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31
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1983
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SENATE
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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
Commerce Clause forbids the levying of a flat sum privilege tax
on the solicitation of orders for goods to be shipped in
interstate commerce, see Nippert v. City of Richmond, 327 U.S.
416, 421-422 and 435 (1946), West Point Wholesale Grocery Co. v.
City of Opelika, 354 U.S. 390, 391 (1957), and Dunbar-Stanley
Studios, Inc. v. Alabama, 393 U.S. 537, 540 (1969), it has also
been held that this clause does not forbid a license tax on the
essentially local activity of peddling, as distinguished from
solicitation, Caskey Baking Co. v. Virginia, 313 U.S. 117, 119
(1941). However, resident and non-resident peddlers must be
treated alike. Id. at 119-120. Thus, in Dunbar-Stanley Studios,
Inc., 393 U.S. at 541-42, the Supreme Court upheld a license tax
on itinerant photographers on the grounds that the taxable event
was the act of taking photographs, but it did so only after
noting that resident and non-resident photographers were both
subject to the tax.
Although these out-of-state truck vendors may be subject to
a license fee for selling their goods in this State, taxing
non-resident vendors at a rate 5-1/2 times that of resident
vendors is clearly discriminatory. Such unequal treatment of
non-residents is also of doubtful validity under the Privileges
and Immunities Clause of the Federal Constitution, Article IV,
Sec. 2, Cl. 1. See Hicklin v. Orbeck, 437 U.S. 518, 520 (1978).
However, we wish to emphasize that a uniform license tax on truck
vendors which is intended to equalize the tax burden between
truck vendors and businesses at fixed addresses which must have a
traders license, Article 56, Sections 32 et seq., would be
constitutional. See Caskey Baking Co., 313 U.S. at 120-121 and
Dunbar-Stanley Studios, Inc., 393 U.S. at 542.
Very truly yours,
Stephen H. Sachs
Attorney General
Senate Bill No. 327
AN ACT concerning
Garrett County - Truck Vendors' Licenses
FOR the purpose of providing that it is a misdemeanor for certain
out-of-county vendors coming into Garrett County by truck to
sell, auction, or offer for sale certain goods without first
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