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HARRY HUGHES, Governor 2343
occupation or common calling. Hicklin, 437 U.S. at 524; Baldwin,
436 U.S. at 383; Toomer v. Witsell, 334 U.S. 385, 396 (1948); and
Ward v. Maryland, 12 Wall. (79 U.S.) 418, 430 (1871).
In matters enjoying the protection of this clause, a state
may not discriminate against residents of other states simply
because of their residence, but this does not preclude treating
nonresidents differently if there is a substantial basis apart
from residence for doing so. Toomer v. Witsell, 334 U.S. 385,
396 (1948). Discrimination against nonresidents is not barred if
there is something to indicate that they are a peculiar source of
an evil at which a statute is aimed. Id. at 398. In each case
the inquiry is whether there are independent reasons for the
discrimination against nonresidents and whether the degree of
discrimination bears a close relationship to them. Id. at 396.
Applying these principles, the Supreme Court struck down the
Alaska Hire Law, which required the State's oil and gas lessees
to give a preference in their employment to Alaska residents.
Hicklin, 437 U.S. at 520 and 525-526. Likewise, we can find no
independent justification for the bill's durational residency
requirement, which effectively discriminates against
out-of-county, including out-of-state, residents who wish to
pursue the business of telling fortunes and conducting seances in
Dorchester County. The residence requirement is clearly
unrelated to any qualification for pursuing these callings and
certainly does not guarantee that the public is dealing with
reputable practitioners. Indeed, a report signed by the Chairman
of the Senate Committee on Economic Affairs, which was prepared
by the Department of Legislative Reference, states that the
"purpose of this bill is to assist local businesses by giving
them a competitive edge over non-local business." Accordingly,
the residence requirement violates the Privileges and Immunities
Clause of the Federal Constitution. Because this requirement,
the other qualifications, and the fee reduction are clearly part
of an overall plan to favor local fortune tellers and
spiritualists, the residence requirement is not severable and we
are unable to approve the bill.
Although the residence requirement may also violate the
Commerce Clause, Article I, Sec. 8, Cl. 3, and the Privileges and
Immunities and Equal Protection Clauses of the Fourteenth
Amendment, we find it unnecessary to pass on these issues or on
the validity of the taxpayer and property qualifications in light
of the residence requirement's manifest violation of the
Privileges and Immunities Clause.
Very truly yours,
Stephen H. Sachs
Attorney General
1/ Although the Privileges and Immunities Clause uses the term
"Citizen," this term has generally been understood to be
interchangeable with the word "resident." Hicklin, 437 U.S.
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