Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

thing lawful in itself, and only prohibited for the purposes of the license; that is to say, prohibited in order to compel the taking out of a license. This is always the case where that which is licensed was not unlawful at the common law.

The grant of a license may be made by the state directly, or it may be made indirectly through one of the municipal corporations of the state. Of the indirect grant it is to be observed that a municipal corporation as such has no inherent power to grant licenses or exact license fees; it must derive all its authority in this regard from the state, and the power must come by direct grant and cannot be taken by implication.

Fees, when a tax. The terms in which a municipality is empowered to grant licenses will be expected to indicate with sufficient precision whether the grant is conferred for the purposes of revenue, or whether, on the other hand, it is given for regulation merely. It is perhaps impossible to lay down any rule for the construction of such grants that shall be general and at the same time safe; but as all delegated powers to tax are to be closely scanned and strictly construed, it would seem that when a power to license is given, the intendment must be that regulation is the object, unless there is something in the language of the grant, or in the circumstances under which it is made, indicating with sufficient certainty that the raising of revenue by means thereof was contemplated. If a revenue authority is what seems to be conferred, the extent of the tax, when not limited by the grant itself, must be under

manded by ordinance for the doing of such thing is not a tax but a price paid for the privilege, and funds raised from such fees may be applied to schools if the corporation shall so determine, though by the constitution municipal taxes are required to be applied to municipal purposes. East St. Louis v. Trustees of Schools, 102 Ill., 489.

1 How far the grant of a patent by the United States precludes state regulations in respect to the sale of the patented article, see Patterson v. Kentucky, 97 U. S., 501; Helm v. National Bank, 43 Ind., 167; Cranston v. Smith, 37 Mich., 309; Hollida v. Hunt, 70 Ill., 109; Crittenden v. White, 23 Minn., 24.

2 A daily charge of twenty-five cents for keeping a private butcher shop is a license tax, and the right to impose it exists only when there is express power granted to lay a revenue license tax. Delcambre v. Clere, 34 La. An., 1050. Neither a power to tax nor a power to regulate gives authority to license. Burlington v. Bumgardner, 42 Ia., 673.

stood to be left to the judgment and discretion of the municipal government, to be determined in the usual mode in which its legislative authority is exercised; but the grant of authority to impose fees for the purposes of revenue would not warrant their being made so heavy as to be prohibitory, thereby defeating the purpose.1

Where the grant is not made for revenue, but for regulation merely, a much narrower construction is to be applied. A fee for the license may still be exacted, but it must be such a fee only as will legitimately assist in the regulation; and it should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business which it covers. If the state intends to give broader authority, it is a reasonable inference that it will do so in unequivocal terms. But the limitation of the license fee to the necessary expenses will still leave a considerable field for the exercise of discretion when the amount of the fee is to be determined. The fee, of course, must be prescribed in advance, and when it cannot be

2

1 Ex parte Burnett, 30 Ala., 461; Craig v. Burnett, 32 Ala., 728; Burlington v. Insurance Co., 31 Ia., 102; Kitson v. Ann Arbor, 26 Mich., 325; Mason v. Lancaster, 4 Bush, 406; Kniper v. Louisville, 7 Bush, 599.

2 Freeholders v. Barber, 7 N. J., 64; Kip v. Patterson, 26 N. J., 298; State v. Hoboken, 33 N. J., 280; State v. Roberts, 11 Gill & J., 506; Boston v. Schaffer, 9 Pick., 415; Commonwealth v. Stodder, 2 Cush., 562; Mobile v. Yuille, 3 Ala., 137; Bennett v. Birmingham, 31 Pa. St., 15; Cincinnati v. Bryson, 15 Ohio, 625; Mays v. Cincinnati, 1 Ohio St., 268; Baker v. Cincinnati, 11 Ohio St., 534; Cincinnati Gas Light Co. v. State, 18 Ohio St., 237; Chilvers v. People, 11 Mich., 43; Ash v. People, 11 Mich., 347; Collins v. Louisville, 2 B. Monr., 134; St. Louis v. Boatman's Ins. & Trust Co., 47 Mo., 150; State v. Herod, 29 Ia., 123; Burlington v. Insurance Co., 31 Ia., 102; Ward v. Maryland, 12 Wall., 429; Dillon, Mun. Corp., § 609. The fact that the license fee is payable into the treasury of the municipality, provided the fee be a reasonable one, does not impress it with the character of a tax. Frankford, etc., R. R. Co. v. Philadelphia, 58 Pa. St., 119; Johnson v. Philadelphia, 60 Pa. St., 445; State v. Herod, 29 Ia., 123. Upon the question when a license fee imposed on the cars of street railways is a tax and when not, the following cases may be consulted with profit in connection with the Pennsylvania cases above cited: New York v. Second Avenue R. R. Co., 32 N. Y., 261; Louisville City R. R. Co. v. Louisville, 4 Bush, 478; S. C., 2 Withrow's Corp. Cases, 358.

It has been held in Arkansas that if a police regulation is directed to the end of raising a revenue, a court of equity may declare it void to the extent that it imposes fees which exceed reasonable costs and expenses. Taylor v Pine Bluff, 34 Ark., 603.

determined with any accuracy what the cost of regulation is to be: it must therefore be based upon the estimates, with more or less probability that the result will fail to come anything near a verification of the calculations. Moreover, in fixing upon the fee, it is proper and reasonable to take into account not the expense merely of direct regulation, but all the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed. In some cases the incidental consequences are much the most important, and, indeed, are what are principally had in view when the fee is decided upon. The regulation of the business of huckster, for instance, could seldom be troublesome or expensive, but that of the manufacture and sale of intoxicating drinks could not be measured by anything like the same standard. The business is one that affects the public. interest in many ways, and leads to many disorders. It has a powerful tendency to increase pauperism and crime. It renders a large force of peace officers essential, and it adds to the expenses of the courts, and of nearly all branches of civil administration. It cannot be questioned, therefore, if it is to be licensed by the public authorities, that it is legitimate and proper to take into the account all the probable consequences, or that the payment to be exacted should be sufficient to cover all the incidental expenses to which the public are likely to be put by means of the business being carried on. And all reasonable intendments must favor the fairness and justice of a fee thus fixed; it will not be held excessive unless it is manifestly something more than a fee or regulation.'

1 See Johnson v. Philadelphia, 60 Pa. St., 445; Ash v. People, 11 Mich., 347; Burlington v. Ins. Co., 31 Ia., 102; People v. Van Baalen, 40 Mich., 258; People v. Russell, 49 Mich., 617. In Burch v. Savannah, 42 Ga., 596, 598, the following remarks are made by McKay, J.: "The license fee for retailing liquors is in no proper sense a tax. Its object is not to raise revenue. It has for many years been thought that this business was one dangerous to the public peace and public morals, and it has been the uniform practice of the country to subject it to regulation, require license from some public functionary before it is engaged in, and to punish as a crime the pursuit of it without a license. The license is part of the public regulations of the country, and the fee is intended rather to prevent the indiscriminate opening of such establishments than to raise the revenue by taxation." And see Thomasson v. State, 15 Ind., 449; Commonwealth v. Byrne, 20 Grat., 165; Straub v. Gordon, 27 Ark., 625; Falmouth v. Watson, 5 Bush, 660. An ob

What may be licensed. Upon this subject it would not be safe to venture upon laying down any rule whatever, as one of limitation. Where revenue is the purpose, enough has been said in other parts of the present work to show that there is practically no limitation whatever. When the license is for regulation merely, the limitation is one of discretion and policy, and the question presented is, whether the business or occupation is one rendering special regulation important for any purpose of protection to the public, or to guard individuals against frauds and impositions. Employments the most necessary and commendable may sometimes need regulations for one or the other of these purposes, and so may the most dearly prized and most essential of fundamental rights or privileges. On this point no illustration could be more appropriate than that of the marriage relation. Marriage, between persons of suitable age and discretion, and under proper circumstances, should be esteemed a natural right; but what are suitable age and discretion, and what are the circumstances which should allow or forbid it? There are some cases in which it is as manifestly unfit and pernicious as in others it is proper and suitable; and obviously legislation is essential. In most countries the relation has always been subjected to regulations more or less stringent, among which has been the requirement of a license. Such a license has commonly for its purpose to prevent marriages between persons disqualified by immaturity or mental infirmity, or against the will of those standing in such relation to the parties as to render it proper and reasonable that they should be consulted.

Public amusements may also be forbidden with entire pro

jection to a license fee exacted of saloon-keepers, etc., that it is unequal and invidious, because the rest of the community are not required to pay similar fees, has no force. Durach's Appeal, 62 Pa. St., 491. Neither has an objection that those taxed are not assessed according to the business done. Youngblood v. Sexton, 32 Mich., 406.

To determine whether, by the terms "license and regulate" in a municipal charter, it was intended to authorize licenses for the purpose of raising revenue, the whole charter and the general legislation of the state upon the subject must be considered. Ex parte Frank, 52 Cal., 606; San Jose v. Railway Co., 53 Cal., 476. A license fee of $40 on hackmen, not being for expense, etc., of regulation, must be deemed a tax. Jackson v. Newman, 59 Miss., 385.

priety except when licensed, inasmuch as everything of that nature has some tendency to disorder and to increased necessity for police supervision. Perhaps those private amusements in which chance is one of the elements of interest, and which for that reason may beget a desire for gaming, and thus lead to disorders, might also be subjected to regulations of a like nature. The whole subject must be one which presents questions of legislative policy, rather than of strict law.2

Lotteries, where permitted, are usually licensed, and sometimes the state which grants the permission and receives a fee therefor permits its municipalities to exact a license fee also. This it has an undoubted right to do, unless the privilege was obtained from the state on the payment of a bonus, and under legislation which, in terms or by fair construction, would preclude any municipal regulations or exactions. Games of chance or hazard of every description, when made lawful at all, are usually made so under licensed regulations. And though a tax is sometimes levied for revenue upon the keepers of dogs, it is more usual to require the keeping to be licensed; the principal object being to have some person responsible for every animal of the kind that is protected by the law."

1See Sears v. West, 1 Murphy, 291; The Germania v. State, 7 Md., 1; Orton v. Brown, 35 Miss., 426; Mabry v. Tarver, 1 Humph.. 94; Hodges v. Nashville, 2 Humph., 61; Robertson v. Heneger, 5 Sneed, 257.

2 In Stevens v. State, 2 Ark., 291, it was held that the keeper of a billiard table could not be required to pay a fee as for a privilege. But this was put on the wholly untenable ground that it was unequal, because he was taxed on the table as property; and it was overruled by Washington v. State, 13 Ark., 572. And see Straub v. Gordon, 27 Ark., 625. The fee for the license of a place of amusement may well be graduated by the population of the town. State v. O'Hara, 36 La. An., 93.

3 Wendover v. Lexington, 15 B. Monr., 258. Where one holds a license from the state or county, he cannot, without legislation expressly permitting it, be compelled to take out a license in a city as a condition of doing business within the city limits. Robinson v. Franklin, 1 Humph., 156; Hannibal v. Guyott, 18 Mo., 515. But where the state law permits it, or where at the time of granting the county or state license a valid city ordinance required a city license, it may be exacted. See Napier v. Hodges, 31 Tex., 287; Independence v. Noland, 21 Mo., 394.

See Washington v. State, 13 Ark., 752; Lewellen v. Lockharts, 21 Grat., 570; Tanner v. Albion, 5 Hill, 121; State v. Hay, 29 Me., 457; State v. Freeman, 38 N. H., 426; Commonwealth v. Colton, 8 Gray, 488.

'See Carter v. Dow, 16 Wis., 298; Tenney v. Lenz, 16 Wis., 567; Blair v.

« ΠροηγούμενηΣυνέχεια »