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HARRY HUGHES, Governor 2349
Governor
May 25, 1983
Honorable Harry Hughes
Governor of Maryland
State House
Annapolis, Maryland 21401
Re: Senate Bill 327
Dear Governor Hughes:
This is to advise you that we have reviewed for
constitutionality and legal sufficiency Senate Bill 327, a bill
which provides a criminal penalty for out-of-county, including
out-of-state, truck vendors in Garrett County who fail to
purchase an itinerant peddlers license, as required by existing
law. Although there is no constitutional objection to the
penalty, as such, we regard the existing licensing law as
unconstitutional. Because the bill adds a criminal penalty to
what we think is an unconstitutional law, and apparently seeks to
render more enforceable the existing provisions of law, we are
unable to approve the bill.
Senate Bill 327 amends Section 3-6 of the Public Local Laws
of Garrett County, which generally prohibits a truck vendor "from
some other county or state" from selling goods without having
purchased from the Clerk of the Circuit Court an annual itinerant
peddler's license for $250. Although this local law clearly
exempts resident truck vendors, such vendors, as well as
non-resident vendors, are subject to the general licensing
requirement for hawkers and peddlers. Article 56, Secs. 21 and
23-28. The license fee is regarded as a revenue measure, Brown
v. State, 177 Md. 321, 328 (1939), and in Garrett County this
fee, which is collected by the Clerk of the Circuit Court, is
$300 for non-residents and $100 for residents. Although
non-resident truck vendors are technically subject to a double
licensing requirement, it can reasonably be said that both
non-residents and residents are treated alike in that both must
be licensed. However, they are not treated alike in the license
fees they must pay, i.e., $550 for the non-resident and $100 for
the resident.
It has long been recognized that the Commerce Clause,
Article 1, Sec. 8, Cl. 3, of the Federal Constitution does not
immunize interstate commerce from its fair share of the costs of
State government. Northwestern States Portland Cement Co. v.
Minnesota, 358 U.S. 450, 461-462 (1959). However, a State may
not tax the privilege of engaging in interstate commerce nor
discriminate against interstate commerce by providing a direct
commercial advantage to local business or by subjecting
interstate commerce to the burdens of multiple taxations. Id. at
548. Although the "drummer cases" have long held that the
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