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§ 119.: Licenses.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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It is the common custom in all of the towns and cities of the United States to require the payment of a certain sum of money as a license, for the privilege of prosecuting one’s profession or calling. The license is required indiscriminately of all kinds of occupations, whatever may be their character, whether harmful or innocent, whether the license is required as a protection to the public or not. The one general object of such ordinances, as a whole, whatever other reasons may be assigned for the requirement of a license in any particular occupation, can only be the provision of a reliable source of revenue. It is one of “the ways and means” of defraying the current expenses. While the courts are not uniform in the presentation of the grounds upon which the general requirement of a license for all kinds of employments may be justified; on one ground or another, the right to impose the license has been very generally recognized.1 Whatever refinements of reasoning may be indulged in, there are but two substantial phases to the imposition of a license tax on professions and occupations. It is either a license, strictly so-called, imposed in the exercise of the ordinary police power of the State, or it is a tax, laid in the exercise of the power of taxation. In many cases it becomes exceedingly important to determine under which power the particular license is imposed. For example, if a license is a tax the bill must originate in the house of representatives, according to the almost universal requirement of constitutional law. But if it is a police regulation, the bill providing for it is constitutional in whichever house it was introduced.2
For examples, I will refer to various licenses which have been imposed upon different callings and trades; and it will be seen by a perusal of the cases, that the courts are not always clear whether, in the imposition of the license, the legislature is exercising its police power or the power of taxation. It has thus been held to be reasonable to exact a license from hucksters and peddlars.3 A license tax has been held to be reasonable when imposed upon vendors of milk—evidently as a police regulation, since they are prohibited from plying their calling without the license;1 upon the vendors of cigarettes,—evidently justifying the apparently excessive amount of the license by the consideration, that the sale of cigarettes was injurious to the health of those who smoke them;2 upon attorneys and physicians,3 upon bakers,4 bankers,5 hacks and drays and other vehicles.6 So, likewise, may a license tax be exacted of keepers of places of amusements of all kinds,1 of dealers in second-hand articles, and pawn-shops,2 insurance brokers, whether they are residents, or come from another State,3 auctioneers.4 In short, the State has the power to impose a license fee, either as a tax or a police license, upon every kind of business; of course, including the trade in intoxicating liquors.5
Where, however, a State in the exercise of the police power, lawfully prohibits a certain trade or calling, the municipalities cannot give a lawful license to carry on such a calling.1 And if a trade, such as the liquor trade, has been licensed, the enactment of a prohibitive law repeals the license.2 So, also, the fact that the United States Government has granted a license to sell oleomargarine, does not permit one to sell the article in a State, in opposition to a State law which prohibits it altogether.3
The distinction between a license fee, imposed in the exercise of the police power, and a license tax levied in the exercise of the taxing power, should be clearly explained and fully set forth.
In preceding sections, it has been explained how the right to pursue the ordinary callings of life exists independently of government, and the pursuit of them can only be so far restrained and regulated, as such restraint and regulation may be required to prevent the doing of damage to the public or to third persons. Where the calling is not dangerous to the public, either directly or incidentally, it cannot be subjected to any police regulation whatever which does not fall within the power of taxation. But those occupations which require police regulation, because of their peculiar character, in order that harm might not come to the public, can be subjected to whatever police regulation may be necessary to avert the threatened danger. Among other measures, that would be justifiable in such cases, would be a more or less rigid police supervision of those who may be permitted to pursue the calling. Hence, it would be lawful and constitutional for the State or town to require all those who follow such a vocation to take out a license. On this principle, attorneys, physicians, druggists, engineers and other skilled workmen, may be required to procure a license, which would certify to their fitness to pursue their respective callings, in which professional skill is most necessary, and in which the ignorance of the practitioner is likely to be productive of great harm to the public, and to individuals coming into business relations with them. So, also, the licensing of dramshops, green groceries, hackmen and the like, is justifiable, in order that these callings may be effectually brought within the police supervision, which is necessary to prevent the occupation becoming harmful to the public. The dramshop is likely to gather together the more or less disreputable and dangerous classes of society; the green grocers are likely, if not honest, to sell to their customers meat that is stale and unhealthy; and the hackmen are inclined, if not watched by the public authorities, to practice frauds upon the public against which they cannot very well protect themselves without police aid. In the regulation of all such occupations, it is constitutional to require those who apply for a license to pay a reasonable sum to defray the expense of issuing the license and of maintaining the police supervision. What is a reasonable sum must be determined by the facts of each case; but where it is a plain case of police regulation, the courts are not inclined to be too exact in determining the expense of procuring the license, as long as the sum demanded is not altogether unreasonable.1 But where the license tax is imposed upon a business which is wholly or in large part interstate commerce, it cannot be sustained as a police regulation if it so exceeds in amount the needs of a license fee, as a police regulation, as to amount to a restriction upon interstate commerce. It is for that reason unconstitutional.1
The evils, growing out of some occupations, may be such that their suppression can only be attained to any appreciable degree by the imposition of a restraint upon the pursuit of such callings or kinds of business. For example, the keeping of saloons produces public evil in proportion to the number of low groggeries, which are allowed to be opened; and in any event the evil is lessened by reducing the number of saloons of all grades of respectability. One of the most effective modes of restraining and limiting the number of saloons in any particular town or city is to require a heavy license of the keepers of them. Such a license may, probably, be justified on the ground that, since the prosecution of the business entails more or less injury upon society, it is but just that those who make profit out of the traffic should bear the burden of liquidating the damage done to the public in the form of increased pauperism and crime. In Minnesota, an act provided for the payment of a license by all keepers of saloons and dramshops, which would be devoted to the establishment of a fund for the foundation and maintenance of an asylum for inebriates. In declaring the act to be constitutional, the court advanced the following reasons in support of it: “It is very apparent from its provisions, that the law in effect is one further regulating traffic in intoxicating drinks. Such is manifestly one of its objects, and its principal features and provisions accord with this idea. It requires of those desiring to prosecute business the procuring of a special license as a condition precedent to the exercise and enjoyment of such a right. It regards the traffic as one tending to produce intemperance, and as likely, by reason thereof, to entail upon the State the expense and burden of providing for the class of persons rendered incapable of self-support, the evil influence of whose presence and example upon society is necessarily injurious to the public welfare and prosperity, and, therefore, calls for such legislative interposition as will operate as a restraint upon the business, and protect the community from the mischief, evils and pecuniary burthens following from its prosecution. To this end the special license is required, and the business restricted to such persons as are willing to indemnify the State, in part, against its probable results and consequences, by contributing toward a fund that shall be devoted exclusively to that purpose in the manner indicated in the act. That these provisions unmistakably partake of the nature of police regulations, are strictly of that character, there can be no doubt, nor can it be denied that their expediency or necessity is solely a legislative, and not a judicial, question.
“Regarding the law as a precautionary measure, intended to operate as a wholesome restraint upon a traffic, and as a protection to society against its consequent evils, the exacted fee is not unreasonable in amount, and the purpose to which it is devoted is strictly pertinent and appropriate. It could not be questioned but that a reasonable sum imposed in the way of an indemnity to the State against the expense of maintaining the police force to supervise the conduct of those engaged in the business and to guard against disorders and infractions of law occasioned by its prosecution, would be a legitimate exercise of police power, and not open to the objection that it was a tax for the purpose of revenue, and therefore unconstitutional. Reclaiming the inebriate, restoring him to society, prepared again to discharge the duties of citizenship, equally promotes the public warfare and tends to the accomplishment of like beneficial results, and it is difficult to see wherein the imposition of a reasonable license fee would be any less a proper exercise of the power in one case than in the other.”1
But that disposition of the license fees is not necessary as a justification of the law which exacts them. The money, collected by way of a license as a police regulation, may go into the State treasury for general revenue purposes, and need not be devoted specially to the relief of burdens which the prosecution of the trade or occupation imposed on the State, provided that the character of the occupation is such that restrictions upon its pursuit, looking to its partial suppression, would be constitutional, whatever their character may be. Since the primary object of such a law would be to operate as a restriction upon the trade, and not to raise a revenue, the incidental increase in the revenue would constitute no valid objection to the law.2
The amount demanded for the license, in such a case, would be determinable by the legislature. It would be a legislative, and not a judical question.1 But it is a judicial question whether the particular occupation or trade can, under the constitutional limitations, be restrained.2 One, desiring to practice law or medicine, can be required to obtain a license from some court or other State authority, to which he is entitled, after passing a satisfactory examination into his qualifications for the profession; and he can be required to pay a small fee to cover the expense incurred in issuing the license; but he could not be rightfully compelled to pay a large amount, exacted of him with a view to reduce the number of the practitioners of these professions, although they may be overcrowded. A green grocer may be required to take out a license, in order that the proper police supervision may be maintained over his business to prevent the sale of unwholesome meat; and he may be required to pay a reasonable sum to defray the expenses of this necessary police inspection; but the number of green grocers cannot be restrained by requiring a large sum in payment for his license. In order to justify a restrictive license, the business must itself be of such a nature that its prosecution will do damage to the public, whatever may be the character and qualifications of those who engage in it. Such would be the keeping of a saloon or dramshop.3 Once having been judicially ascertained that the trade or occupation may be restrained, it is a matter of legislative discretion what kind of restraint should be imposed. The prosecution of the trade then becomes a privilege, for which as large a price can be demanded by the State as it may see fit. And it may be withheld or granted at the discretion of the State.1
So, likewise, discriminations are in such cases allowed on grounds of public policy, which would not be permissible in the case of a harmless and unobjectionable occupation, upon which it is proposed to impose, under the taxing power, a license tax. Thus, we have in an earlier section2 seen that it is permissible for a law to prohibit the employment of females in drinking saloons or bar-rooms. There is such a law in California. The city of Stockton passed an ordinance which imposes a license charge of $30 per quarter upon such places in general, but exacted a license fee of $150 per month for keeping a saloon or bar-room, wherein a female acts as bartender, actress, dancer, singer, etc. The discrimination, in the amount of the license tax, between the two classes of saloons was held not to violate the constitutional prohibition of all discriminations as to sex in the pursuit of any lawful business.3 And an ordinance of San Francisco denied all licenses to sell intoxicating liquors to persons who have females employed in their saloons as waitresses, in violation of the State law. The ordinance was attacked on the ground that it was an ex post facto law. It certainly would have been so held, if it related to the exercise of any vested or natural right. But since the character of the saloon business is such that it has been judicially declared to be subject to total prohibition, the granting of the licenses to engage in that business rests in the discretion of the legislature, both as to the number and as to the character of the persons, to whom the licenses shall be awarded. And so it was held in this San Francisco case.1 But it must not be understood that the legislative discretion, in granting and withholding a license to do any kind of business, is unlimited and is uncontrolled by any fundamental principles of justice and impartiality towards individuals. The constitutional principle of equality and uniformity as to all parties, who come within the operation of the law, must be strictly observed. A discrimination against a part of such a class, by the confinement of the regulation or license to that part, and the exemption of the other members of the same class from its obligations, would make the law for that reason unconstitutional, unless there was some justifiable reason for the discrimination, and of this the courts are the final judge. Several cases of this kind may be cited. Thus, a law has been held in Minnesota to be unconstitutional because it is class legislation, involving unjust discrimination, in that it required a license of hawkers and peddlers in general, but excepted from its provisions “any manufacturer, mechanic, nurseryman, farmer, butcher, * * * selling, as the case may be, his manufactured articles, or products of his nursery or farm or his wares,” etc.2 There does not seem to be any substantial reason why this distinction should be made. So, likewise, in a North Carolina case, an act was held to be unconstitutional which imposed a license fee of $1,000 upon anyone who was engaged in the business of hiring labor in certain counties of the State, to be employed outside of the State.3
In a California county, the board of supervisors, in their regulations of private asylums, for the insane and those suffering from inebriety and nervous diseases, required, inter alia, that no license be given to any one to carry on such a business, unless (1) the buildings are fire-proof, and the grounds adjoining the asylum are surrounded by a wall at least eighteen inches thick and twelve feet high, and the entire premises are located at least four hundred feet from any dwelling house or school house, (2) that no license shall be granted where male and female patients are cared for in the same building. These two regulations were held to be void because they were an unreasonable and arbitrary exercise of the police power.1 This is an especially strong case in illustration of the supervisory power of the judiciary over legislative police regulations, as the business is one that could be prohibited as a private business, with more convincing grounds of justification than can ordinarily be found in other cases of governmental monopolies.2
The antipathy of the inhabitants of California and other Pacific States to the Chinese has caused the enactment of some very unjustifiable police regulations, which were designed to drive the Chinese out of those States. The Chinese Exclusion Act has already been referred to.3 And other regulations, hostile to them, have been discussed elsewhere. Inasmuch as laundering has been and is still their chief industry, and they do the work by hand, in Montana and probably elsewhere, discriminations have been made against them by exacting a higher license from hand laundries than is required of the steam laundries. The Montana statute imposed a license tax of $25 per quarter on every laundry, except steam, in which more than one is employed, and a tax of $15 per quarter on steam laundries. The State Supreme Court held the act to be constitutional;1 while the United States court pronounced it unconstitutional, as in violation of the Fourteenth Amendment of the Federal Constitution, in that it denies the equal protection of the laws.2 This decision of the United States District Court will undoubtedly be sustained by the higher courts, if the State of Montana should appeal. For in a somewhat similar case, an ordinance of the city of San Francisco,—which was by no means so unreasonable, as the Montana statute, in its restrictions upon the laundry business; and which on its face does not give rise to any strong conviction that the motive of the ordinance was an unjust discrimination against the Chinese,—was declared by the Supreme Court of the United States to be unconstitutional.3 The ordinance was as follows: “It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed of brick or stone.” The court held it to be in violation of the Fourteenth Amendment of the United States Constitution, because it gives the board of supervisors the arbitrary power to grant or withhold licenses, guided and limited by no general rules.
“It allows without restriction the use for such purposes of buildings of brick or stone; but as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business, nor the situation, nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and on the other those from whom that consent is withheld, at their mere will and pleasure. And both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living. The ordinance therefore, also differs from the not unusual case, where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns or places for the sale of spirituous liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because in such cases the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature.”
The facts clearly showed an arbitrary discrimination against the Chinese.
On the other hand, a State law, which authorized the issue of licenses to hawk and peddle goods and wares, to persons who are physically disabled, but prohibited the issue of such licenses to able-bodied persons, was held to be a reasonable and constitutional exercise of police power, with the reasonable objects of suppressing vagrancy, and of providing a means of livelihood for the halt and blind.1
In respect to the great majority of employments and occupations, the principles, explained above, have no application whatever. They not only do not threaten any evil to the public, but their prosecution to the fullest measure of success is a public blessing. Instead of placing trades in general under restraints and police regulations, in which a license would be required, the utmost freedom can best attain the greatest good to the public. When, therefore, we see municipal corporations, requiring licenses for the prosecution of all kinds of occupations and employments; if their action can be justified at all, it must rest upon some other grounds than as a police regulation. It can only be justified as a tax upon the profession or calling. Having the natural, inalienable right to pursue a harmless calling, he cannot be required to take out a license before he can lawfully pursue it. For what is a license? “The object of a license,” says Mr. Justice Manning,1 “is to confer a right that does not exist without a license, and consequently a power to license involves in the exercise of it, a power to prohibit under pain or penalty without a license. Otherwise a license would be an idle ceremony, giving no right, conferring no privilege, and exempting from no pain or penalty. If the right existed previous to the law requiring the license, it would not exist afterwards without a license. The fact that a license is required to do an act, is of itself a prohibition of such act without a license.”2
“A proper license tax is not a tax at all within the meaning of the constitution, or even within the ordinary signification of the word ‘tax.’ * * * The imposition of a license tax is in the nature of the sale of a benefit, or privilege, to the party who would not otherwise be entitled to the same. The imposition of an ordinary tax is in the nature of the requisition of a contribution from that which the party taxed already rightfully possesses.”3
The following case, from the Supreme Court of Minnesota, covers the ground so effectually, in presenting the distinction between a “license” and a “tax” upon occupations, that an extensive quotation is given from the opinion of the court. The city council of St. Paul had by ordinance required a license fee of twenty-five dollars from every huckster of vegetables, who plied his trade in the streets of the city. In determining whether this was a license or a tax, the court said:—
“It is apparent that provisions of this section are founded upon the assumption that the common council, under the charter, possesses the power to license the pursuit of the particular calling or business mentioned, in and along the streets of the city, and to prescribe, as an incident thereto, when it may be followed, what sum shall be paid for the privilege, and also to prohibit the business entirely without a license, as an efficient means for the protection and enjoyment of the power itself. The ordinance is in entire harmony with this view and no other. It was not passed as suggested by counsel, by virtue of any power of supervision and control over streets, because powers of that character are conferred for the sole purpose of putting and preserving the public streets in a fit and serviceable condition, as such, by keeping them in repair and free from all obstructions and uses tending in any way to the hinderance or interruption of public travel, and to that end alone can they be exercised. The ordinance in question has no such object in view. On the contrary, it expressly authorizes the use of the public streets for the purposes of the licensed traffic during that portion of each day, when ordinarily the travel is the greatest, and when such traffic would be most likely to interfere with the free and uninterrupted passage of vehicles and footmen, and it contains no provision in any way restricting, or calculated to regulate, the manner in which the licensed business shall be conducted as to occasion the least public inconvenience. It cannot be claimed that it was enacted in the exercise of any police power for sanitary purposes, or for the preservation of good order, peace or quiet of the city, because neither upon its face, nor upon any evidence before us, does it appear that any provision is made for the inspection of any articles sold or offered for sale under the license, or for preventing the sale of any decayed or unwholesome vegetables; nor is there any restraint or regulation whatever, imposed upon the conduct of the business during the time it is permitted to be prosecuted. The annual sum exacted for the license is manifestly much in excess of what is necessary or reasonable to cover expenses incident to its issue. The business itself is of a useful character, neither hurtful nor pernicious, but beneficial to society, and recognized as rightful and legitimate, both at common law and by the general laws, of the State. No regulations being prescribed in reference to its prosecution under the license, there could be little, if any, occasion for the exercise of any police authority, in supervising the business or enforcing the ordinance, and no cause for any considerable expense on that account. In view of these facts, it is quite obvious that the amount of the license fee was fixed with reference to revenue purposes, which it was the main object of the ordinance to promote, by means of a tax imposed upon the particular employment or pursuit, through the exercise of its power over the subject of granting license.”1
It is, therefore, conclusive, that the general requirement of a license, for the pursuit of any business that is not dangerous to the public, can only be justified as an exercise of the power of taxation, or the requirement of a compensation for the enjoyment of a privilege or franchise. In respect to the latter ground, no substantial objection can be well laid to the requirement of a license. When the State grants a franchise, it may demand, as a consideration for its grant, some special compensation, and afterwards tax it as property ad valorem. Thus insurance companies, established by charter from one State, have no natural right to carry on business in any other State, and permission to do so is a privilege for which the payment of a substantial sum as license may be required.1 And, on the same general principle, has it been held lawful to require a license tax of owners of house-boats, which are kept on navigable rivers.2
The right of the State to tax professions and occupations, unless there is some special constitutional prohibition of it, seems to be very generally conceded. Judge Cooley says: “Taxes may assume the form of duties, imposts and excises, and those collected by the national government are very largely of this character. They may also assume the form of license fees, for permission to carry on particular occupations.”3 The State and the town authorities may impose a separate tax upon the same occupation;1 and the fact, that the property used in trade is taxed ad valorem, does not constitute any objection to the imposition of a license tax upon the business.2
The most common objection, that is raised to the enforcement of a license tax, is that it offends the constitutional provision which requires uniformity of taxation, since the determination of the sum that shall be required of each trade or occupation must necessarily, in some degree, be arbitrary, and the amount demanded more or less irregular. But the courts have very generally held that the constitutional requirement as to uniformity of taxation had no reference to taxation of occupations. “We are unable to perceive how the ordinance in question violates art. 127, which requires taxation to be equal and uniform. Its words are: ‘all keepers or owners of stables where horses and carriages are kept for hire, etc.’ The argument seems to be that the business of defendant’s livery stable will not bear such a tax. To this it may be again replied—this does not profess to be a tax upon capital or profits, which are property; but on the person pursuing a certain occupation. To levy such a tax differently upon one and another in proportion to the success of each in such a pursuit would produce the very inequality of which the defendants complain. As the ordinance stands, all are taxed alike.”3
A more serious question is the character of the remedies that may be employed for the collection of the license tax. Where the tax is laid upon property, the usual remedy is a suit at law and a sale of goods necessary to liquidate the taxes due, or, in the case of real property, a sale of the property against which the taxes are assessed. And a sale of the goods under execution, issued on a judgment for the license tax, would be an altogether unobjectionable remedy. When the tax is lawfully laid against the individual, it becomes a debt which, like any other kind of indebtedness, can be reduced to judgment, and satisfaction obtained by a sale under execution of the judgment debtor’s goods. But the usual remedy is to make the payment of the license tax a condition precedent to the lawful prosecution of the business, whether the license is executed in the enforcement of a police regulation, or as means of raising revenue. As a police regulation the denial of the right to engage in the business before taking out a license is but reasonable. The license operates as a prohibition, and there would clearly be no constitutional objection to a law, which even made it penal to prosecute the business without a license.1 But where the doing of business without a license, is made a criminal offense, all the requirements in the criminal law for notice, opportunity to be heard, and other safeguards against injustice and wrongful conviction, should be required to be observed in order to make the license law constitutional. Such a law was held to be unconstitutional, which authorized and required the county treasurer upon refusal to take out a required license “to seize any of the property upon which a lien is hereby created, belonging to such person, * * * and to sell the same in the manner provided for sheriffs;” because the act in question did not provide for giving notice to the owner of the seizure of such property. This was declared to be an unconstitutional taking of property.1
But the case assumes a different phase, when the occupation is merely taxed, and not licensed in the strict sense of the word. Can the State prohibit the prosecution of a trade or business until the tax is paid? Ordinarily it is conceded that this remedy may be adopted for the effectual collection of the tax. Judge Cooley says:2 “What method shall be devised for the collection of a tax, the legislature must determine, subject only to such rules, limitations, and restraints as the constitution may have imposed. Very summary methods are sanctioned by practice and precedent.” In a note on the same page, he gives among the methods of collection resorted to, the following: “Making payment a condition precedent to the exercise of some legal right, such as the institution of a suit, or voting at elections, or to the carrying on of business; requiring stamps on papers, documents, manufactured articles,” etc., and the United States government has employed in the internal revenue service a large force of detectives whose duty it is to discover and bring to punishment all those who are engaged in the manufacturing of distilled spirits. The right of the United States government to make the sale and manufacture of intoxicating liquors and tobacco illegal, unless a revenue license has been previously obtained, and the tax paid, has never been successfully contested, although the prosecutions for the violation of the law have been frequent.1 But the right of the States, in taxing the professions, to make the payment of the tax a condition precedent to the lawful pursuit of the business or profession, has been questioned, and likewise denied.2
“The popular understanding of the word license undoubtedly is a permission to do something which without license would not be allowable. This we are to suppose was the sense in which it was made use of in the constitution. But this is also the legal meaning. ‘The object of a license,’ says Mr. Justice Manning, ‘is to confer a right that does not exist without a license.’3 Within this definition, a mere tax upon a traffic cannot be a license of the traffic, unless the tax confers some right to carry on the traffic, which otherwise would not have existed. We do not understand that such is the case here. The very act which imposed this tax repealed the previous law, which forbade the traffic and declared it illegal. The trade then became lawful, whether taxed or not; and this law, in imposing the tax, did not declare the trade illegal in case the tax was not paid. So far as we can perceive, a failure to pay the tax no more renders the trade illegal than would a like failure of a farmer to pay a tax on his farm render its cultivation illegal. The State has imposed a tax in such a case, and made such provision as has been deemed needful to insure its payment; but it has not seen fit to make the failure to pay a forfeiture of the right to pursue the calling. If the tax is paid, the traffic is lawful; but if not paid, the traffic is equally lawful. There is consequently nothing in the case that appears to be in the nature of license.”1
While practice and precedent justify this summary method of collecting the tax upon occupations, it cannot be successfully denied that it is in contravention of natural right. Every one has a natural right to pursue any innocent calling, without permission from the government; and while the right of the government to tax an occupation may be conceded, the imposition of the tax creates only a debt between the individual and the State; and the same remedies may be pursued, as are permissible in the collection of ordinary debts. In cases of insolvency of the individual, the indebtedness to the State for a license tax may be given priority of payment; a very summary proceeding may be devised for reducing the license tax to judgment, and securing payment by a levy upon the goods of the individual;2 all these ordinary and special remedies, and others of a like character, might well be provided, but to make it illegal to pursue a trade or engage in an occupation, until the tax is paid, is clearly in violation of those fundamental principles of civil liberty, which are recognized and guaranteed by all constitutional governments. The State may make the payment of taxes generally, or of poll tax in particular, a condition precedent to the exercise of the right of suffrage, for that is generally conceded by all constitutional authorities to be a privilege, and not a natural right. But the pursuit of an employment or business is a natural right, which exists independently of State authority, and can only be abridged by the exercise of the police power of the State, in the imposition of those restrictions and burdens which are necessary to prevent, in the prosecution of the trade or business, the infliction of injury upon others. The collection of a tax does not come within the exercise of police power as a prohibitory measure.
Another important question, in connection with licenses, is the nature of the right or privilege acquired by a license, strictly so called. A license tax, as a tax, confers no right of any kind; it simply lays a burden upon an occupation, and creates the duty to pay the tax. But when the license fee is exacted in the exercise of the police power of the State, does its payment give to the owner of the license an irrevocable right to pursue the trade or occupation, subject to no further restrictions by the State? The question has assumed a practical form in determining the effect of the passage of a law, prohibiting the sale of intoxicating liquor, upon the licenses to sell, that have been previously granted, and the time for which they were given has not expired. Can the State, after granting a license to sell intoxicating liquors for one year, during that year revoke the license by prohibiting the sale altogether? The answer must depend upon the nature of the right acquired by the license. It has been repeatedly held that a subsequent prohibition law revokes all outstanding licenses, whatever damage might result to those who, relying upon the license, as giving the right to sell during the year, have incurred obligations and expenses, for which they cannot secure any proper reimbursement except in the continued enjoyment of the license. But, however great a hardship the revocation of the license may happen to be in particular cases, since the license is an authority to do what is otherwise prohibited, and the issue of the license is one mode of exercise of the police power; if the occupation or trade can be prohibited under the constitutional limitations, because of the injury done to the public in its prosecution, the license must be held to have been given and accepted, subject always to the constant exercise of the police power in the interest of the public, the right to the exercise of which can never be bartered away by any legislative enactment. The Court of Appeals of New York gave utterance to the following language, in explaining the right to revoke licenses:—
“These licenses to sell liquors are not contracts between the State and the person licensed, giving the latter vested rights, protected on general principles and by the constitution of the United States against subsequent legislation, nor are they property in any legal or constitutional sense. They have neither the qualities of a contract nor of property, but are merely temporary permits to do what otherwise would be an offense against a general law. They form a portion of the internal police system of the State; are issued in the exercise of its police powers, and are subject to the direction of the State government, which may modify, revoke or continue them as it may deem fit. If the legislature of 1857 had declared that licenses under it should be irrevocable (which it does not, but by its very terms they are revocable), the legislatures of subsequent years would not have been bound by the declaration. The necessary powers of the legislature over all subjects of internal police, being a part of the general grant of legislative power given by the constitution, cannot be sold, given away, or relinquished. Irrevocable grants of property and franchises may be made, if they do not impair the supreme authority to make laws for the right government of the State; but no one legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police.”1
It is also very clear that, if the imposition of a restrictive license is conceded to be constitutional, the government has the power to determine what persons, and how many, shall enjoy the privilege of a license; and one who is denied that privilege cannot claim that his constitutional rights have been thereby infringed.1
By the same course of reasoning is it justified, by subsequent laws, to subject the licensed occupation to further restrictions. Thus it was held that the grant of a license does not prevent the State from prohibiting by a later law the sale of liquor on certain specified days,2 or from prohibiting licensed saloons being open after a certain hour in the night,3 or from exacting an additional license tax.4
Boston v. Schaffer, 9 Pick. 415; Com. v. Stodder, 2 Cush. 562; Mayor of New York v. 2nd Ave. R. R. Co., 32 N. Y. 261; Brooklyn v. Breslin, 57 N. Y. 591; State v. Hoboken, 33 N. J. L. 280; Muhlenbrinck v. Com., 42 N. J. L. 364 (36 Am. Rep. 518); Johnson v. Philadelphia, 60 Pa. St. 445; Bennett v. Borough of Birmingham, 31 Pa. St. 15; State v. Roberts, 11 Gill & J. 506; The Germania v. State, 7 Md. 1; Slaughter v. Com., 13 Gratt. 767; Wynne v. Wright, 1 Dev. & B. (N. C.) L. 19; Home Ins. Co. v. Augusta, 50 Ga. 530; Savannah v. Charlton, 36 Ga. 460; Mayor v. Phelps, 27 Ala. 55; Mays v. Cincinnati, 1 Ohio St. 268; Cincinnati v. Bryson, 15 Ohio, 625; Chilvers v. People, 11 Mich. 43; State v. Herod, 29 Iowa, 123; People v. Thurber, 13 Ill. 557; Cairo v. Bross, 101 Ill. 475; Kniper v. Louisville, 7 Bush, 599.
Rankin v. City of Henderson (Ky.), 7 S. W. 174; State v. Wright, 14 Oreg. 365.
Dunham v. Rochester, 5 Cow. 462; Muhlenbrinck v. Commissioners, 42 N. J. L. 364; Com. v. Brinton, 132 Pa. St. 69; State v. Harrington, 68 Vt. 622; Frommer v. Richmond, 31 Gratt. 646; State v. Richards, 32 W. Va. 348; Huntington v. Cheesbro, 57 Ind. 74; Mays v. Cincinnati, 1 Ohio St. 268; Barling v. West, 29 Wis. 307; St. Paul v. Traegar, 25 Minn. 248; Temple v. Sumner, 51 Miss. 13; Ex parte, Ah Toy, 57 Cal. 92. In State v. Harrington, the Vermont statute required a deposit of $500 with the State treasurer, and the payment of $25, as a condition precedent to the procurement of a State license. The deposit of $500 was required as a guaranty fund against fraud and violations of of the law, and it was returned to the itinerant vendor at the end of the year, less whatever fines and penalties may have been imposed upon him for infractions of the law. The Vermont statute evidently considered the regulations to be an exercise of the police power, and not of the power of taxation. In Commonwealth v. Gardner, 133 Pa. St. 284, the licensing of peddlers was expressly declared to be an exercise of police power. The same ruling was expressly made in State ex rel. Luria v. Wagener, 69 Minn. 206, and the act was held to be unconstitutional because it discriminated against certain classes or kinds of hawkers and peddlers. See, also, generally, as to the regulation of hawkers and peddlers, Kennedy v. People, 9 Colo. App. 490; Hall v. State, 39 Fla. 637; City of Carlisle v. Hechinger (Ky. ’98), 45 S. W. 358; People v. Baker, 115 Mich. 199; Grand Rapids v. Norman, 110 Mich. 544; Kirkpatrick v. Davis Clock Co., 49 La. Ann. 871; State v. Rhyne, 119 N. C. 905.
People v. Mulholland, 19 Hun, 548; s. c. 82 N. Y. 324; Chicago v. Bartree, 100 Ill. 57.
Gundling v. City of Chicago, 176 Ill. 340.
Simmons v. State, 12 Mo. 268; St. Louis v. Sternberg, 69 Mo. 289; State v. Hibbard, 3 Ohio, 33; Savannah v. Charlton, 36 Ga. 460; Wilder v. Mayor of Savannah, 70 Ga. 760; Young v. Thomas, 17 Fla. 169; Longville v. State, 4 Tex. App. 312; Bullitt v. City of Paducah (Ky.), 3 S. W. 802.
Mayor &c. of Mobile v. Yuille, 3 Ala. 137.
City of Oil City v. Oil City Trust Co., 151 Pa. St. 454; State v. City of Columbia, 6 Rich. L. 404; New Orleans v. N. O. Sav. Inst., 32 La. Ann. 527.
Brooklyn v. Breslin, 57 N. Y. 591; Frankfort &c. R. R. Co. v. Philadelphia, 58 Pa. St. 562: Commonwealth v. Matthews, 122 Mass. 60; City Council v. Pepper, 1 Rich. L. 364; Cincinnati v. Bryson, 15 Ohio, 625; Little v. State, 8 Ohio C. C. 51; St. Louis v. Green, 70 Mo. 562; Logan v. Pyne, 43 Iowa, 524; St. Paul v. Smith, 27 Minn. 164; Snyder v. North Lawrence, 8 Kans. 82; Bowser v. Thompson (Ky. ’98), 45 S. W. 73. Generally, it is held that the license tax cannot be imposed upon private vehicles, at least, as a police regulation. St. Charles v. Nolle, 51 Mo. 122; St. Louis v. Grone, 46 Mo. 574; Collingsville v. Cole, 78 Ill. 114. But private as well as public vehicles may, of course, be taxed. Biddle v. Philadelphia Ry. Co., 1 Pittsb. Leg. J. 79; Knoxville v. Sanford, 13 Lea, 545; Edenton v. Capeheart, 71 N. C. 156; Frommer v. Richmond, 31 Va. 646; Bates v. Mobile, 46 Ala. 158.
New York v. Eden Musée American Co., 102 N. Y. 593; Com. v. Gee, 6 Cush. 174; Germania v. State, 7 Md. 1; State v. Miller, 93 N. C. 511; State v. Schonhausen, 37 La. Ann. 42; Charity Hospital v. Stickney, 2 La. Ann. 550; Mabry v. Tarner, 1 Humph. 94.
Marmet v. State, 45 Ohio St. 63; City of Grand Rapids v. Braudy, 105 Mich. 670.
Commonwealth v. Roswell (Mass. ’99), 53 N. E. 132.
Wiggins v. Chicago, 68 Ill. 372; Decorah v. Dunstan, 38 Iowa, 96; Fretwell v. Troy, 18 Kans. 271.
Licensing of liquor trade. State v. Cassidy, 22 Minn. 312 (21 Am. Rep. 767); Bancroft v. Dumas, 21 Vt. 456; State v. Brown, 19 Fla. 563; Lewellen v. Lockhardts, 21 Gratt. 570; Hirsh v. State, 21 Gratt. 785; Wiley v. Owens, 39 Ind. 429; Pleuler v. State, 11 Neb. 547; State v. Harris, 10 Iowa, 441; Hammond v. Haines, 25 Md. 541; Trustees v. Keeting, 4 Denio, 341; Town Council v. Harbers, 6 Rich. L. 96; State v. Plunkett, 3 Harr. (N. J.) 5; Burckholter v. McConnellsville, 20 Ohio St. 308; State v. Sherman, 20 Mo. 265; State ex rel. Troll v. Hudson, 78 Mo. 302; Gunnarssohn v. Sterling, 92 Ill. 669; East St. Louis v. Wehrung, 46 Ill. 392; Hill v. Decatur, 22 Ga. 203; Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654).
In re Garza, 28 Tex. App. 381 (houses of ill-fame; power to license must be expressly conferred).
Voight v. Board of Excise Comrs., 59 N. J. L. 358; Ex parte Williams, 31 Tex. Cr. Rep. 262; City of St. Charles v. Hackman, 133 Mo. 634; State ex rel. Dickason v. Marion Co. Court, 128 Mo. 427.
Commonwealth v. Crane, 158 Mass. 218.
Boston v. Schaffer, 9 Pick. 415; Welch v. Hotchkiss, 39 Conn. 140; Johnson v. Philadelphia, 60 Pa. St. 445; State v. Hoboken, 41 N. J. L. 71; Ash v. People, 11 Mich. 347; Van Baalen v. People, 40 Mich. 458; Burlington v. Putnam Ins. Co., 31 Iowa, 102. Thus a license tax of $300 was imposed upon packers and canners of oysters, and it was held to be reasonable. State v. Applegarth, 81 Md. 293. So, also, a State license tax of $300, imposed upon hawkers and peddlers, was sustained in Florida. Hall v. State, 39 Fla. 637. And a city license tax of $15 on the same class was sustained as reasonable in Michigan. Grand Rapids v. Norman, 110 Mich. 544.
See Brimmer v. Rebman, 138 U. S. 78; Harmon v. City of Chicago, 147 U. S. 396; In re Lebolt, 77 Fed. 587; Booth v. Lloyd, 33 Fed. 593; Willis v. Standard Oil Co., 50 Minn. 290; Webster v. Bell, 68 Fed. 183; 15 C. C. A. 360; City of San Bernardino v. Southern Pacific Co., 107 Cal. 524. But see Henderson Bridge Co. v. Com. (Ky.), 31 S. W. 486.
State v. Cassidy, 22 Minn. 312 (21 Am. Rep. 765).
Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 554); Carter v. Dow, 16 Wis. 299; Tenny v. Lanz, 16 Wis. 566. “In granting licenses, the items which may be taken into consideration as elements fixing the costs of the same, would seem to be about as follows: First, the value of the labor and material in merely allowing and issuing the license; second, the value of the benefit of the license to the person obtaining the same; third, the value of the convenience and cost to the public in protecting such business and in permitting it to be carried on in the community; fourth, and in some cases an additional amount imposed as a restraint upon the number of persons who might otherwise engage in the business. None of these items contemplates, except incidentally, the raising of revenue for general purposes. In many cases, the license, which, if issued for the proper purposes would be valid, would not be valid if issued merely for the purpose of obtaining or increasing the general revenue fund.” Leavenworth v. Booth, 15 Kan. 627. “It is no doubt true that the city was empowered to resort to other means of restraint (than requiring heavy licenses of saloon keepers) such as requiring such houses to be orderly, and in other respects to conform to such ordinances as might be adopted to properly restrain the business; but the fact that they had other powers conferred for this purpose in nowise prevented the city from exercising the power to restrain the general free sale of liquors by requiring that a license should be obtained before it could be sold.” Mt. Carmel v. Wabash, 50 Ill. 69; Emporia v. Volmer, 12 Kan. 622; Adler v. Whitbeck, 44 Ohio St. 539; Portwood v. Baskett, 64 Miss. 213.
See McBride v. State Revenue Agent, 70 Miss. 716; Marmet v. State, 45 Ohio St. 63, where the tax was graded according to the volume of the business.
But see contra City of Oil City v. Oil City Trust Co., 151 Pa. St. 454.
See post, § 125.
In re Hoover, 30 Fed. 51.
Ex parte Felchin, 96 Cal. 360.
Foster v. Board of Police Com’rs of San Francisco, 102 Cal. 483.
State v. Wagener, 69 Minn. 206. But see contra Sydow v. Territory (Ariz.), 36 P. 214, as to the validity of a similar law. In the cases of Weaver v. State, 89 Ga. 639; Singer Mfg. Co. v. Wright, 97 Ga. 115, the Supreme Court of Georgia sustained the constitutionality of license laws which imposed a license tax upon vendors of sewing machines who were likewise manufacturers, and exempted from the required license all other sewing machine vendors. Notwithstanding that the weight of authority seems to be the other way, I am satisfied that the Minnesota case is sound law.
State v. Moore, 113 N. C. 697.
Ex parte Whitwell, 98 Cal. 273.
See ante, § 45.
See § 58.
State v. French, 17 Mont. 54 (41 P. 1078).
In re Yot Sang, 75 Fed. 983.
Yick Wo v. Hopkins, 118 U. S. 356. Statutes have been sustained, which imposed a prohibitive license tax of $1,000 upon all who are engaged in “gift enterprises,” i. e., who offer prizes, gifts and premiums, as an inducement to buy their goods. Humes v. City of Fort Smith, Ark., 93 Fed. 857; Lansburgh v. District of Columbia, 11 App. D. C. 512. This prohibitive legislation is based upon the principle that the gift enterprises are inherently fraudulent. If this be true, which I doubt, there can be no question of the soundness of the position of the courts, in sustaining these statutes.
Commonwealth v. Brinton, 132 Pa. St. 62; Commonwealth v. Gardner, 133 Pa. St. 284.
Chilvers v. People, 11 Mich. 43.
Chilvers v. People, 11 Mich. 49.
Leavenworth v. Booth, 15 Kan. 627.
St. Paul v. Traeger, 25 Minn. 248. See, also, Mayor v. 2nd Ave. R. R. Co., 32 N. Y. 261; Kip v. Paterson, 26 N. J. 298; State v. Hoboken, 41 N. J. 71; Commonwealth v. Stodder, 2 Cush. 562; Johnson v. Philadelphia, 60 Pa. St. 445; Muhlenbrinck v. Commissioners, 42 N. J. 364 (36 Am. Rep. 518); State v. Roberts, 11 Gill & J. 506; Home Ins. Co. v. Augusta, 50 Ga. 530; Burlington v. Bumgardner, 42 Iowa, 673; Cairo v. Bross, 101 Ill. 475; Mayor v. Cincinnati, 1 Ohio St. 268.
People v. Thurber, 13 Ill. 554; Commonwealth v. Germania, L. I. Co., 11 Phila. 553; Walker v. Springfield, 94 Ill. 364; State v. Lathrop, 10 La. Ann. 398; Ex parte Conn, 13 Nev. 424; Trustees E. F. Fund v. Roome, 93 N. Y. 313; N. Y. Board of Fire Underwriters v. Whipple, 37 N. Y. S. 712; 2 App. Div. 361; Leavenworth v. Booth, 15 Kan. 627. So, also, as to tax on agents of foreign express companies, Crutcher v. Com., 89 Ky. 6; Woodward v. Com. (Ky.), 7 S. W. 613.
Robertson v. Commonwealth (Ky), 40 S. W. 920.
Cooley Const. Lim. 613; Ould v. Richmond, 23 Gratt. 464 (14 Am. Rep. 139); Commonwealth v. Moore, 25 Gratt. 951; Gatlin v. Tarborso, 78 N. C. 419; State v. Hayne, 4 Rich. L. 403; Young v. Thomas, 17 Fla. 169 (35 Am. Rep. 328); Stewart v. Potts, 49 Miss. 949; State v. Endom, 23 La. Ann. 663; New Orleans v. Kaufman, 29 La. 283 (29 Am. Rep. 328); Albrecht v. State, 8 Tex. Ct. App. 216 (34 Am. Rep. 737); Cousins v. State, 59 Ala. 113 (20 Am. Rep. 290); Sweet v. Wabash, 41 Ind. 7; Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654); Morrill v. State, 38 Wis. 428 (20 Am. Rep. 12); Ex parte Frank, 52 Cal. 606 (28 Am. Rep. 642); Ex parte Robinson, 12 Nev. 263. In Cincinnati v. Bryson, 15 Ohio, 625, Judge Read, in a dissenting opinion, denies that the legislature of Ohio has the power to tax occupations.
Webbe v. Commonwealth, 33 Gratt. 898.
St. Louis v. Green, 6 Mo. App. 590; Lewellen v. Lockharts, 21 Gratt. 570; Hirsh v. State, 21 Gratt. 785.
Municipality v. Dubois, 10 La. Ann. 56. See, also, to the same effect, Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654); Gatlin v. Tarboro, 78 N. C. 119; Mayor, etc., v. Beasley, 1 Humph. 232; Ex parte Robinson, 12 Nev. 263; State v. Endon, 23 La. Ann. 663; People v. Thurber, 13 Ill. 554; State v. Applegarth, 81 Md. 293; Weaver v. State, 89 Ga. 639; Singer Mfg. Co. v. Wright, 97 Ga. 115; State v. Richards, 32 W. Va. 348; Marmet v. State, 45 Ohio. St. 63 (rate of license graded according to volume of business); Hall v. State, 39 Fla. 637; State v. Moore, 113 N. C. 697.
Goshen v. Kern, 63 Ind. 468. In this case the occupation was that of auctioneers. In the case of peddling, Huntington v. Cheesbro, 57 Ind. 74; Temple v. Sumner, 51 Miss. 13; Ex parte Ah Foy, 57 Cal. 92. Peddlers are sometimes punished criminally for plying their trade without a license. Hall v. State, 39 Fla. 637; Commonwealth v. Heckinger (Ky. ’98), 42 S. W. 101. The same prohibition and the imposition of a fine for doing business without a license, has been applied to the business of pawnbrokers, and dealers in second-hand articles. Marmet v. State, 45 Ohio St. 63. These are all cases of undoubted police regulations. And, probably, as a means of preventing adulteration in milk, the application of the same rule to vendors of milk would be equally justifiable, and such vendors be prohibited from selling milk until they had procured their licenses. See to that effect, People v. Mulholland, 19 Hun, 548; s. c. 82 N. Y. 324; Chicago v. Bartree, 100 Ill. 57.
Chauvin v. Valiton, 8 Mont. 451.
Const. Lim. 645.
See Henderson’s Distilled Spirits, 14 Wall. 44.
“What is a license? It is defined to be a right given by some competent authority to do an act which, without such authority, would be illegal. The position of a city then is that, notwithstanding Dr. Charlton has a license from the State to practice medicine anywhere in the State, yet if he exercise the privilege thereby granted in the city of Savannah without a license from the city, it will be illegal. In other words if he acts under a license from the State, he becomes a criminal. The effect of which is to elevate the ordinance of a city above the laws of the State. * * * Under the name of license Dr. Charlton cannot be prohibited from availing himself, in the city, of a privilege conferred on him by the State. He is not here contesting the authority of the city to tax him for practicing his profession; what he contends for is, that the city shall not make that illegal which by the law of the State is legal. We see no good reason why the city may not tax the practice of any profession within the corporate limits.” Savannah v. Charlton, 36 Ga. 460.
Chilvers v. People, 11 Mich. 43.
Cooley, J., in Youngblood v. Sexton, 32 Mich. 406.
But the owner must receive notice of the levy and sale, in order to make the proceeding constitutional. Chauvin v. Valiton, 8 Mont. 451.
Metropolitan Board v. Barrie, 34 N. Y. 657. “Nor can it be doubted that the legislature has the power to prohibit the sale of spirituous or fermented liquors in any part of the State, notwithstanding a party to be affected by the law may have procured a license, under the general license laws of the State, which has not yet expired. Such a license is in no sense a contract made by the State with the party holding the license. It is a mere permit, subject to be modified or annulled at the pleasure of the legislature, who have the power to change or repeal the law under which the license was granted.” Fell v. State, 42 Md. 71 (20 Am. Rep. 83); Commonwealth v. Kingsley, 133 Mass. 578; La Croix v. Fairfield Co. Comrs., 49 Conn. 591; Reed v. Beall, 42 Miss. 572; Coulson v. Harris, 43 Miss. 728; Robertson v. State, 12 Tex. App. 541; Schwuchon v. Chicago, 68 Ill. 444; Prohibition Amendment Cases, 24 Kan. 700; Voight v. Board of Excise Commissioners, 59 N. J. 58; City of St. Charles v. Hackman, 133 Mo. 634; State ex rel. Dickason v. Marion Co. Court, 128 Mo. 427. And it is, likewise, true that a license from the Internal Revenue Department of the United States government to carry on the business, such as that of selling oleomargarine, does not give one a right to carry on such business in violation of the prohibitory law of the State. Commonwealth v. Crane, 158 Mass. 218.
Plumb v. Christie, 103 Ga. 686; Deal v. Singletary, 105 Ga. 466.
Reichmuller v. People, 44 Mich. 280.
State v. Washington, 44 N. J. L. 605 (43 Am. Rep. 402).
State ex rel. Dickason v. Marion Co. Court, 128 Mo. 427; Ex parte Williams, 31 Tex. Cr. Rep. 262; Trezvant v. State (Tex. Cr. Rep.), 20 S. W. 582.