Ward v. The State.

form of a license to sell. A license may be required to sell foreign articles, when those of a domestic manufacture are sold without one." Discriminations to this extent are made in the license laws of almost every state. In the case of The People v. Thurber, 13 Ill. 544, where a law imposing a tax of three per cent on premiums charged by agents of foreign insurance companies was assailed, the court held. it not to be a tax on property, but a burden imposed on the agent for the right of exercising a franchise or privilege within the state, which the legislature would have the right to withhold or inhibit altogether. "It would be strange," says the court, "if the legislature had not the power to prescribe the terms upon which foreign corporations should be permitted to come into this state and carry on their business, or even to prohibit them altogether." And in R. M. Charlton, 26, it was decided by Judge BERRIEN, in 1816, that a law imposing a tax of fifty cents on the hundred dollars on all goods, wares and merchandise, not the produce of the state, which shall be sold on commission in the city of Savannah by any person residing in its limits, was a legitimate exercise of power by the state, as a regulation of its own internal trade and commerce.

But, without pursuing this series of decisions further, let us see if there is any thing in the clause as to "privileges and immunities," which is contravened by the act before us. The supreme court have declined to give a general construction to this clause. In Conner v. Elliott, 18 How. 593, they said: "We do not deem it needful to attempt to define the meaning of the word privileges in this clause of the constitution. It is safer and more in accordance with the duty of judicial tribunals to leave its meaning to be determined in each case, upon a view of the particular rights asserted and denied therein. And especially is this true, when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are of such a character that any merely abstract definition could scarcely be correct, and a failure to make it so would certainly produce mischief." A partial construction was given by this court in Campbell v. Morris, 3 H. & McH. 554, to the effect that "it means that the citizens of all the states shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizen of the state is protected. It means such property shall not be liable to any taxes or burdens which the property of the citizer

Ward v. The State.

is not subjected to. It may also mean that, as creditors, they shall be on the same footing with the state creditor in the payment of the debts of a deceased debtor. It secures and protects personal rights." In the enumeration made by Judge WASHINGTON, in Corfield. or yell, 4 Wash. C. C. 381, are included "the right of a citizen of one state to pass through or reside in any other state, for the purpose of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state." And in Crandall v. The State, 10 Conn. 344, C. J. DAGGETT held, that should a citizen of Connecticut purchase a farm in Massachusetts, and the legislature of Massachusetts tax the owner of that farm four times as much as they would tax a citizen of Massachusetts, because the one resided in Connecticut and the other in Massachusetts, or should a law be passed by either of those states that no citizen of the other should reside or trade in its limits, such laws would be unconstitutional as violative of this clause in the constitution of the United States.

These decisions certainly show that the provision is effective to prevent the property, real or personal, owned by a non-resident, and located in the state, from being subjected to any higher rate f state taxation than similar property of resident owners, but, in our judgment, they do not cover the present case. The law before us is not a tax upon either person or property, but on a particular trade or business carried on in the state, and cannot, in our opinion, be regarded as imposing a higher rate of taxation upon non-residents than upon citizens, either in respect to person or property. Nor do we perceive it to be in any other respect unjust, unfair or discriminating in operation and effect. We have shown that the state has power to impose a license tax on all trade or business carried on in its borders, whether by its own citizens or those of other states. The resident owner or trader is required to take out a license to carry on his business or trade, and his property and goods here situated are also subject to state, county and city taxation. There 18 nothing upon the face of the law, or in this record, to show that the non-resident trader, doing the business thus taxed, is thereby subjected to heavier taxation than the resident merchant carrying on the like retail or wholesale business. It certainly cannot be said

Bank of Commerce v. Owens.

to be an immunity or privilege secured by this clause of the constitution, that a non-resident merchant or trader shall be permitted to come into a state, and trade or do business therein, and pay neither a license tax on his trade nor a tax on his property, while the resident merchant must pay both; to have all the advantages of a resident trader and escape all taxation to which the latter is subjected. The law does not prevent his bringing his goods here, and selling them in the same mode, and subject to the same tax, as that imposed on all the citizens of the state, but simply provides that if he keeps his goods elsewhere, and seeks to carry on the business of selling them here, by card or sample, he shall pay a certain tax, by way of license, for so doing, and there is nothing to show, and nothing in our license laws from which it can be inferred, that the rate of license thus required exceeds in amount the taxes to which the resident trader is subjected.

We do not, however, rest our decision altogether upon this ground, for we are further of opinion that, even if this law is to be regarded as restrictive and discriminating in its character and design, it still simply imposes a tax on a particular business carried on in a particular mode within the limits of the state, which it is perfectly competent for the legislature to regulate and restrain, and in so doing has violated neither of the clauses of the constitution of the United States to which reference has been made. The judgment is accordingly affirmed.

Judgment affirmed.

BANK OF COMMERCE, appellant, v. OWENS.

(31 Md. 320.)

Dower in mortgaged estate.*

Where the wife unites with the husband in a mortgage of real estate belonging to him, and the property is sold under a decree of foreclosure, she is entitled to dower in the surplus only after the payment of the mortgage. Where the purchaser of the equity of redemption redeems the property, the widow is only entitled to dower by contributing her proportion of the mort gage debt.

APPEAL from the superior court of Baltimore city.

One Dr. Owens, with the concurrence of his wife, the appellee,

• In Maryland, the widow takes for life one-third of all the lands of which the husband was seized during coverture. Dorsey's Laws, vol. 1, p. 701, § 10; Md. Code, art. 45, § 5. — REP.

Bank of Commerce v. Owens.

executed two mortgages upon certain lands belonging to him in 1863. In 1866, the appellant, having recovered judgment against Dr. Owens for a debt, issued an attachment thereupon, which was on the 1st of February levied on the mortgaged lands. On the 12th of the same month, Dr. Owens, without his wife's concurrence, made a deed of trust for the benefit of his creditors. Under the provisions of this deed, the lands, consisting of two farms, were sold. One farm was purchased by the appellee, and the appellant subsequently became the purchaser of the other. The lands sold for more than the amount of the mortgages, neither of which were then due, leaving a surplus to be applied in the attachment. Dr. Owens having died, the appellee filed a petition claiming dower out of the whole proceeds of the sale of both farms, which was allowed, notwithstanding the objection of the appellant.

H. C. Kennard and S. Teackle Wallis, for appellant.

Wm. C. Schley and Wm. Schley, for appellee.

ROBINSON, J., delivered the opinion of the court.

Two questions arise upon this appeal: First, is the appellee entitled to dower? and, secondly, if so, is she dowable in the whole proceeds arising from the sale of the mortgaged premises, or in the surplus only, after the payment of the mortgage debts?

On the part of the appellant, it is insisted that, by the execution of the mortgages, she parted with her inchoate right of dower in the legal estate, and that, by the subsequent assignment of the husband under the deed of trust, her dower was barred in the equitable estate. In other words, it is held, that the wife is not entitled to dower in an equitable estate under the provisions of section 5 of article 45 of the Code, unless it is held by the husband at the time of his death.

We do not understand, however, the cases of Hopkins et al. v. Frey, 2 Gill, 363, and Miller v. Stump, 3 id. 310, to go to this

extent.

In the former, it was decided that the widow was not entitled, because the husband parted with the equitable estate prior to the passage of the act of 1818, ch. 193, under which she claimed.

And, in Miller v. Stump, although it was held that she could act recover it as against the purchaser, yet the court said: "It may be asked whether she cannot claim, in lieu of the one-third of the land,

Bank of Commerce v. Owens.

a portion of the surplus. In some cases, it may be argued that the widow is entitled to a portion of the surplus. It is not necessary, however, upon this appeal, to inquire if such be the law of this case. If, indeed, she be entitled to receive any thing, she is not to receive it of the purchaser."

Here is a very strong intimation that the widow may be entitled to dower in the surplus. Certainly, it cannot be said that the court decided that she was neither entitled to dower in the land nor in the surplus. The latter was left as an open question.

But, in this case, it must be remembered, the husband was seized of a legal title, upon which the wife's inchoate right of dower attached by the common law. And can it be said that, pledging this right to secure her husband's indebtedness, she thereby puts it in his power, or that of his creditor, to defeat it altogether? To this view we cannot yield our assent. The husband may assign the equity of redemption, but no act of his could deprive the widow of the right to redeem to which she is entitled under the common law.

Moreover, in this case, it cannot be held that the husband parted with the equitable estate, within the supposed meaning of the court, in Miller v. Stump. There was no sale here by him for a money consideration, but the assignment was made to trustees, in order that they might sell and apply the proceeds toward the extinguishment of the very mortgages in favor of which the wife had pledged her dower right. It was, in fact, but a conversion of the equity of redemption into money, for the benefit of creditors.

Now, would it not be a construction equally strange and unjust to say that the widow is not entitled to dower in the legal estate because she parted with it by joining her husband in the execution of the mortgages? nor can she claim it in the equitable estate. because that was conveyed by the husband to trustees to sell, and apply the proceeds to the extinguishment of the mortgages. So, that between the two, the dower is altogether defeated.

It will be observed that we have treated the mortgagee as holding the legal title; for such we understand to be his estate by the common law.

In the case of the George's Creek Coal and Iron Co's Lessee v. Detmoid, 1 Md. 225, where there was a mortgage with a covenant that the mortgagor should remain in possession and receive the rents and profits until forfeiture, it was held that such a covenant operated