed out, the law is, in effect, an enactment by Congress.
    3. The question, then, becomes, has Congress power under the Constitution to pass such a law ?
    If not, it must be either because such power is not granted, or is denied, to Congress by the Constitution.
    The power is undoubtedly granted in terms by article I, sec. &, clause l1?, whereby Congress is given power to exercise exclusive legislation in all cases whatsoever over the1 District of Columbia. As was said by Marshall, Oh. J., in Loughborough vs, Blake, 5 Wheat., 324. “ On the extent-of these terms, according to the common understanding of mankind, there- can be no difference of opinion.”
    But it is contended that this- broad grant is limited by the restrictions which the Constitution has imposed upon Congress. Granting this, what restriction of the Constitution upon the power of Congress affects-the- question under' consideration? Petitioner’s counsel cite but two such restrictions as of supposed applicability — -that requiring uniformity of duties, imposts and excises, and that forbidding' preference to the ports-of one State over another; both of which have been noticed above.
    What limitations, then, exist on the power of Congress-in regulating commerce ? Seemingly none, except those' distinctly prescribed by the Constitution, which “ are expressed in plain terms,” and none of which applies to the oase in hand.
    The question thus occurs; Does the regulation of commerce complained of emanate from Congress ? That it ■does is shown above, “ Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on any given subject.” A fortiori may it adopt the legislation of its own agency, in the exercise of one of its Undoubted powers. The adoption by Congress of any given legislation “ gives it the same validity as if its provisions had been specifically made by Congress.” Gibbons vs. Ogden, 9 Weeat., 196, 207.
    4. The recent decision of the Supreme Court of the United States (Robbins us. Taxing District, supra), in reality does not affect the question under consideration.
    In that case it was held only that a given law of the State of Tennesse was invalid, as dealing with the sulyect of commerce, which, by the Constitution, was committed to Congress. The power of Congress, its extent and its limitations in the premises, were not under consideration.
    5th. The petitioner has no right to complain of the District license law. He is not a member of a foreign nation, nor of an Indian tribe, and the law does not affect commerce “ among the Several States.”
    The District of Columbia is not a State, in the meaning of the Constitution, Hepburn vs. Ellzey, 2 Cranch, 445 ; New Orleans vs. Winter, 1 Wheat., 91; Scott us. Jones, 5 How., 377; Barney us. Baltimore, 8 Wall., 287; Baltimore, ote., R. R. Co. us. Harris, 12 Wall,, 86.
    In respect to regulating commerce, there is in the Constitution no prohibition upon either Congress or any State to discriminate for or against the District, as between it and ■such or any State. “ The sole restraints ” against abuse in this respect are those mentioned by Chief Justice Marshall in Gibbons us. Ogden ; and disregard of those restraint, can only be reached by counter legislation ; they cannot be affected 'by any action of the judiciary,
   Mr. Justice Merrick

delivered the opinion of the court:

I have been assigned to announce the opinion of the court in the case of William J. Hennick, certified to this court, from the criminal court.

The petitioner, as it appears by his petition, was convicted before the police court upon an information against him as a commercial agent, or drummer, so-called. The information states :

“That on the 14th day of April, 1887, at the city of Washington he 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 dioso ; contrary to the provisions of an act of the legislative assembly.”

Prior to the decision of the Supreme Court of the United States' at its present term, in the case of Robbins vs. Taxing District of Shelby County, 120 U. S., 489 ; S. C. 1 Interstate Com. Rep., 45, there had been very great diversity of opinion throughout the United States as to the power of a State to tax commercial agents who were transacting business by selling goods by sample or by soliciting contracts for sale of goods owned by persons in other States than where the solicitation or sale was made. That diversity of opinion not only pervaded the legal profession, but, as it appears by this, recent decision of the supreme court, it still existed in that tribunal; so that there is a complete.justification for those who entertained that opinion, and who urged the liability under such laws.

By justification I mean justification up to the time that decision was pronounced. That decision being pronounced, however, it is obligatory upon all other tribunals and upon citizens of the United States.. It is not obligatory upon the supreme court itself, as a final adjudication, because it is liable to be reviewed by it and reversed by it if, in its better judgment hereafter, it should entertain a different opinion from that which has been expressed by itself, because it is a well defined rule, announced by that court, that in constitutional questions the rule of stare decisis is not obligatory upon itself.' Constitutional questions are always open for revision by the supreme court itself, notwithstanding there there may have been one or more decisions upon the subject. But, while open for revision by that court such decisions, until reversed by it, are obligatory upon all other tribunals,-and demand implicit obedience from all citizens throughout this land.

In the case of Robbins vs. Shelby County it was decided that a state law imposing a tax upon commercial agents who solicited contracts for sale of property owned by citizens-of another State was beyond the power of the State to enact or enforce; that it was in contravention of the constitutional provision that Congress should have the exclusive power of regulating commerce between the States, a tax upon commercial agents or drummers of one State soliciting business within another State being a tax upon interstate commerce.

It was said in argument that that decision did not cover the whole proposition, that it was limited only to discriminations which were made by the Statute of Tennessee as against the citizens of other States, and that if the law had been equally as applicable to all travelers the decision would not cover it. But an inspection of that decision shows this to be a mistaken view of the subject. The court grasped the whole matter, discussed the whole matter fully, and decided the precise point as law, as will bo seen from the following quotation from the decision:

“Butto tax the sale of such goods, or the offer to sell them, before they are brought into the State, is a very different thing, and seems to us clearly a tax-on interstate ■commerce itself. It is strongly urged, as if it were a material point in the case, th$t no discrimination is made between domestic and foreign drummers, — those of Tennessee and those of other -States, — that are all taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the State. This was decided in the ease of State Freight Tax Cases, 15 Wall., 232. The negotiation of sales of goods which are in anothor State, for thepurpose of introducing them into the State in which the negotiation is made is interstate commerce. A New Orleans merchant cannot be taxed there for ordering goods from London or New York, because in the one case it is an act of foreign, and in the other of interstate commerce, both of which are subject to regulation.by Congress alone.”

Thus it will be seen that it does not put the decision at all upon the question of discrimination between drummers within the State and drummers outside the State; but it says that no law which imposes upon the person soliciting sales for merchants outside of the State is admissible, because that is a regulation of interstate commerce.

In connection with that decision it is well to read an extract from the opinion of the Supreme Court of the United States in the case of Walling v. Michigan, in 116 U. S., 456, which is as follows :

“ The subjects indeed upon which Congress can act under this power are of infinite variety, requiring for their successful management different plans or modes of treatment. Some of them are national in their character, and admit and require uniformity of regulation, affecting alike all the States; others are local, or are mere aids to commerce, and can only be properly regulated by provisions adapted to their special circumstances and localities. Of the former class may be mentioned all that portion of commerce with foreign countries or between the States which consists in the transportation, purchase, sale and exchange of commodities. Here there can of necessity be only one system or plan of regulation, and that Congress alone can prescribe. Its nonaction in such cases, with respect to any particular commodity or mode of transportation, is a declaration of its purpose that the commerce in that commodity or by that means of transportation shall be free. There would others wise be no security against conflicting regulations of different States, each discriminating in favor of its own products and citizens, and against the products and citizens of other States. And it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign nations and among the States was to insure uniformity of regulation against conflicting and discriminating State legislation.”

And further down on page 457 [695] it is said:

“And after an examination of the causes which led to the adoption of the Federal Constitution, one of the principal of which was the necessity for the regulation of commerce and the laying of imposts and duties by a single government, the court say: ‘But whatever may be the motive for the tax, whether revenue, restriction, retaliation or protection of domestic manufactures, it is equally a regulation of commerce, and in effect an exercise of the power of laying duties on imports; and its exercise by the States is entirely at war with the spirit of the Constitution, and would render vain and nugatorj the power granted to Congress in relation to those subjects. Can any power more destructive to the union and harmony of the States be exercised than that of imposing discriminating taxes or duties on imports from other States P Whatever may be the motive for such taxes, they cannot fail to beget irritation and lead to retaliation ; and it is not difficult to foresee that an indulgence in such a course of legislation must inflame and produce a state of feeling that would seek its gratification in any measures regardless of the consequences/

Such is the declaration by the Supreme Court of the United States, of the spirit and scope of these constitutional provisions ; that they are necessary to the harmony and repose of the States; that they are necessary to the equal justice and equal privileges of the citizens of all the States of this Union; that they cannot be restricted at all; and that whatever rule is made with reference to them must be a uniform rule by the Congress of the United States acting as the National Legislature, regulating and controlling the commerce of the entire domain of the United States, with a view to do equal justice between all the parts of the country and to take away any possibility of prejudice or any suggestion of injustice or discrimination by one as against. another. That being so, it is manifest that any regulation upon this subject must be a regulation by Congress, in its capacity as the National Legislature.

Now, could Congress, if it had been so disposed, have delegated to the legislative assembly of this District the power to pass any such law? That is not an open question in this court. In- the case of The District vs. Waggaman, 4 Mackey, 333, this court said:

“In Roach vs. Van Riswick, 7 Wash. Law Rep,, 496, this-court held that the very broad terms in which the organic-act of ISIO granted legislative powers to the legislative-assembly had the effect to clothe that body with only such powers as might be given to a municipal corporation, and that it was not competent for Congress to-delegate the larger powers- o-f general legislation which it had itself received from the Constitution.”

We have already shown by these extracts that this subject matter belongs to the larger power of general legislation — belongs to Congress as the legislature- of the Nation. It could not, therefore-, within- this-announcement, delegate-any such part of its general legislative power to a municipal legislative body. It is- altogether outside the- scope of a-municipal body to legislate on this subject.

It would be marvelous indeed if, when the Constitution-strips all the States of this- Union of power to legislate on this subject, it could be pretended tha-t a municipal body could he clothed with any such faculty. If a State cannot do it, how can a body inferior to a- State do it? How can it be said to be within the power of a municipal corporation, when it is not within the power of a sovereign State, to legislate upon this subject matter? It would seem sufficient to stop at this point.

But it has been said here in argument that the Congress of the United States- having the- exclusive legislative- power of this District of Columbia, there is no restriction upon its capacity to act as such legislature. If the question were before the court in that aspect, it would not be difficult to say that it is a proposition that cannot be entertained by any who regard the comprehensive power of the Constitution, the object for which it was formed, or the purposes for which the District of Columbia was dedicated to national uses, to maintain that a body may be established here in legislative form, in antagonism to the rights of the various States of this Union.

This community is not even a State. It is an organized body to be legislated over by Congress alone. This District has surrendered its right of representation, and that representation is vested in Congress; but still it is vested in Congress as the National Legislature, and it is to be exercised by Congress in subordination to the principles of the Constitution of the United States. The argument, pushed to its extreme, would simply be this: Congress is without •constitutional restraint as to this District; the people are helpless, and not under the sanctions or protection of the Constitution of the United States at all; the United States has here a foreign territory in which it can legislate in antagonism to the interests of the States and in opposition to the policy which prevails in the Constitution, obligatory ■upon the States in their intercourse one with another to do equal and exact justice, one as to the other and each as to all. Such an argument cannot have any sanction at the hands of this court. This District is set aside and dedicated to the uses of the Nation, and if there be anywhere on the face of the earth a locality where no discrimination should he made as against the rights of any of the States or any •citizens of the United States, it should be upon this soil where all are equal, on which each citizen has an equal right and in which each State has an equal right, as regards all the other States and as regards the United States itself. This territory is dedicated simply as a temple of justice, as a temple where the liberties of the Nation are to be sacredly preserved; and it is for that purpose that it should be exempt from hostile control or the possibility of antagonism with the purposes of the Union. Congress was vested with the power of exclusive legislation for this District, but not at all for the purpose of enabling it to legislate in any manner in hostility to the rights of any of the States of the Union.

Can it be supposed for an instant that any of the States would have ceded to the Government of the United States a district for the seat of its government in which hostile legislation should be exercised towards the interests of the citizens of those States or the citizens of their sister States? We cannot suppose such a thing possible. We cannot suppose that when the Congress was vested with power to legislate over this District it was clothed with any' power to act as such legislature in hostility to the rights of the States or to do anything regarding the interests of the citizens of one State which any State of the Union could not do with regard to the citizens of any other State. We are subject to the Constitution of the United States. Here, if anywhere, the Constitution should be venerated, and the most sedulous regard should be had for each and all of its provisions, and we should rejoice that we are under its provisions ; we should rejoice that we are under its protection; we should rejoice that we are set apart for the purpose of ministering at the temple of justice, the temple of “Equality of Laws ” which has been established in our midst.

It seems impossible, therefore, to argue from the fact that Congress has exclusive legislation- over this District — that it has the power of the tyrant through this District over the States of the Union. The whole idea is inconsistent with the spirit of out institutions, utterly inconsistent with the- object for which the Constitution was formed, and for which this district of country was set apart for the uses of the general government. Therefore, even if Congress had undertaken, with regard to this District, in its general capacity as the legislature for the District, to pass such a law, it would have been outside the power of congress so to do; because,, as a National Legislature, it can only legislate under the commercial power upon the principle of uniformity, which is to pass laws equally operative upon any, every and all parts of the Union; and therefore any discrimination in favor of this community would be in violation of the spirit, if not the letter, of the Constitution of the United States.

But we need not go that far for the purposes of this case. It was only necessary to speak of it for the purpose of repelling the argument, and making it be seen how we regard the relations of this community to the legislative power of Congress and to the several States of the Union. It is enough for the purposes of this cause to say that the delegated power to the legislative, assembly of this 'District was the delegation only of municipal power, and that any attempt to legislate in this respect is ultra vires a municipality as it is ultra vires the power of a State of this Union.

For these reasons the court is of opinion that the prosecution was without authority; that so far as this law operates on this class of cases it is null and void, and that the prisoner must be discharged from custody.

But it is necessary to add that this decision on this branch of the law is not at all inconsistent with the decision that was made in the Case of Waggaman, where it was held that the Legislative Assembly was empowered to impose a license tax upon people doing business within the District of Columbia. All occupations which are limited to the District of Columbia are subject to the taxing power. That is what was held in that case, and there is nothing in this case at all inconsistent with it. If this party had taken out a license for the District, for the purpose of soliciting business within the District, for sales by people within the District, he might have been subject, and would have been subject, to the license law. But upon the face of this information it appears affirmatively that his exclusive business was to act as the agent of citizens of ■other States, soliciting contracts of sale for goods within those States, thereafter to be brought under the dominion, and within the control of the taxing power of the District. Therefore, there is no inconsistency between the two decisions. They are entirely harmonious, and there can be no difficulty in maintaining that in the aspect in which this case is presented, it is directly in the face of the decision in Bobbins vs. Shelby County, directly in opposition to the whole current of decisions upon the commercial power of the United States as expounded by the Supreme Court of the United States, and cannot be permitted to stand as law.

Mr. Biddle: If I apprehend this decision correctly, it leaves the law to be enforced against the citizens of the District.

Mr. Justice Merrick: Unquestionably.

Mr. Biddle: The license law can be enforced against the citizens of the District ?

Mr. Justice Merrick: Against citizens of the District who are soliciting sales for people within the District. But a citizen within the District who is employed as an agent of a citizen of another State, for the purpose of selling the goods of that citizen of the other State, cannot be restrained from so doing by the Legislative Assembly.

Mr. Biddle: I quite apprehend that.

Mr. Justice Merrick: And further than that, I will say that if his business had heen to solicit business as a drummer of the District, and he had mingled with it the business of the people of a State, he would be obnoxious to the law, not for soliciting business for citizens of States, but as acting as a drummer generally. But here, the information says that he is charged with doing exclusively the business of a commercial agent, soliciting and selling his goods for citizens of other States. That is the exclusive business with which he is charged, and therefore it may well stand with the other matter about which the counsel has made the inquiry.  