
    *Speer v. The Commonwealth.
    March Term, 1873,
    Richmond.
    I. Statute — Sale of Goods by Sample — Resident Merchant-Resident Citizen. — S. 101 of ch. 193. Sess. acts of 1870-71, p. 99, prohibits the sale of goods by sample, &c., by any person nota resident merchant, mechanic or manufacturer, and applies to citizens of the State who are not merchants, &c., as well as to citizens of other States; and the charge in the information that the party is not a resident merchant, &c., is not equivalent to the charge that he is not a resident citizen. The question therefore does not arise whether the statute is in violation of the constitution of the United States.
    
      2. Same — Same-Interpretation of “Resident.” — The ■word resident in the statute, in connection with the words merchant. &c„ does not import a personal residence; hnt refers to the place of business; and any person though a citizen of and living in another State, may take out a license to transact business as a merchant, &c., in the State, and the statute therefore is not unconstitutional.
    3- Same — Same—A Revenue Law. — The statute is not a regulation of commerce, but is simply a revenue law.
    This was an information in the Corporation court of the city of Alexandria filed in August 1872, against Alfred Speer, that on the 4th of August 1871, he, who was not at the time a resident merchant or manufacturer of this State, did by sample, card, description and other representation, offer to sell in the city aforesaid, wines, brandies, goods, wares, and merchandise, without having first obtained the license therefor required by law. Speer appeared and demurred to the information; but the *court overruled the demurrer. He then filed the plea of “not guilty;” and the cause coming on for trial at the October term of the court, the jury found him guilty, and fixed his fine at two hundred dollars. Whereupon Speer moved the court to set aside the verdict and grant him a new trial; but the court overruled the motion, and entered a judgment against him in accordance with the verdict. And upon his application to a judge of this court, a writ of error and supersedeas was awarded.
    C. 13. Stuart and Murbach, for the appellant.
    The Attorney General, for the Commonwealth.
   ANDHRSON, J.,

delivered the opinion of the court.

The information in this case charges that the plaintiff in error, who was not at the time a resident merchant or manufacturer of this State, did by sample, card, description, and other representation, offer to sell in the city of Alexandria, in the State of Virginia, wines, brandies, goods, wares and merchandise, without having obtained the license therefor required by law. There was a demurrer to the information which was overruled. Then issue was joined upon a plea of not guilty; and upon this issue the defendant was found guilty and fined $200. None of the facts are certified, and the only question raised by the record, is upon the, demurrer to the information. Do the facts which it avers constitute an •offence against the commonwealth, for which an information lies?

The offence is charged to have been committed by a person who was not a resident merchant, mechanic or manufacturer. And the specific license tax on every such person was $100. Sess. acts of 1870-71, chap. 193, $ 20, p. 278. And by section 148 of chap. 72, Ibid. p. 113, it is enacted that whenever a license shall be specially ^required by law, and whenever the General Assembly shall levy a license tax on any business, &c., it shall be unlawful to engage in such business, &c., without a license. The tax, it will be perceived, is levied on, and the license required to be obtained by every person who sells by sample, card, &c., who is not a resident merchant, mechanic or manufacturer. And the information alleges that the defendant, who was not at the time a resident merchant, &c., did by sample, card, &c., offer to sell, wines, &c., without having first obtained the license therefor required by law. And the last clause of section 101 of this act, (Sess. acts 1870-71, p. 99,) declares that any person who shall sell or offer to sell, in violation of this act (it is not limited to the section,) shall pay a fine of not less than $200 dollars, nor more than $500 for each offence. The court is therefore of opinion that the averments of the information clearly charge an offence against the statute.

But it is contended that the statute is unconstitutional and void, or that provision of section 101 thereof, which prohibits “any person or persons, not residents of the State, to sell or offer to sell,” &c., “by sample,” &c., “without first having obtained a license therefor,” because it is repugnant to Art. 1, § 8, of the constitution of the United States, which gives Congress the power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes:” and also to art. IV, § 2, which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

It seems to have been the intention of the legislature to have inhibited such sales by sample, &c., by any person who was not a resident merchant, mechanic or manufacturer, whether he was a resident citizen of this State or not. And the effect of this act would be the same if *the words, “not residents of the State,” were stricken from this clause of section 101. But the court is of opinion that the question as to the constitutionality of this clause in the statute, is not raised by the pleadings in the record. It is no where averred in the information, or otherwise shown in the record, that the ifiaintiff in error was not a resident citizen of Virginia, and that this prosecution was instituted against him as such non-resident. It is averred that he is not a resident merchant, &c. But that is not tantamount to an averment that he was not a resident citizen; Tor he might have been a resident citizen, though not a resident merchant, &c. And whether he was or was not a resident citizen of Virginia, he was prohibited from selling or offering to sell by sample, without license, unless he was a resident merchant, &c., and was alike punishable for the infraction, whether a resident citizen or not. But even if this were not so, and this provision. of section 101 of the act aforesaid, was unconstitutional, it does not appear upon the record, that the plaintiff in error has cause to complain of it, or that he has been aggrieved by the decision, in as much as it does not appear from the record that he was not a resident citizen of Virginia. And it is well settled that a statute must be assumed to be constitutional and valid, “until some one complains, whose rights it invades,” as held by this court in the recent cases of Wright, Sheriff, &c., v. Smith, and Antoni v. Wright, Sheriff, &c., 22 Gratt. 833 ; citing Cooly on Constitutional limitations, p. 1634.

But the appellant states in his petition that he was not a resident citizen of Virginia. Taking the fact to be a.s stated, and that it so appeared from the information, the court is of opinion, that there was no error in the judgment of the court below overruling the demurrer, upon the ground that the act of Assembly under which *the plaintiff in error was prosecuted is not in conflict with the constitution of the United States. Upon a fair construction of the said act, there is no discrimination in favor of a citizen of this State. The word “residents,” as used in connection with the words “merchant, mechanic or manufacturer,” was not intended to import a personal residence, but only the ‘ ‘place of business. ’ ’ And this we think is implied by the phraseology itself; but is -more clearly shown by section 147 of this same chapter, under the head of “licenses: to whom granted;” which provides that “A license may be granted to any citizen of this State; to any person entitled to the privileges and immunities of a citizen thereof; (which embraces the citizens of any of the United States,) to any person residing in the State; to any firm or company having a place of business in the State, and doing business thereat; to any corporation created by this State, or any of the United States,” &c.; so that a citizen of any of the United States has the same privilege of obtaining a license under this act, that a citizen of this State has; and as we have seen, is liable only to the same penalty that a citizen of the State is liable to, for selling or offering to sell by sample, without license. It is also evident that the act aforesaid is purely a revenue law, and not designed to regulate commerce; and is plainly not in conflict with the clause of the Federal constitution, which invests Congress with power “to regulate commerce with foreign nations, and among the several States and with the Indian tribes.” It can not be perceived how a tax upon business, which does not discriminate as to the residence or citizenship of the person, who is engaged in the business and subject to the tax, can be a regulation of commerce. The court is of opinion, therefore, that the act aforesaid is not unconstitutional, and that *there is no error in the judgment of the court below overruling the demurrer, and that the same be affirmed.

Judgment affirmed.  