is true at a municipal corporation has no general power to tax for revenue, it is generally held that such a corporation under its power to license and regulate peddlers cannot tax them for revenue purposes; consequently a peddler's license fee must not be so greatly out of proportion to the reasonable cost of issuing it as to show that it was not designed for police purposes, but was in reality an assessment for revenue.15 This would be true even though the municipality had express authority to license peddlers, for, conceding that a state could expressly confer on the municipality the power to tax peddlers for revenue, it is a reasonable inference that if it intended to give that broader power it would have done so in unequivocal terms. 16 But an incidental revenue would not render a police regulation invalid.1

11. Delegation of Power to Administrative Boards.-Delegation by the state to a municipal corporation of the power to license peddling is a delegation to a body with legislative powers and is perfectly valid.18 But a further delegation of the licensing power either by the state or the municipal corporation to an administrative board or official is generally held to be bad.19 So giving to an administrative official the discretion to fix the amount of the peddler's license within a wide margin is giving to that official the power to authorize or forbid or to burden the pursuit of the occupation at his discretion, and is an invalid delegation.20 But where the administrative official is merely given the power to issue a license to peddlers coupled. with the duty to issue it to all filling prescribed requirements, and is given no discretion in the premises, the ordinance is valid.1

IV. EXTENT AND SCOPE OF POWER TO LICENSE

12. Discrimination against Interstate Commerce.-The power in the state, or its subordinate bodies, to require a license from peddlers is subject to certain definite and well recognized restrictions. Of course, the constitution of a particular state may impose restrictions, but with the particular restrictions imposed by the several state constitutions we cannot deal here. The more general restrictions of those state constitutions involve, in substance, the same questions that are

14. See MUNICIPAL CORPORATIONS, vol. 19, p. 943 et seq.

15. Ottumwa v. Zekind, 95 Ia. 622, 64 N. W. 646, 58 A. S. R. 447, 29 L.R.A. 734; State v. Foster, 22 R. I. 163, 46 Atl. 833, 50 L.R.A. 339.

Notes: 34 Am. Dec. 638; Ann. Cas. 1914D 938, 939.

16. Ottumwa v. Zekind, 95 Ia. 622, 64 N. W. 646, 58 A. S. R. 447, 29 L.R.A. 734; Muhlenbrinck v. Long Branch Com'rs, 42 N. J. L. 364, 36 R. C. L. Vol. XXI.-13. 193

Am. Rep. 518; State v. Foster, 22 R.
I. 163, 46 Atl. 833, 50 L.R.A. 339.
17. Note: Ann. Cas. 1914D 938.
18. See supra, par. 10. See also
MUNICIPAL CORPORATIONS, vol. 19, p.
943.

19. See LICENSES, vol. 17, p. 535. 20. State v. Conlon, 65 Conn. 478, 33 Atl. 519, 48 A. S. R. 227, 31 L.R A. 55.

Note: 20 L.R.A. 724.
1. Note: 20 L.R.A. 725.

involved in the consideration of the restrictions imposed by the federal constitution. It is only with the latter that the article will concern itself. The primary constitutional restrictions upon the licensing of peddlers by the state is found in Art. I, sec. 8, of the federal constitution providing that "Congress shall have the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes." This section places such commerce absolutely within the control of Congress and in the absence of specific action by Congress prohibits any interference by the states in interstate commerce. Obviously, a statute or ordinance which places on interstate commerce by reason of its very interstate nature a burden the like of which is not placed on intrastate commerce is a regulation of interstate commerce and is therefore unconstitutional. And a law which discriminates against goods which have once been a part of an interstate commercial transaction is a burden on interstate commerce which is invalid. The commercial power of the United States continues until the commodity has ceased to be a subject of discriminating legislation by reason of its foreign character. That power protects the commodity, even after it has entered the state, from any burdens imposed because of its foreign origin. Accordingly, it has been settled by the unanimous authorities that a statute or ordinance permitting all persons to peddle goods manufactured or produced within the state, but prohibiting the same persons from peddling goods of the same character manufactured or produced in other states, is void. Likewise a law permitting the sale by peddlers of agricultural products of the United States without a license, but forbidding the unlicensed sale of agricultural products of other countries, is unconstitutional as a regulation of foreign commerce. And where a peddler license law discriminates against residents of other states it is unconstitutional not only under the equal protection of the laws and the privileges and immunities clauses, but also under the commerce clause."

2. See COMMERCE, vol. 5, p. 700. 3. Welton v. Missouri, 91 U. S. 275, 23 U. S. (L. ed.) 347; Howe Mach. Co. v. Gage, 100 U. S. 676, 25 U. S. (L. ed.) 754. See COMMERCE, vol. 5, p. 801.

4. Welton v. Missouri, 91 U. S. 275, 23 U. S. (L. ed.) 347; Howe Mach. Co. v. Gage, 100 U. S. 676, 25 U. S. (L. ed.) 754; Marshalltown v. Blum, 58 Ia. 184, 12 N. W. 266, 43 Am. Rep. 116; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49; State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297.

236; 112 A. S. R. 336; 19 L.R.A. (N.S.) 298.

Notes: 27 A. S. R. 563; 48 A. S. R.

5. Com. v. Caldwell, 190 Mass. 355, 76 N. E. 955, 112 A. S. R. 334, 5 Ann. Cas. 879 and note; Com. v. Hana, 195 Mass. 262, 81 N. E. 149, 122 A. S. K. 251 and note, 11 Ann. Cas. 514, 11 L.R.A. (N.S.) 799. See COMMERCE vol. 5, p. 801.

6. See infra, par. 16.

7. Marshalltown v. Blum, 58 Ia. 184, 12 N. W. 266, 43 Am. Rep. 116; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49. Notes: 48 A. S. R. 236; 80 A. S. R. See COMMERCE, vol. 5, p. 801.

396.

13. Transactions Which Are Parts of Interstate Commerce.-Not only may a state not lay a discriminatory burden on interstate commerce or on goods of foreign origin, but it may not in any way interfere with or tax any transaction directly connected with the interstate shipment of goods.8 A great many statutes and ordinances go beyond the regulation of actual peddling and provide that there may be no soliciting for orders or sales by samples, unless the solicitor has secured a license. It is universally held that such statutes and ordinances are inapplicable to the soliciting for orders for goods which are to be shipped from one state into another, for such transactions are directly connected with interstate commerce. A fortiori, a statute which, by combining both of the foregoing defects, requires a license to canvass or sell by sample goods shipped into the state, and permits, without a license, the canvassing or selling in such manner goods not shipped into the state, violates the commerce clause of the federal constitution, and is therefore void.10 An order taken in one state and filled by shipment from another state is so essentially and plainly interstate commerce that a local agent receiving a bulk shipment, made from outside a state in response to local orders, and distributing the goods after breaking the bulk, cannot be taxed, for he is engaged in completing the interstate transaction. The courts have gone even further and held that where a picture was ordered from another state in compliance with an offer giving the purchaser the privilege of buying one of several frames at wholesale prices, the agent who called and sold and delivered the frame to go with the picture could not be taxed as a peddler, for he, also, was engaged in completing an interstate transaction.12 There was some conflict on this point, though,

8. See COMMERCE, vol. 5, p. 768. 9. Brennan v. Titusville, 153 U. S. 289, 14 S. Ct. 829, 38 U. S. (L. ed.) 719, reversing Titusville v. Brennan, 143 Pa. St. 642, 22 Atl. 893, 24 A. S. R. 580, 14 L.R.A. 100; Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430; Rearick v. Pennsylvania, 203 U. S. 507, 27 S. Ct. 159, 51 U. S. (L. ed.) 295; Crenshaw v. Arkansas, 227 U. S. 389, 33 S. Ct. 294, 57 U. S. (L. ed.) 565; Stewart v. Michigan, 232 U. S. 665, 34 S. Ct. 476, 58 U. S. (L. ed.) 786; In re Spain, 47 Fed. 208, 14 L.R.A. 97 and note; Wrought Iron Range Co. v. Johnson. 84 Ga. 754, 11 S. E. 233. 8 L.R.A. 273; In re Kinyon, 9 Idaho 642, 75 Pac. 268, 2 Ann. Cas. 699 and note; South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531; State v. Emart, 103 Mo. 241, 15 S. W.

81, 23 A. S. R. 874, 11 L.R.A. 219; State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297; State v. Glasby, 50 Wash. 598, 97 Pac. 734, 21 L.R.A. (N.S.) 797.

Notes: 33 A. S. R. 846; 19 L.R.A. (N.S.) 304; Ann. Cas. 1916B 496.

10. State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297.

11. Caldwell v. North Carolina, 187 U. S. 622, 23 S. Ct. 229, 47 U. S. (L. ed.) 336; Rearick v. Pennsylvania, 203 U. S. 507, 27 S. Ct., 159, 51 U. S. (L. ed.) 295; In re Spain, 47 Fed. 208, 14 L.R.A. 97; State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297.

Notes: 96 A. S. R. 846; 19 L.R.A. (N.S.) 310; 2 Ann. Cas. 702.

12. Dozier v. Alabama, 218 U. S. 124, 30 S. Ct. 649, 54 U. S. (L. ed.) 965, 28 L.R.A. (N.S.) 264 and note;

before the federal cases settled it. Not only is the distribution of goods ordered from abroad a part of interstate commerce but the local sale of goods in the original package in which they were shipped from another state is a part of an interstate commercial transaction. Hence the sale of those goods cannot be taxed or burdened by the state in which the sale is made under either the taxing or the police power so long as the original package is preserved.14 And it would seem that this principle would protect the peddling of goods in their "original packages" no matter whether the peddler's license was imposed as a police measure or as a tax.15 Therefore the correctness of those statements in state cases which say that peddlers may be taxed on sales of imported goods even though they remain in their original packages may be doubted. 16

14. Peddling of Goods of Foreign Origin and Patented Goods.It is very plain that a state may lay a nondiscriminatory tax on peddlers and it cannot be escaped merely on the ground that the articles the peddler happens to sell are produced or shipped from another state. Peddlers of goods of foreign origin are not protected from a nondiscriminatory tax after the goods have become mixed with goods of the state imposing the tax,17 and the fact that the sale was conditional and the title retained by the foreign owner does not render the transaction part of an interstate one.18 Of course the difficult question arises as to when the original package has been broken. It

Davis v. Virginia, 236 U. S. 697, 35
S. Ct. 479, 59 U. S. (L. ed.) 795.

13. State v. Montgomery, 94 Me. 192, 47 Atl. 165, 80 A. S. R. 386.

Notes: 19 L.R.A. (N.S.) 310; 28 L.R.A. (N.S.) 266.

14. Leisy v. Hardin, 135 U. S. 100, 10 S. Ct. 681, 34 U. S. (L. ed.) 128; Crenshaw v. Arkansas, 227 U. S. 389, 33 S. Ct. 294, 57 U. S. (L. ed.) 565. See COMMERCE, vol. 5, p. 755.

15. Howe Mach. Co. v. Gage, 100 U. S. 676, 25 U. S. (L. ed.) 754; State v. Emert, 103 Mo. 241, 15 S. W. 81, 23 A. S. R. 874, 11 L.R.A. 219.

16. State v. Wheelock, 95 Ia. 577, 64 N. W. 620, 58 A. S. R. 442, 30 L.R.A. 429; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 A. S. R. 645, 7 L.R.A. 666.

17. Howe Mach. Co. v. Gage, 100 U. S. 676, 25 U. S. (L. ed.) 754; Emert v. Missouri, 156 Ù. S. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430; In re Wilson, 8 Mackey (D. C.) 341, 12 L.R.A. 624 and note; Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31

L.R.A. 522; South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531; State v. Montgomery, 94 Me. 192, 47 Atl. 165, 80 A. S. R. 386; State v. Emert, 103 Mo. 241, 15 S. W. 81, 23 A. S. R. 874, 11 L.R.A. 219; State v. Parsons, 124 Mo. 436, 27 S. W. 1102, 46 A. S. R. 457; Ex parte Case, 70 Ore. 291, 135 Pac. 881, 141 Pac. 746, Ann. Cas. 1916B 490; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 A. S. R. 645, 7 L.R.A. 666; Com. v. Harmel, 166 Pa. St. 89, 30 Atl. 1036, 27 L.R.A. 388; Saulsbury v. State, 43 Tex. Crim. 90, 63 S. W. 568, 96 A. S. R. 837 and note; State v. Richards, 32 W. Va. 348, 9 S. E. 245, 3 L.R.A. 705; Morrill v. State. 38 Wis. 428, 20 Am. Rep. 12, reversed on another point in 154 U. S. 626, 14 S. Ct. 1206, 23 U. S. (L. ed.) 1009.

Notes: 27 A. S. R. 563; 48 A. S. R. 236; 58 A. S. R. 451; 14 L.R.A. 97; 19 L.R.A.(N.S.) 312; 2 Ann. Cas. 703.

See COMMERCE, vol. 5, p. 766. 18. South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531.

is safe to say that there is no hard and fast rule. The great number of the cases which uphold taxes on persons peddling goods of foreign origin would indicate that if the tax does not discriminate against interstate commerce, and if the goods have been shipped into the state before sale and actually taken possession of by the peddler and carried around by him for the purpose of making general sales, the courts will be very prone to find that the original package has been broken and the goods mingled with the general mass of property within the state.19 Somewhat akin to the foregoing is the question that arises on the peddling of patented articles. It has been held that one peddling an article of which he is also the patentee may be required to take out a peddler's license under a municipal ordinance 20 for the existence of the patent does not guarantee freedom of sales.1

15. Restraint of Trade. It is generally said that a peddler license law which operates in restraint of trade is invalid, and such statements are correct inasmuch as the phrase "restraint of trade" has grown to mean unreasonable restraint of trade. It is submitted that any peddler license requirement, whether a police or a taxing measure, does in fact operate to restrain trade. Yet such license laws are frequently upheld. But if there is an unreasonable restraint of trade the law is bad because of the unreasonableness. It is safe to say that an unreasonable exercise of the police or taxing power of the state is in violation of the federal constitution. By the constitution the ownership of property is protected. The right to buy, sell, barter, and exchange property is a necessary incident to its ownership, and is as much protected by the constitution as is the ownership itself," and the occupation of peddling would fall within this protection. Of course the right to sell by peddling is not absolute, but is subject to the police regulations of the state. A regulation which goes beyond reasonable police purposes and operates merely to fetter the occupation would be clearly bad, for it would be a taking of property without

19. Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 430; Saulsbury v. State, 43 Tex. Crim. 90, 63 S. W. 568, 96 A. S. R. 837; State v. Bayer, 34 Utah 257, 97 Pac. 129. 19 L.R.A.(N.S.) 297.

20. People v. Russell, 49 Mich. 617, 14 N. W. 568, 43 Am. Rep. 478.

Note: 3 L.R.A. 705.

1. See CONSTITUTIONAL LAW, vol. 6, p. 142.

2. Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L.R.A. 522; Chaddock v. Day, 75 Mich. 527, 42 N. W. 977, 13 A. S. R. 468, 4 L.R.A. 809; Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76, 33 A. S. R. 842, 16 L.R.A. 49.

Notes: 13 A. S. R. 474; 24 A. S. R. 140; 48 A. S. R. 236.

3. See supra, par. 8, 9.

4. See CONSTITUTIONAL LAW, vol. 6, pp. 236, 239, 378.

5. Carrollton v. Bazzette, 159 III. 284, 42 N. E. 837, 31 L.R.A. 522 and note. See CONSTITUTIONAL LAW, vol. 6, p. 471.

6. State v. Wagener, 69 Minn. 206. 72 N. W. 67, 65 A. S. R. 565, 38 L.R.A. 677.

7. See supra, par. 8.

8. Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L.R.A. 522; Ottumwa v. Zekind, 95 Ia. 622, 64 N. W. 646, 58 A. S. R. 447, 29 L.R.A. 734; Iowa City v. Glassman, 155 Ia.