Jamart, a constable of the city of Baltimore, to restrain the collection by them of a tax or charge of two cents per bushel upon certain quantities of oysters in the shell, bought by said plaintiffs at their respective factories for the packing of oysters in Baltimore City, during the oyster season of 1910 and 1911, and prior to December 10, 1910, which tax or charge was imposed by chapter 735 of the Acts of 1910. Subsequently, J. Langrall & Co., a corporation, the C. L. Applegrath Company, a corporation, and William H. Killian, trading as W. H. Killian & Co., were upon their respective petitions, made parties plaintiffs, and prayed for similar injunctions upon like grounds, they being oyster packers in like condition as the original plaintiffs, and preliminary injunctions were accordingly granted to the original plaintiffs. The bill alleged that the plaintiffs were each oyster packers in Baltimore City, and large buyers of oysters in the shell taken from oyster beds located within the states of Maryland, Virginia, and New Jersey, and brought therefrom in vessels and cars to said factories. The bill then set out the material provisions of chapter 735 of 1910 as follows: Chapter 735 of the Acts of the General Assembly of Maryland, passed at the session of 1910, entitled "An act to increase the productivity of the natural oyster beds or bars of the state and for that purpose to repeal section 69 of article 72 of the Code of Public General Laws and to re-enact said section with amendments and to add to said article a new section, to come in after section 69, and to be known as section 69A. And to add five other new sections to said article to come in after section 119, and to be known as sections 120, 121, 122, 123 and 124 respectively," provide in part as follows: "Sec. 69. It shall be the duty of the commander of the state fishery force, at the commencement of or during the oyster season in each year, to appoint from the counties producing oysters for packing purposes in the state, not exceeding twenty special inspectors to be appointed as follows: Two each from Anne Arundel, St. Mary's, Talbot and Wicomico counties; three each from Dorchester, Somerset and Queen Anne's counties, and one each from Kent, Calvert and Charles counties, at a salary of forty-five dollars per month, during the oyster season, and they shall be stationed at such places as in the judgment of the commander of the state fishery force their services may be needed. Before assuming the duties of their offices the said special inspectors shall take an oath, to be administered by said commander, to diligently and faithfully discharge the duties of their said offices. The said special inspectors shall inspect all oysters in the district to which he is assigned; upon the inspection of any such oysters each special inspector shall make a certificate of the number of bushels the purchaser; one to the seller and the other daily to the general measurer and inspector of the district where such inspection occurred. A charge of two cents per bushel is hereby levied, one-half of which is to help defray the expense of such inspection (of oysters), and the other expenses of the state fishery force, and the other half of which is to be expended in reshelling and otherwise cultivating and improving the natural oyster beds and bars in the waters of the state, to be charged equally to the buyer and seller, but to be paid weekly to the Comptroller of the State Treasury, or his agent, by the buyers; the certificate given the general measurer and inspector shall be by him mailed weekly to the Comptroller, or his agent, and in case the amounts of money shown to be due, not paid in one week thereafter to the Comptrol ler, or his agent, which is hereby required to be done, the properties of the parties so indebted may be levied on and sold by the said Comptroller, or his agent, as in cases of taxes in default, without other process of law. The tax of two cents per bushel hereby levied is also made a charge on oysters sold by commission merchants and others selling by less than the cargo, and also a tax of six cents per barrel containing not more than three bushels, on oysters in bag, a tax of four cents per bag, containing not more than two bushels, and all transportation companies carrying oysters in the shell consigned to Baltimore shall furnish to the oyster inspector or collector of oyster tax a copy of his manifest, showing the number of bushels on board on arrival of steamer and to whom consigned, and the special inspectors are charged with the duty of seeing that proper returns are made for the purpose of this act, by such commission merchants or retailers, and in the performance of the duty the said special inspectors are authorized and directed to visit the places where oysters less than cargoes are sold and get from such sellers a statement, under oath, as to the number of bushels sold from time to time, and to return to the general measurers and inspectors a certificate thereof to be forwarded to the Comptroller, as is required in the case of the certificates for cargoes. And the payments of the amounts so found to be due shall be similarly enforced. All such special inspectors may be removed at any time by the commander for neglect or malfeasance in office, and said commander shall report to the Governor any neglect of a general measurer or inspector. The commander of the state of fishery force shall furnish to each of said special inspectors certificates in book form supplied with carbon paper, so that each of said triplicate certificates shall be exactly the same. The form of the certificate shall be as follows: 19. I hereby certify that I have this day inspected for Captain Schooner a cargo of oysters, sold to and found the same to contain bushels of mer Md.) D. E. FOOTE & CO. v. CLAGETT "Sec. 69A. The Comptroller of the State Treasury shall pass one-half of the amounts paid in by the buyers, as provided in section 69, to the credit of a fund to be known as a 'Natural Oyster Bed Reshelling Fund.'" The bill then avers that said act is unconstitutional and void: (a) Because it is in violation of article 1, § 8, of the Constitution of the United States, which vests in Congress exclusive power to regulate commerce between the states. (b) Because it violates article 1, § 10, of the Constitution of the United States, which prohibits any state, without the consent of Congress, from laying any duties upon imports or exports, except such as are absolutely necessary for executing its inspection laws. (c) Because the title of the act is insufficient under article 3, § 29, of the Constitution of the State of Maryland. (d) Because it violates article 15 of the Bill of Rights of Maryland in imposing a direct tax upon property, and not upon the owner thereof, the same not being laid with a political view for the good government and benefit of the community. (e) Because it is in other respects repugnant to the Constitution of the United States and to the Constitution of the State of Maryland respectively. (1) Because said act has been repealed by chapter 413 of the Acts of 1910 approved by the Governor on the same day (April 13, 1910) as chapter 735. The bill further avers that the Comptroller of the state, acting through said constable, and in pursuance of said chapter 735, has levied upon certain valuable property of the plaintiffs to enforce the collection of said tax or charge, and is about to remove and sell said property for the payment of said tax or charge; and that part of the oysters so purchased by said plaintiffs respectively were taken and brought in vessels and cars from the waters of Virginia and New Jersey, and the remainder from the waters of Maryland. The defendants both answered, admitting all the allegations of fact contained in the bill, but alleging that the validity, operation, and effect of the Acts of 1910, chapters 735 and 413, are matters of law to be determined by the court, and insisting upon all matters of defense to the bill which might have been availed of by demurrer, and praying the court to retain jurisdiction, and ascertain the amount which the answer alleges to be due from the plaintiffs respectively under said chapter 735, and to enter a decree therefor against the said respective plaintiffs. An agreement of counsel was also filed submitting the case for decree upon the bill, answer, and the facts contained in said agreement. This agreement details the history of the enactment of chapters 735 and 413 as bearing upon the averment of the bill that the former was repealed by the latter. It shows 81 A.-33 513 that each of the plaintiffs had paid the special license tax of $25 prescribed in section 77· of article 72 of the Code of Public General Laws of Maryland, up to and including the season of 1910 and 1911, and that each plaintiff was regularly assessed for miscellaneous stock at the factory, and had each paid state and city taxes annually on such assessments. It also states the number of bushels of oysters in the shell purchased by each plaintiff from the waters of Maryland, Virginia, and New Jersey, respectively, during the season of 1910 and 1911, and delivered at their respective factories in vessel loads, or in barrels and bags, and statements were attached to said agreement of facts, showing the amounts claimed by the defendants, and admitted by the plaintiffs to be due from each of them on account of said tax or charge, if the same should be determined by the court to be enforceable under the provisions of chapter 735 of 1910. The circuit court sustained said act as constitutional and valid, and dissolved the injunctions and dismissed the bill, and this appeal is from that decree. The first and most serious objection urged to the validity of this act is that it violates that provision of the Constitution of the United States which declares that "Congress shall have power to regulate commerce with foreign nations and among the several states." In approaching the consideration of this question it may be well to recall the language of Judge Alvey in State v. C. & P. R. R. Co., 40 Md. 44, where the taxing power of the state was challenged upon the ground mentioned above. The court said: "It is proper to say that the taxing power of the state is of vital importance to it; indeed, so essential is the power that the very existence of the state depends upon the right to exercise it. All persons and property, therefore, within the jurisdiction of the state, are liable to it; and the power is conferred upon the state for the benefit of the entire body politic. The power resides in the state as an attribute of its sovereignty, and the right of the Legislature, as the representatives of the people, to exercise it, should never be questioned, except in plain cases, where the power is relinquished for valid consideration, or where to prevent its abuse it has been placed under restriction, either as to the subjects liable to it, or the mode and manner of its exercise. That the state's power of taxation has been restrained and made subject to limitation by the federal Constitution as to certain subjects is clear, and it is equally clear that, with respect to the mode and manner of exercising the power by the Legislature, it has been restrained by the Constitution of the state. The ultimate questions for our determination, therefore, are: (1) Whether the transportation of oysters out of this state into another state or their transportation from merce. another state into this state constitutes com- pose, especially if connected with interstate merce within the meaning of the Constitu- or foreign commerce; nor can it impose such tion of the United States; and (2) if it does, taxes upon property imported into the state, then whether chapter 735 is an invasion of from abroad, or from another state, and not the right of Congress to regulate such com- yet become part of the common mass of propcrty therein; and no discrimination can be [1] But preliminary to these is the question made, by any such regulations adversely to of whether the power to regulate commerce the persons or property of other states, and is exclusively vested in Congress, or wheth- no regulations can be made directly affecting er it can be exercised by the state when Con- interstate commerce. * * * In a word, it gress has not exerted its power. In Gib- may be said that in the matter of interstate bons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, it was commerce the United States are but one coundeclared that this power "comprehends ev- try, and are, and must be, subject to one sysery species of commercial intercourse between tem of regulations, and not to a multitude of the United United States States and foreign foreign nations, systems." We have reproduced this passage and among the several states; here, because, while it emphasizes the excluthat it does not stop at the exter- sive power of Congress to regulate commerce nal boundary line of each state; *** in its national character and scope, it also and that the grant of this power carries enumerates concisely, but fully, and with with it the whole subject, leaving nothing unusual precision, the exceptions which are for the state to act upon." established by numerous decisions of the Supreme Court of the United States. * * [2, 3] In Brown v. State of Maryland, 12 Wheat. 419, 6 L. Ed. 678, Gibbons v. Ogden was approved, the court saying in that case that "the power was declared" to be complete in itself, and to acknowledge no limitations other than are prescribed by the Constitution. We deem it unnecessary now to reason in sup** Comport of these propositions. “* * * * is intercourse; one of its merce most ordinary ingredients is traffic. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation and is an essential ingredient of that intercourse of which importation constitutes a part. ** Congress has a right not only to authorize importation but to authorize the importer to sell." In Robbins v. Taxing District of Shelby County, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694, it was said: "That this power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system or plan of regulation. * * That, where the power of Congress to regulate is exclusive, the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions, and that any regulation of the subject by the states, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. *** And that the only way in which commerce between the the only way in which commerce between the states can be legitimately affected by state laws is when, by virtue of its police power and its jurisdiction over persons and property within its limits, a state provides for the security of the lives, limbs, health, and comfort of persons and the protection of property, or when it does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities; the passage of inspection laws to secure the due quality and measure of products and commodities; the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the community; the imposition of taxes upon persons residing within the state, or belonging to its population, and upon avocations and employments pursued therein, not directly connected with foreign or interstate commerce, or with some other employment or business exercised under authority of the Constitution and laws of the sylvania required every transportation comUnited States; and the imposition of taxes pany doing business in the state to pay to upon all property within the state, mingled the State Treasurer, for the use of the state, with and forming part of the great mass of two cents per ton on each ton of coal carried property therein. But in making such in- by said companies, and the Supreme Court in ternal regulations a state cannot impose tax-its opinion asks: "Why, then, is not a tax es upon persons passing through the state, or upon freight transported from state to state In the Passenger Cases, 7 How. 416, 12 L. Ed. 702, in the opinion of Mr. Justice Wayne, it is said: "Commerce consists in selling the superfluity; in purchasing articles of necessity, as well productions, as manufactures; in buying from one nation, and selling to another; or in transporting the merchandise from the seller to the buyer, to gain the freight." In Phil. & Reading R. R. Co. v. Pa., 15 Wall. 232, 21 L. Ed. 146, it was said: "It makes no difference whether this interchange of commodity is by land or by water. In either case, the bringing of the goods from the seller to the buyer is commerce. Beyond all question, the transportation of freight, or of the subjects of commerce, for the purpose of exchange or sale, is a constituent of commerce itself." In that case an act of the state of Penn Md.) D. E. FOOTE & CO. v. CLAGETT 515 therefore a regulation of commerce among | commerce be unconstitutional, it is not cured the states?" And it then proceeds to say by including in its provisions subjects within that the act in question, "so far as it applies to articles carried through the state, or articles taken up in the state, and carried out of it, or articles taken up without the state, and brought into it, is unconstitutional and void." the taxing power of the state. This is explicitly decided by R. R. Co. v. Pa., 15 Wall. 276, 277 [21 L. Ed. 146]. Without saying more in regard to this question, we are of opinion, upon the authority cited, that the Act of 1872, c. 274, so far as it affects to impose the tax upon coal transported from the mines in this state to places beyond the state for sale, is unconstitutional and void." We have not been able to discriminate that case from the one before us. To us it seems to be conclusive. Paraphrasing the language of that case, it is quite clear that the Act of 1910, c. 735, contemplates the transportation of oysters as freight, whether it be from this state to another state, or from another state into this state, for sale, and either transaction constitutes interstate commerce. packer is forbidden to buy oysters in course of transportation, except in the presence of the inspector who must certify the amount The The case last cited was considered by the Court of Appeals of Maryland in State v. C. & P. R. R. Co., 40 Md. 22, and it was there adopted as the basis of the opinion delivered by the court. The only question presented in that case was whether the Act of 1872, chapter 274, was constitutional or not. That act provided "that it shall not be lawful for any coal mining company or association in this state to transport any coal mined in this state, on any rail road, canal, or by any boat or vessel, from any mine in this state, to any place in this state or elsewhere, for sale, until a state tax of two cents per ton of 2,240 pounds on said coal, be first paid to the company undertaking to transport the same immediately from the mine, or payment of the name be provided for to the satisfaction of the said company undertaking to transport the same as aforesaid." Subsequent sections of said act made it unlawful provision of the act, which requires all transfor any transportation company doing busi-portation companies carrying oysters in the ness in the state to receive any such coal shell to furnish to the inspector a copy of his until the tax was paid to the company, which manifest showing the number of bushels on was declared liable to the state therefor. In board and to whom consigned, is conclusive the course of the opinion in that case, Judge that the tax is on oysters, transported as Alvey said: "The tax now under considera- freight. It is freight which is transported, tion is imposed directly upon the coal trans- and there can be no difference in principle, ported, and only on that transported for sale; in this respect, between oysters and coal. and as to all such portion of the coal as may be The only distinction between the two cases is that in one the tax is determined at the transported directly from the mines to places or markets beyond the limits of the state commencement of the transportation, and in for sale, the tax would plainly appear to be the other at its termination. of the tax, and thus the payment of the tax becomes a condition precedent to the sale, and consequently an impediment to the prosecution of that branch of commerce. That an interference with and a restriction on inThe learned judge of the circuit court, terstate commerce, and hence in contraven- doubtless in recognition of the duty to sustain tion of that provision of the federal Con- the law of the state if possible to do so, stitution which gives to Congress the power sought to discriminate the two cases upou to regulate commerce among the several two grounds: (1) That 90 per cent. of the states. Indeed, we are not left to construction coal in that case was designed for shipment or speculation as to this question. It has been out of the state, whereas in the present case recently before the Supreme Court of the only about one-third of the oysters were United States, and has there been decided shipped from other states; but it is a suffiin a case so entirely analogous to the present cient answer to this contention that right that we are relieved from doing more than and wrong cannot thus be apportioned. (2) to state the nature and ruling of that case." That there is an inherent difference in reHe then states the ruling of the Supreme spect of the ownership of coal and oysters, Court, and the reasoning upon which it is the former being the absolute property of based, which it is unnecessary to repeat here, the private owner of the soil which it underand concludes as follows: "It is quite clear lies, and the latter being the property of the that the act contemplates the transportation state which owns the soil covered by its of coal as freight beyond the state for sale; navigable waters. But this distinction can and thus the payment of the tax becomes a have no application to oysters taken in the condition precedent, and consequently an im- waters of other states and brought into this pediment to the prosecution of this branch of state for sale, whether as the property of commerce. And though the tax be levied that other state, or of individuals who have upon all coal transported, as well that trans- acquired ownership under the laws of that ported to places within the state as that state. The learned judge of the circuit court, transported beyond its limits, still that can in stating his conclusion that the constitumake no difference in the effect of the law. tional objection we are considering does not The state is at liberty to tax her internal affect this case, frankly said: "This particcommerce; but, if an act to tax interstate ular conclusion is reached by me after a care injunctions heretofore granted, and granting injunctions in like manner to each of the intervening petitioners seeking that relief. ful and repeated reading of the dissenting | reversed, and the cause be remanded, that a opinion of Judge Stewart in 40 Md." How- decree may be passed making perpetual the ever vigorous and persuasive may be that opinion, it did not prevail as the opinion of the court, nor has it sufficed during the 37 years which have elapsed since its rendition to shake the authority of the opinion of the majority, which has been cited with approval so late as State v. Applegarth, 81 Md. 302, 31 Atl. 961, 28 L. R. A. 812. The cases which uphold inspection laws of the states cannot rescue this case from the controlling effect of the decision in 40 Md. 22. [4] No tax can be laid by a state under article 1, § 10, of the Constitution of the United States, "except such as may be absolutely necessary for executing its inspection laws," and the courts are to judge of the reasonableness of the tax for that purpose. This act, upon its face, discloses the fact that the charge of two cents per bushel is not necessary for the execution of the law, since it segregates one-half the charge, and applies it to reshelling the oyster bottoms of the state, thus enriching the resources of the state by a tax upon interstate commerce. The title of this act, "To increase the productivity of the natural oyster bars or beds of this state," read in connection with the application of one-half the tax just mentioned, demonstrates that it is in fact a revenue measure under the guise of an inspection law. [5] The appellees contend that "there is no element of shipment from other states into this state as an article of interstate commerce; the oysters from Virginia and New Jersey being brought in and mingled with the other property in the state of Maryland, sold here, after hawking around from one canning house to another." But it has been expressly decided that "only by sale does the article brought from another state become mingled in the common mass of property within the state, up to which time the state has no power to interfere by any action." Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128. Decree reversed, and cause remanded for further proceedings in conformity with this opinion. (116 Md. 242) JOSEPH B. DUNN & SONS v. BRAGER. (Court of Appeals of Maryland. June 23, 1911.) 1. STATUTES (§ 37*)-VALIDITY-APPROVAL BY EXECUTIVE-ERROR IN ENROLLMENT. Laws 1910, c. 52, § 1, was enacted by the Legislature to read: "Every building erected and every building repaired rebuilt or improved to the extent of one fourth its value in Baltibe subject to a lien for the payment of all more City and in any of the Counties shall debts contracted for work done for or about the same and in the Counties Every such building shall also be subject to a lien for the payment of all debts Contracted for Materials furnished for or about the same,"-and through error or inadvertence in enrolling a period was inserted after the word "Counties" and before capitalized as the first word of a new sentence. the word "Every," and the word "Every" was Const. art. 3, § 30, requires that every bill enacted shall be presented to the Governor, who, if he approves it, shall sign it. Held, that book was the same act passed by the Legislathe act as signed and as printed in the statute ture, and not another or different act. [Ed. Note.-For other cases, see Statutes, Dec. Dig. § 37.*] 2. STATUTES (§ 200*)-CONSTRUCTION-MEANING OF LANGUAGE-PUNCTUATION. Code Pub. Gen. Laws 1904, art. 63, § 1, timore city there should be no mechanic's lien, title "Mechanics' Liens," provided that in Balexcept for work done, and that in Baltimore county there should be a lien for work done, but none for material furnished, except when the contract therefor was directly with the owner of the building or his agent. Laws 1908, c. 495, § 281, repealed and re-enacted article 63, and gave the same rights to liens in Baltimore county and city. Laws 1910, c. 52, § 1, which repealed Laws 1908, c. 495, § 281, repealed and re-enacted with amendments Code Pub. Gen. Laws 1904, art. 63, § 1, so as to read: "Every building erected and every building repaired [6] We regret that we are forced to hold rebuilt or improved to the extent of one fourth its value in Baltimore City and in any of the that this law is void for the reason stated, Counties shall be subject to a lien for the paybut we cannot escape that conclusion. As ment of all debts contracted for work done for was said in State v. C. & P. R. R., supra: such building shall also be subject to a lien for or about the same and in the Counties Every "It would not be fair to indulge a presump- the payment of all debts Contracted for Mation that the Legislature would have passed terials furnished for or about the same"-but the act in question with a knowledge that it it was through error or inadvertence in its encould only be effectual as to the coal (oys-rollment that a period was inserted after the word "Counties" and before the word "Every." ters) transported within the state, and thus and that the word "Every" was capitalized as intentionally have discriminated against the the first word of the following sentence, and citizens of the state and in favor of those so reading the enactment was signed by the Governor. Held, in view of Code Pub. Gen. beyond its limits." Laws 1904, art. 63, § 1, and Laws 1908, c. 495, § 281, that the sole purpose of the Legislature was to put Baltimore county upon the same basis as the other counties, without changing the law relating to Baltimore city, and that it would be changed to make the purpose of the Legislature clear, by striking out the period The decree of the circuit court will be after the word "Counties" and changing the In view of the conclusive effect of the one objection to the validity of this law which we have considered, we will not prolong this opinion by considering any of the other objections urged. |