State v. Lancaster , 63 N.H. 267 ( 1884 )

The respondent claims that so much of c. 44, Laws of 1879, as amended by c. 72, Laws of 1881, as the information is based upon, is in conflict with art. 4, s. 2, of the Constitution of the United States, giving the citizens of each state all the privileges and immunities of citizens in the several states.

Section 1 of c. 44, as amended, enacts, among other things, that no party shall sell, or act as the agent or receive subscriptions for the sale of, trees, shrubs, or vines, not grown in this state, unless he shall first obtain a license for that purpose, under a penalty of one hundred dollars for each offence, with the proviso that any citizen of this state may sell trees, shrubs, and vines grown one year or more in lands or nurseries owned by him in this state, on which taxes have been paid, without procuring the license or incurring the penalty. The information is for selling trees, shrubs, and vines in New Hampshire not grown there, or grown one year or more in lands or nurseries owned by the respondent in the state, on which taxes have been paid.

These statutes do not give the citizens of other states the right to sell trees, shrubs, and vines grown one year or more in lands or nurseries owned by them in this state on which taxes have been paid, without a license, and they are not, in this respect, given the privileges and immunities of citizens of this state. This conflict avoids the statutory provisions on which the state asks to maintain this information. Laws 1879, c. 44, Laws 1881, c. 72; Ward v. Maryland, 12 Wall. 418.

The case does not state the residence of the respondent, but it is assumed that it was in one of the other states of the Union. Still, if he was a citizen of this state, and the statute did not create a legal disability on citizens of other states, its effect being to discriminate against citizens of this state, a serious question arises, whether the legislature intended such a result, and if it did not, whether this provision of the statute has any legal effect. Bliss's Petition, ante 135.

Information quashed.

CLARK, J., did not sit: the others concurred.