The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-02-05
SAMpLE-MERCHANTS' LAW.
A DRUMMER" BEFORE JUDGE
HUGHES ON A WRIT OF
,HABEAs CORPUS.
THE LAW TESTED BY TIE LIGHT OF
THE FEDERAL CONSTITUTION.
THE PRISONER NOT DISCHARGED

The h0bedS corpus case Of n. =. Touch
man, which was fixed for hearing before
Judge Robert w. Hughes, of the United
States District Court, at II o'clock yesterday
morning, was continued until O'Clock in
the afternoon, when the prisoner was brought
into court. He was represented by Mr.. Z. Y.
Cannon, and the Commonwealth by Mr.. +.
Darlington Cabetl, Commonwealth's attorney
Of Richmond. Captain George D. Wise and
Judge Alfred Morton were also present as
counsel, the former representing accused in
the same situation as Touchman, and the
latter representing interests identical with
the CommonweaIth's.
IN the matter of II. P. Tonchman, on hebeea
corpus to the sergeant Of the city of Rich.
mond, who brings the body Of the prisoner
into court and makes return that the Ni
soner is held in his custody as jailor, &c.
under an indictment found by the grand
jury Of the Hastings Court, charging
him with unlawluly selling and offering
to sell goods, wares, and merchandise by
card, sample. and other representation,
without license, according to law, SO 10
do; and that he is detained for no other
cause.
The prisoner in his petition complains
that he is unlawlully detained and wrong.
fully restrained Of his liberty by arrest and
Imprisonment under an act Of the General
Assembly Of Virginia, approved Goth April,
1879, section ITO, entitled ian act for the
assessment, levy, and collection of taxes"
He alleges that he is citizen and resident Of
the State OF Pennsylvania, doing business as
a merchant in the city Of Philadelphia, and
is entitled as such to the'eDjoyment of all the
privileges and immunities IN the State of
Virginia which belong to the citizens there
Of; and he complains that the aforesaid act
Of Assembly contrayenes the second section
of the fourth article Of the Constitution of
the United States in this, that it imposes a
tax Oil citizens Of the Union not residing in
Virginia greater than it imposes on resident
citizens OF Virginia.
The Judge rcmanded the prisoner to the
custody of the sergeant Of Richmond, deci-
ding rs follows:
The prisoner in custody is charged with
violating the 10th section of the act Of AS.
scmbIy, approved April 0th, 1874, entitled
'tan act for the assessment, levy, and colec'
ton Of taxes" This law requires all sample.
merchants to take out license TO sell by
sample, and to pay a tax Of 500. No resi-
dents but licensed merchants and manutactu
rers can take out npe-merchants' license.
1t requires resident merchants and
resident manufacturers, besides any other
tax they may be required to pay, in order to
sell by sample, to take out license ana pay
tax Of S25. 1t allows licensed manuiactu,
rers and merchants to exhibit samples oi
their wares and goods anywhere in the State
1t makes the license of merchant good not
only in the city or county where it is taken
out, but also over the whole State. 1t de-
clareS the license taken out by sample
merchants TO be personal privilege not
transferable, which can be used only by the
person taking it out. 1t allows resident
merchants who are licensed to exhibit their
wares or goods anywhere in the State by
agents, but forbids them to employ as agents
| nonresident travellers or saleSmen. 1t allows
| Il nonresident to take out a resident mcr.
! chants license.
A law may be unconstitutional in some ol
| its provisions and not 50 in others. 1t may
| be constitutional in its effect upon some
classes of citizens and not so upon others
A law may be treated aSto such provisions
and as to such classes, as pro tantO unconstl'
tutional, and upheld as to other provisions
and classes. If q prisoner has violated &
provision of law that is constitutional, ht
should not escape because another provision
| of the same law is unconstitutional
lam free to express the opinion that the ac
OF the Virginia Assembly under consideration
is in two or three respects unconstitutional
under the ruling of the Supreme Court o
the United States in the case Of Wood Us
Maryland Q2 Wallace, 49,
]. II manufacturer of another State were
: to exhibit samples of his wares in this with
out having taken out a license to sell by sam
pie under the 111th section of The act then
, if he were arrested and imprisoned for so eX
hibiting his wares, it would be question
whether he might not be released on th,
l ground that he was not allowed the sam,
: privilege as nonresident manufacturer tha
! was allowed the resident manufacturer.
f 3. So if q merchant Of another State wer
to take out Il license >as merchant here
5 both asa resident merchant and under sec
ton Ill, paying the tax of S25, and thel
were to exhibit his goods by sample in tha
| case, if he were Imprisoned for eXhibilin,
his samples, it would be question whethe
: he might not be released on the ground tha
the same privilege was not allowed to him
as nonresident citizen, that was above,
to the resident merchant.
3. So, also, if a nonresident travelling
agent of licensed resident merchant wer
to be arrested for exhibiting samples OF th
goods Of bis employer, he might he releases
f on the ground that he was denied the priv
Iege Of acting as agent which was given b
this law to resident travelling agents.
But this prisoner is neither non-residen
manufacturer, nor a nonresident merchan
licensed here as sample.merchant, nor
nonresident agent of u licensed reSiden
merchant. He was not, therefore, in an
way exercising q privilege as non.reSideD
which could be exercised by i resident. Ii
had not paid any tax or taken out any license
He had not secured the right in any o
the modes prescribed by law TO exhibit sam
pies. He had acquired no right to exhibi
samples by virtue of any similar right &C
Quired by any resident; and the only priv
lege of which he has been deprived is tha
of disrcgardipg every requirement OF tn
law of which he complains. g.. 49,.
While, therefore, it may be that this act 0
the Virginia Assembly (of 30th April, 1874
might be successfully impeached as opera
ting uneonstitutionally in several classes o
cases where non.residents are liable to b
prosecuted and imprisoned under it, yet
does not operate unconslitutionally in th
case of this prisoner.
| / have felt constrained to lean, as far as
consistently could, TO the support OF the laV
Of the State and, by strict construction Q
the decision of The Supreme Court on tnl
question, to apply it only as far as It's very
terms and language require. 1t declared IN
statute of Maryland, rs to the especial pro'l
sions it had under review Immediately affect
ing the plaintiff in. error. pro tanto void. b!
limiting its decision to those provision
which directly affected the rights OF th
plaintiff it impliedly forbade the courts
| the United States TO go farther and 10 invali