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25
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1983
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SENATE
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State House
Annapolis, Maryland 21401
Re: Senate Bill 293
Dear Governor Hughes:
This is to advise you that we have reviewed for
constitutionality and legal sufficiency Senate Bill 293, a bill
which amends the current licensing law for fortune tellers and
spiritualists in Dorchester County. As amended, this law would
reduce the annual license fee and require that an applicant for a
license have been "a resident, taxpayer and property owner of
Dorchester County for at least 18 months..." Because this
residency requirement violates the Privileges and Immunities
Clause of the Federal Constitution, and because it is an integral
part of the bill, we are unable to approve the bill.
Article IV, Section 2 of the Federal Constitution provides
that "[t]he Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens of the several States."
This clause "establishes a norm of comity" among the States in
their treatment of the residents 1/ of other states. Hicklin
v. Orbeck, 437 U.S. 518, 523-24 (1978), and Austin v. New
Hampshire, 420 U.S. 656, 660 (1975). Essentially, it requires
that each state treat all citizens, residents and nonresidents
equally with respect to those "privileges" and "immunities"
bearing upon the vitality of the Nation as a single entity.
Baldwin v. Fish and Game Commission, 436 U.S. 371, 383 (1978).
It has long been established that one of the privileges and
immunities protected by this clause is the pursuit of a trade,
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
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