his expense, in case of its not being suitably or expeditiously performed by himself.1

It is not to be doubted that other cases which may not have yet been the subject of judicial consideration would fall within the same reasons; but it might be presumptuous to attempt an enumeration of them, especially as there can be little or no occasion for doing so, when the taxing power is commonly sufficient to meet all their requirements. A safer ground will be occupied in the consideration of those cases, so often the subject of judicial review, in which burdens in the shape of license fees have been imposed upon business, trades or occupations.

License fees in general. License fees may be imposed: 1. For regulation. 2. For revenue. 3. To give monopolies. 4. For prohibition. The third purpose is inadmissible in any free government, and has not avowedly been had in view at any time in this country, nor in England since the period immediately preceding the revolution of 1688, so fruitful of arbitrary exactions of every available nature. The fourth purpose

1 In State v. Charleston, 12 Rich., 702, 733, the power to require sewers, drains and sidewalks to be constructed by the owners of the property adjacent is plainly referred to the police power. "From a very early period sewers and pavements have constituted exceptional subjects in reference to assessments. Statutes of drains and sewers were known before the time of Henry VIII., when the general statutes on the subject were enacted, and the mode of assessment prescribed. In like manner the act of 1764 provided for assessments for drains or sewers and sidewalks. Various reasons have been assigned for these exceptions. Among others, it has been plainly urged that, as a sanitary regulation, and under the power to abata nuisances, the corporation might require every citizen to drain his own lot, or, in case of neglect, exact a penalty; and so by the old act of 1698 (7 Stat., 12), every inhabitant of Charleston was required to mend and raise the sidewalk in front of his house in the manner and to the dimensions therein prescribed, on penalty of forfeiting for each house a penalty to be collected under the warrant of a justice of the peace. In order the better to carry into effect these objects, and to do what each individual might be required to do for himself, the act of 1764 authorized the commissioners of streets to construct drains and level and pave the footways, etc., and to assess the proprietors of lands and houses fronting on the street," etc. Dunkin, Chancellor, p. 733.

2 Taxation for the benefit of individuals is compared to monopolies by Lowrie, Ch. J., in Philadelphia Association, etc., v. Wood, 39 Pa. St., 67, 82. The very heavy license fees exacted from pawnbrokers in Dublin are said to

is entirely admissible in the case of pursuits or indulgencies which in their general effect are believed to be more harmful than beneficial to society, and which, consequently, the public interest requires should be put an end to. A case of this nature is that of heavy fees imposed on the keepers of implements of gaming. When, however, prohibition is the object, the end may generally be more directly accomplished by legis lation which in its terms is prohibitory, than by the circuitous method of imposing a burden difficult or impossible to be borne; and the direct method is consequently the one usually adopted. But it is often found that the prohibition of an occupation which excites or gratifies the vices or passions of large numbers

owe their origin to a purpose to give a monopoly of the business to a few favored retainers of the court. Of course the weight of such fees rests finally on the persons whose necessities make them the pawnbroker's customers. A power to license and regulate will not warrant the conferring of a license upon one person to carry on a business to the exclusion of all others. But a power to license and refuse licenses will. Logan v. Pyne, 43 Ia., 524; Burlington v. Davis, 48 Ia., 133. The legislature may give a city the right to grant an exclusive ferry license. Ibid.

1 State v. Doon, R. M. Charlt., 1. The fee in this case was of $1,000, and it was sustained, although it was manifestly imposed for the purposes of prohibition, and its payment would not give to the owner of the table the privilege of making use of it, which was illegal under another statute. The constitution of Arkansas of 1868 provided that "the general assembly shall tax all privileges, pursuits and occupations that are of no real use to soci ety; all others shall be exempt." Art. 10, § 17.

Two constitutional provisions were as follows:

"No political corporation shall impose a greater license than is imposed by the general assembly for state purposes."

"The regulation of the sale of alcoholic or spirituous liquors is declared a police regulation, and the general assembly may enact laws regulating their sale and use."

A parish had undertaken to require a higher license fee from a liquor seller than had the state, on the ground that such larger fee was as a police regulation. Held, that the second provision quoted did not relate to the sale of liquors but only to such regulations as the preservation of order, etc., may require, and that the action of the parish was not warranted. State v. Chase, 33 La. An., 287.

Under authority to a municipality to impose a license tax on a coffee house where theatrical plays are performed, the amount of the tax is a question of expediency and police regulation of which the municipal authorities are sole judges. A tax of $2,500 sustained. The keeper of the house has a right to require only that all who pursue the same business shall pay the same amount of tax. Goldsmith v. New Orleans, 31 La. An., 646.

of people is met by a resistance so steady and powerful as to render the law wholly ineffectual, when a heavy tax might lessen the evils and possibly in the end make the occupation un profitable. A belief that this might be the result has influenced many persons to favor a repeal of the prohibitory liquor laws, and the substitution therefor of laws for the regulation and taxation of the traffic. And this is held to be competent even when the business taxed is one the legislature is forbidden by the constitution to license; the tax not necessarily implying either protection to the business by the state or consent to its being carried on.1

1"The popular understanding of the word license undoubtedly is a permission to do something which, without the 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. Chilvers v. People, 11 Mich., 43, 49. Within this definition a mere tax upon the 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 the tax on his farm, render its cultivation illegal. The state has imposed the tax in each 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 a license. The state has provided for the taxation of a business which was found in existence, and the carrying on of which it no longer prohibits; and that is all.

"But it is urged that by taxing the business the state recognizes its lawful character, sanctions its existence and participates in its profits, all of which is within the real intent of the prohibition of license. The lawfulness of the business, if by that we understand it is no longer punishable, and is capable of constituting the basis of contracts, was undoubtedly recognized when the prohibitory law was repealed; but as the illegality of the traffic depended on the law, so its lawfulness now depends upon its repeal. The tax has nothing to do with it whatever. Now it is not claimed, so far as we are aware, that the repeal of the prohibitory law was incompetent; and, if not, mere recognition of the lawfulness of the traffic cannot make the tax law or any other law invalid. It is only the recognition of an existing and a conceded fact; and the courts could not refuse to recognize it if they would.

"The idea that the state lends its countenance to any particular traffic by

In general, however, prohibition is not the purpose in mind when license fees or similar burdens are imposed; but the state has in view either the regulation of that in respect of which the exaction is made, or it contemplates a revenue therefrom; and it may intend both regulation and revenue. The requirement of a license fee, as a condition to carrying on an occupation requiring regulation, cannot be objected to as a restraint of trade, however necessary may be the employment; taxing it seems to rest upon a very transparent fallacy. It certainly overlooks or disregards some ideas that must always underlie taxation. Taxes are not favors; they are burdens. They are necessary, it is true, to the existence of government; but they are not the less burdens, and are only submitted to because of the necessity. It is deemed advisable to make careful provision to preclude these burdens becoming needlessly oppressive; but it is conceded by all the authorities that under some circumstances they may be carried to an extent that will be ruinous to individuals. It would be a remarkable proposition, under such circumstances, that a thing is sanctioned and countenanced by the government, when this burden, which may prove disastrous, is imposed upon it, while on the other hand it is frowned upon and condemned when the burden is withheld. It is safe to predict that if such were the legal doctrine, any citizen would prefer to be visited with the untaxed frowns of government rather than with testimonials of approval, which are represented by the demands of the tax-gatherer.

"It may be supposed that some idea of special protection is involved when a business is taxed; taxation and protection being reciprocal. If the tax upon any particular thing was the consideration for the thing given to the owner in respect to it, this might be so; but the maxim of reciprocity in taxation has no such meaning. No government ever undertakes to tax all it protects. If the government were to levy only poll taxes, it would not be on the idea that it was to protect only the persons of its citizens, leaving their property open to rapine and plunder. In this state our taxes are derived mainly from real estate; but it has never been suggested that real estate was entitled to special consideration in consequence. In Great Britain, real estate pays a relatively insignificant portion of the taxes, although in the social and political staté it is more important than any other property. As a general fact the United States has not taxed real property, and though during the recent rebellion it taxed most kinds of business for war purposes, the number of subjects taxed has been several times reduced by legislation since, and may reasonably be expected to be further reduced hereafter. But the business taxed is no more protected than the business not taxed; and the fisheries which are favored by bounties are as much protected as either. All this is only an apportionment of taxation by the selection of subjects which, under all the circumstances, it is deemed wise and politic to subject to the burden. Whether a person in respect to his property or his occupation falls within the category of taxables, or not, is immaterial as affecting his claim to protection from the government. It is enough for him that the government has selected for itself its own subjects

and the legislature must be the judge when regulation is needful.1

A license is a privilege granted by the state, usually on payment of a valuable consideration, though this is not essential. To constitute a privilege the grant must confer authority to do something which without the grant would be illegal; for if what is to be done under the license is open to every one without it, the grant would be merely idle and nugatory, conferring no privilege whatever. But the thing to be done may be somefor taxation, and prescribed its own rules. It is his liability to taxation at the will of the government that entitles him to protection, and not the circumstance of his being actually taxed; and the taxation of a thing may be, and often is, when police purposes are had in view, a means of expressing disapproval instead of approbation of what is taxed.

"Taxes upon business are usually collected in the form of license fees; and this may possibly have led to the idea that seems to have prevailed in some quarters, that a tax implied a license. But there is no necessary connection whatever between them. A business may be licensed and yet not taxed, or it may be taxed and yet not licensed. And so far is the tax from being necessarily a license, that provision is frequently made by law for the taxation of a business that is carried on under a license existing independent of the tax.

"Such is the case where cities under proper legislative authority tax occupations that are carried on under licenses from the state. Ould v. Richmond, 23 Grat., 464; Napier v. Hodges, 31 Tex., 287; Cuthbert v. Conley, 32 Ga., 211; Wendover v. Lexington, 15 B. Monr., 258. The license confers the privilege, but it is not perceived why a privilege thus conferred should not be taxed as much as any other. The federal laws give us illustration of the taxation of illegal traffic. A case in point was that of the taxation of the liquor traffic in the state previous to the repeal of the prohibitory law; the federal law found a business in existence, and it taxed it without undertaking to give it any protection whatever. McGuire v. Commonwealth, 3 Wall., 387; Purvear v. Commonwealth, 5 Wall., 475." Youngblood v. Sexton, 32 Mich., 406. Compare State v. Hipp, 38 Ohio St., 129; Butzman v. Whitbeck, 42 Ohio St., 223; State v. Sinks, 42 Ohio St., 345. And see Richland County v. Richland, 18 N. W. Rep., 497. The Civil Damage Act, allowing the recovery of damages for injuries resulting from the sale of liquor, is not repugnant to a law taxing the sale. Kehrig v. Peters, 41 Mich., 475.

1 Brooklyn v. Breslin, 57 N. Y., 591, case of a city cartman.

2 Heise v. Columbia, 6 Rich., 404.

3 Chilvers v. People, 11 Mich., 43, 49; Home Ins. Co. v. Augusta, 50 Ga., 530. The imposition of a license tax is in the nature of a sale of a benefit or privilege to a party who would not otherwise be entitled to the same. Leavenworth v. Booth, 15 Kan., 627.

Where a municipal corporation has power to prohibit the doing of a thing and also the power to license the same thing to be done, the license fee de