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STOUTENBURGH V. HENNICK, 129 U. S. 141 (1889)

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U.S. Supreme Court

Stoutenburgh v. Hennick, 129 U.S. 141 (1889)

Stoutenburgh v. Hennick

No. 722

Submitted December 18, 1888

Decided January 14, 1889

129 U.S. 141


Under the authority conferred upon Congress by § 8, Article I, of the Constitution "to make all laws which shall be necessary or proper for carrying into execution" the power "to exercise exclusive legislation in all cases whatsoever over" the District of Columbia, Congress may constitute the District "a body corporate for municipal purposes," but can only authorize it to exercise municipal powers.

The Act of the Legislative Assembly of the District of Columbia of August 23, 1871, as amended June 20, 1872, relating to license taxes on persons engaging in trade, business or profession within the District, was intended to be a regulation of a purely municipal character; but nevertheless the provision in clause 3 of § 21, which required commercial agents, engaged in offering merchandise for sale by sample, to take out and pay for such a license is a regulation of interstate commerce so far as applicable to persons soliciting the sale of goods on behalf of individuals or firms doing business outside of the District, and it was not within the chanroblesvirtualawlibrary

Page 129 U. S. 142

constitutional power of Congress to delegate to that legislature authority to enact a clause with such a provision, nor did it in fact do so in a grant of power for municipal purposes.

Robbins v. Shelby County Taxing District, 120 U. S. 489, and Asher v. Texas, 128 U. S. 129, affirmed.

The repeal or modification by Congress of clauses in a legislative act of the District of Columbia, which are separable and separably operative, is no ratification of another clause in it, equally separable and separably operative, which it was beyond the delegated or constitutional power of the legislature of the District to enact.

Hennick, the defendant in error, was convicted in the police court of the District of Columbia upon an information stating that he, in April, 1887,

"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 do so, contrary to and in violation of an act of the late legislative assembly of the District of Columbia entitled 'An act imposing a license on trades, business, and professions practiced or carried on in the District of Columbia,' and providing for the enforcement and collection of fines and penalties for carrying on business in the said district without license, approved August 23, A.D. 1871, and the amendments to the said act, approved June 20, A.D. 1872,"

and sentenced "to pay a fine of five dollars, in addition to the license tax of two hundred dollars, and in default to be committed to the workhouse for the term of sixty days," and, being in default, was so committed. He applied to one of the justices of the supreme court of the District for and obtained a writ of habeas corpus, which was certified to be heard in the first instance in the general term of that court, and, upon hearing, it was held "that the law for the violation of which the petitioner is held is not a valid law," and his discharge from custody was ordered accordingly; whereupon this writ of error was sued out.

The act in question was passed by the then legislative assembly of the District August 23, 1871, and amended June 20, 1872 (Laws District of Columbia, Acts First Session, p. 87, chanroblesvirtualawlibrary

Page 129 U. S. 143

Acts Second Session, p. 60), and by its first section it was provided:

"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."

Then followed twenty-three sections, of which the twenty-first is subdivided into forty-eight clauses. Clause 3 was so amended as to read:

"Commercial agents shall pay two hundred dollars annually. Every person whose business it is, as agent, to offer for sale goods, wares, or merchandise by sample, catalogue, or otherwise, shall be regarded as a commercial agent."

Section 4 of the act is in these words:

"That every person liable for license tax who, failing to pay the same within thirty days after the same has become due and payable, for such neglect shall, in addition to the license tax imposed, pay a fine or penalty of not less than five nor more than fifty dollars, and a like fine or penalty for every subsequent offense."

And then follows a proviso not material here.

A part of the act was repealed by Congress February 17, 1873, 17 Stat. 464. The twenty-third section, and clauses 20 and 35 of the twenty-first section, and clause 16 of the 21 section, as amended, were repealed and modified July 12, 1876, 19 Stat. 88, as were also, on January 26, 1887, parts of clause 38 of section 21, as amended, and of section 15.

Sections 1 and 18 of the Act of Congress of February 21, 1871, entitled "An act to provide a government for the District of Columbia," 16 Stat. 419, are as follows:

"SEC 1. That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act."

"SEC. 18. That the legislative power of the District shall

Page 129 U. S. 144

extend to all rightful subjects of legislation within said District, consistent with the Constitution of the United States and the provisions of this act, subject nevertheless to all the restrictions and limitations imposed upon states by the tenth section of the first article of the Constitution of the United States; but all acts of the legislative assembly shall at all times be subject to repeal or modification by the Congress of the United States, and nothing herein shall be construed to deprive Congress of the power of legislation over said District in as ample manner as if this law had not been enacted."

These sections are carried forward into the Act of Congress of June 22, 1874, entitled

"An act to revise and consolidate the statutes of the United States, general and permanent in their nature, relating to the District of Columbia, in force on the first day of December, in the year of our Lord one thousand eight hundred and seventy-three,"

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Page 129 U. S. 147

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