in a report that there was no such beneficent purpose as was stated by the court in that case, but that the purpose, if it had any, was to benefit the regular retail cigar merchants by suppressing a business of the same kind, but differing simply in the mode of the delivery of the cigars; or, in other words, to prevent honest competition in the cigar trade. The further reason upon which the court decided that case, viz., that it was more difficult to detect fraud when the milk was in the hands of the vender than when it was in the hands of the original producer, is also absent in this case. As the testimony shows, and as the model of the machine indicates, there is no more opportunity for fraud or deceit in selling cigars under this system than in selling them in any other way.

The case of Chicago v. Bowman Dairy Co., 234 Ill. 294. 123 Am. St. Rep. 100, 84 N. E. 913, 17 L. R. A., N. S., 684, 14 Ann. Cas. 700, also largely relied upon by the respondent, is practically the same kind of a case. Probably the circumstances of that 507 case bring it a little nearer to the case at bar. There an act was sustained which required dealers, selling cream and milk in bottles or glass jars, to have the capacity of the bottles or jars permanently indicated upon them; and prescribed a penalty for having in their possession bottles or glass jars of capacity less than that indicated on the outside; while the act did not apply to venders of milk through other agencies. But that case, as the other, was sustained on the doctrine of the police power of the state. Even so, we are doubtful if that case could be indorsed by this court under the decision in Spokane v. Macho, 51 Wash. 322, 130 Am. St. Rep. 1100, 98 Pac. 755, 21 L. R. A, N. S., 263, where it was held that, in an ordinance to regulate and license employment agencies, a section making it a misdemeanor for the keeper of an employment agency to make willful misrepresentations or to willfully deceive any person seeking employment, and take a fee for such employment, is unconstitutional, since it is not general and impartial in its operation, but operates upon one class to the exclusion of others in respect to a penal act common to all classes of business, and exceeds the reasonable limit of police regulations. In that case it was stated that it is a fundamental proposition that an ordinance must be fair in its terms, impartial in its provisions, and general in its application; citing Dillon on Municipal Corporations, 322, and McQuillan on Municipal Corporations, 193. It was also said: "When exercising its power to regulate a business, the municipality may classify subjects of legislation, but the law must treat alike all of a class to which it applies, and must bring within its classification all who are similarly situated or under the same condition"; citing State v.

Sheriff of Ramsey County, 48 Minn. 236, 31 Am. St. Rep. 650, 51 N. W. 112, where the court said: "The classification must be based on some reason suggested by a difference in the situation and circumstances of the subjects treated, and no arbitrary distinction between different kinds or classes of business can be sustained, the conditions being otherwise similar."

508 A much worse discrimination would be a discrimination between citizens of the same class engaged in the same business, where there is no reason suggested by a difference in the situation and circumstances of the subjects treated; for not only is the business in this case similar and identical, but it is purely and simply a difference in the mode of transacting the business, a mode which cannot possibly affect any principle or affect deleteriously the consumer or purchaser of the article sold. The general principle announced by Mr. Dillon in his work on Corporations, volume 1, section 322, seems to be specially applicable here: "As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal, and if done by another not so, ordinances which have this effect cannot be sustained. Special and unwarranted discrimination, or unjust or oppressive interference in particular cases, is not to be allowed. The powers vested in municipal corporations should, as far as practicable, be exercised by ordinances general in their nature and impartial in their operation.

The Montana legislature passed a law imposing a license tax of twenty-five dollars per quarter on every laundry business other than that of a steam laundry wherein more than one person was employed or engaged, and but fifteen dollars per quarter upon steam laundries. This law was sustained by the state court of Montana, but was afterward declared unconstitutional by that eminent jurist, Judge Knowles, of the United States circuit court, in Re Yot Sang, 75 Fed. 983. In the course of the opinion it was said: "Unless there is something so different in the conducting of a laundry by steam to that of the carrying on of that business by any other means, the law providing a different and more excessive license for the conducting of such business other than by steam is unequal and unjust. . . . . It may be said that the state may have wished to encourage steam laundries. If so, it had no right to do it at the expense of any person carrying on such business other than by means of steam. Such an argument would imply that it 509 was in the power of a state to force a man who conducted a business in one mode to abandon the same in order that he who conducted such business in another mode should be encouraged and built up."

....

The court concluded that, where the same business is conducted by different modes, it was unjust and in violation of the rule that each man should have the protection of equal laws, to place upon one a greater burden than upon the other. It is stated by counsel for appellant, as a matter of history, that, since the determination of this case in the United States court, it has been accepted as the law of the state, and that there have been no prosecutions under the statute. However this may be, we are satisfied that the decision of the United States court expresses the true principles governing such cases.

In the case of Covington v. Dalheim, 126 Ky. 26, 102 S. W. 829, the court, in passing upon the constitutionality of an act which imposes a tax on a certain class of grocers without the imposition of the same tax on others, held that the tax must apply to all grocers in the city, and that the act was unconstitutional, saying: "It is competent for the city to select any of the enumerated classes as subjects for license taxes. But it is not competent for it to tax some members of a class set apart by the legislature and not tax others of the same class."

And the principle announced in that case was reaffirmed by the court of appeals of Kentucky in the case of Read v. Graham, 31 Ky. Law Rep. 569, 102 S. W. 860. These last three cases which we have mentioned seem to be exactly in point on the question under discussion.

It is very well suggested by counsel for appellant that it would be just as reasonable to discriminate against a merchant who used a patent carrier for the transmission of money and change instead of a cash boy. The same rule might apply to a thousand different improvements that have a tendency to cheapen products by reason of the fact that 510 they are labor-saving machines, and do away with the necessity for so many clerks and employés. It is a legitimate business, and it makes no difference to the public whether the cigar is delivered by means of this automatic device or in the ordinary way. A strict or puritanical conception of the business of selling cigars might be that it was harmful to the health of the consumers, but the mode of selling them would not enter into that thought. Nor can the objection that it is particularly attractive be urged, for handsome girls are ordinarily employed around hotels for the purpose of selling cigars, and no doubt many susceptible men are induced to buy more cigars than they otherwise would by reason of the employment of this delivery agency.

Fairly considered, this seems to be a tax on invention, for invention in most cases, as in this, lessens the expense of the business, and thereby necessarily cheapens the product. This was one of the arguments advanced in favor of

sustaining the validity of this ordinance, viz., that the machine could be manufactured and operated for less money than a retail cigar store could be equipped and operated. It would seem that the reduction in price of an article of commerce would savor of the quality of a blessing rather than of a curse, when the welfare of the consumer is taken into consideration; and to hold otherwise would reverse the general rule that legal restraints may be imposed upon the few for the benefit of the many. The tendency of this kind of an income is to foster monopolies, for a monopoly exists when the manufacture and sale of any commodity is restrained to one or a certain number. It is said that it has three inseparable consequences-the increase of the price, the badness of the wares, the impoverishment of others. Hence, it naturally follows that monopolies are odious to the law, and the law will concern itself to restrain rather than to nourish them. If this ordinance can be sustained, there is no limit to the arbitrary, capricious or tyrannical imposition of taxes, and the constitutional guaranty that "no law shall 511 be passed granting to any citizen, class of citizens or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations," becomes a dead letter. Discrimination to the extent exhibited in this ordinance discourages enterprise, paralyzes progress, is a deprivation of liberty, and is entirely inconsistent with the true principles and the genius of our government. None of the cases cited, from either this or any other court, numerous as they are, go to the extent of discriminating against a simple mode of doing business, which is conceded to be lawful and fair, and which in no way involves the principles of police power or regulation.

The judgment will be reversed, with instructions to dismiss the action.

Rudkin, C. J., Crow, Mount and Parker, JJ., concur.

The Constitutionality of License Taxes is the subject of a note to Hager v. Walker, 129 Am. St. Rep. 249.

STATE v. MAMLOCK.

[58 Wash. 631, 109 Pac. 47.]

INDIANS Liquors.-A State Statute Prohibiting the sale of intoxicating liquors to Indians is a valid exercise of the police power. It does not, as applied to Indian citizens of the United States, violate the fourteenth amendment; nor does it, in the case of Indian wards of the United States, violate section 8 of article 1 of the federal constitution conferring authority on the general government. to regulate commerce with Indian tribes. (p. 1087.)

J. L. McMurray and A. B. Bell, for the appellant.
John Leo, for the respondent.

631 RUDKIN, C. J. An information was filed in the court below charging the defendant Mamlock with the crime of selling intoxicating liquor to an Indian, in violation of section 6288, Remington and Ballinger's Code. A demurrer to the information was sustained, 632 and from an order of dismissal the state has prosecuted this appeal. In support of the demurrer in the court below, and in support of the judgment here, the respondent contends that the legislative act, under which the information was filed, violates the fourteenth article of the amendments to the constitution of the United States, in so far as it prohibits the sale of intoxicating liquors to Indians who are citizens of the United States, and section 8 of article 1 of the constitution of the United States, conferring authority on the general government to regulate commerce with the Indian tribes, in so far as it prohibits sales to Indians who are wards of the United States under charge of an Indian agent or superintendent.

The validity of state laws prohibiting the sale of intoxicating liquors to certain classes of persons who are peculiarly liable to be injured morally or physically by their use, such as minors, persons already intoxicated, habitual drunkards, idiots, and insane persons, has so often been affirmed by the courts that the question is no longer an open one: Black on Intoxicating Liquors, sec. 42; 23 Cyc. 163. That the American Indian falls within the classes thus defined, whether he be a citizen of the United States or otherwise, is equally well settled: Black on Intoxicating Liquors, sec. 427; Territory v. Coleman, 1 Or. 191, 75 Am. Dec. 554; Territory v. Guyott, 9 Mont. 46, 22 Pac. 134; State v. Wise, 70 Minn. 99, 72 N. W. 843; People v. Bray, 105 Cal. 344, 38 Pac. 731, 27 L. R. A. 158; People v. Gebhard, 151 Mich. 192, 115 N. W. 54; Tate v. State, 58 Neb. 296, 78 N. W. 494.

As said by the supreme court of Minnesota in State v. Wise, 70 Minn. 99, 72 N. W. 843: "The statute is a police regulation. It was enacted in view of the well-known social condition, habits and tendencies of Indians as a race. While