« SebelumnyaLanjutkan »
Tracy V. Ginzberg, 75 N. E. 637, 638, 189 "A license fee' is understood to be a Mass. 260, 285.
charge for the privilege of carrying on a
business or occupation, and is not the equivo As a mere receipt
alent or in lieu of a property tax." The conUnder Pen. Code 1895, art. 112, penaliz- tract arrangements for the payment to a muing the pursuit of a profession without a nicipality of a “license fee” on each street "license" therefor, a receipt for the occupation car, modified as to the amount of such fees tax is, in the absence of a statutory provi- under the authority of a statute accepted by sion as to what the license shall contain, a the street railway company, stating that such "license.” Fouts v. State, 101 S. W. 223, 224, fees should be taken "in full satisfaction for 51 Tex. Cr. R. 3.
the use of the streets or avenues," does not The word "license,” in the Chicago exempt the company from the tax imposed, Wheel Tax Ordinance, which requires owners under Laws N. Y. 1899, c. 712, on its franof automobiles to obtain a license or permit chise. People of State of New York ex rel. to use a vehicle in the city in addition to the Brooklyn City R. Co. v. State Board of Tax license or permit obtained from the Secretary Com’rs, 25 Sup. Ct. 713, 714, 199 U. S. 48, of State, as required by the Motor Vehicle 50 L. Ed. 79. Law, is used in the sense of tax, and the is
The registration fee of $2, required by suance of the license thereunder amounts to St. 1903, p. 507, c. 473, § 1, providing for the no more than the giving of a receipt showing registration of automobiles, is a “license fee,” that the annual tax imposed by the ordinance and not a tax for revenue. Commonwealth has been paid. Ayres v. City of Chicago, 87
v. Boyd, 74 N. E. 255, 256, 188 Mass. 79, N. E. 1073, 1076, 239 Ill. 237.
108 Am. St. Rep. 464. Under the statutes of Alabama all occu
A tax on the gross receipts of a street pation taxes are evidenced by a receipt, railroad company imposed as a condition to which is called a "license,” and the fact that the exercise of the special privileges grantan act imposing a tax on the occupation of ed it is not a property tax but is a "license an emigrant agent called the receipt evidenc- fee." North Jersey St. Ry. Co. v. Jersey City, ing the payment thereof a license did not ren- 67 Atl. 33, 34, 74 N. J. Law, 761. der it any less a tax on the occupation for
Kendrick v. State, 39 South, 203, Under Tax Law, § 46, providing that 204, 142 Ala. 43.
where a city has assessed a tax upon the
special franchise of a corporation, and it apAssignment distinguished
pears that the corporation has paid to the See Assignment.
city any sum based on a percentage of gross As property
earnings or other income or any license fee
or any sum of money on account of such See Property.
special franchise, which payment was in the Regalate distinguished
nature of a tax, such payment shall be deTo "license” means to permit, to give au- 'ducted from the franchise tax assessed, thority, to conduct or carry on.
It differs where a subway company, under the condifrom "regulate" in that regulate means to tions of its franchise, was compelled to furprescribe the manner in which a thing may nish free, to the city, space in its subways, be conducted. Pacific University v. Johnson, the giving of this free space was not a "li84 Pac. 704, 706, 47 Or. 448.
cense fee"; the term "license fee" not mean
ing anything else than a payment in cash. Tax distinguished
Consolidated Telegraph & Electrical Subway See Tax-Taxation.
Co. v. Metz, 104 N. Y. Supp. 922, 923, 119 As vested right
App. Div. 835. See Vested Right.
LICENSE, REGULATE, AND RE
STRAIN LICENSE FEE
See, also, Regulate and Restrain. A "license fee" is a sum demanded of an individual in return for the grant of a The grant of power to "license, regulate, privilege which he did not previously possess, and restrain” shops for the sale of intoxiand is not a tax, as ordinarily understood, cating liquors is sufficiently broad to waras a contribution demanded by a sovereign rant a city ordinance requiring applicants from his subjects in return for his protection. for such license to procure the written asThe power to enforce the terms of a treaty sent of a majority of the property owners with the Choctaw and Chickasaw Indians in the immediate district. City of Baton that no person shall expose goods for sale Rouge v. Butler, 42 South. 650, 653, 118 La. without a permit is a duty imposed on the 73. executive department of the government, and in the discharge of that duty it is not within LICENSE, REGULATE, AND TAX the jurisdiction of the courts to enjoin such The new charter of the city of Baltimore action. Zevely v. Weimer, 82 S. W. 941, 943, (section 6), authorizing the mayor and coun5 Ind. T. 646.
cil “to license, tax, and regulate all busi
nesses, trades, avocations or professions," the license fee herein provided"; requires conferred on the city the power to impose a any person doing such act to procure a licharge on commission merchants for the priv- cense, paying therefor "a license fee of $150 ilege of selling in the city market; such per annum"; requires application for renewcharge being a tax for revenue, and not a als to be passed upon by the board of police license or regulation tax, Meushaw v. State, commissioners, and declares that the ordi71 Atl. 457, 459, 109 Md. 84.
nance and “the license herein imposed” are
enacted to regulate the business described. LICENSE TAX
The charter of the city and county of San As tax, see Tax-Taxation.
Francisco (article 2, c. 2, $ 1) authorizes the A "license tax” is one imposed on the board of supervisors to make all necessary privilege of exercising certain callings, pro- thorizes it to impose “license taxes,” but
police regulations; and subdivision 15 aufessions, and avocations, and, when collected, is a part of the general funds of a city, provides that no license taxes shall be imState ex rel. Smith v. Berryman, 127 s. w. posed upon one who, at any fixed place of 129, 132, 142 Mo. App. 373.
business, sells goods, etc., except such as re
quire permits from the board of police comEvery "license tax” is imposed for rais- missioners, as provided in this charter. Held, ing revenue or as a police regulation, or for that the ordinance was enacted solely for both purposes.
Johnson v. City of Great regulation, and not for revenue, and the liFalls, 99 Pac. 1059, 1060, 38 Mont. 369, 16 cense imposed was a "license tax” within Ann. Cas. 974.
subdivision 15, so that the board had no powA “license tax" is "either a license, strict- er to impose it, since, while a "tax," techly so called, imposed in the exercise of ordi. nically, only includes charges imposed for nary police power of the state, or it is a tax producing revenue, and not for purposes of laid in the exercise of the power of taxation. regulation under the police power, the term City Council of Montgomery V. Kelly, 38 "license tax," as used in the statutes and South. 67, 68, 142 Ala. 552, 70 L. R. A. 209, by the courts, includes license charges of 110 Am. St. Rep. 43 (citing Tied. Lim. Po. every character, whether imposed for revelice Power).
nue or police regulations, or both. John The words "license tax," used with ref- Rapp & Son v. Kiel, 115 Pac. 651, 652, 159
Cal. 702. erence to corporations exclusively, mean no more necessarily than a charge of some kind
LICENSED imposed upon them solely for their corporate privilege. Kaiser Land & Fruit Co. v.
See Duly Licensed. Curry, 103 Pac. 311, 344, 349, 155 Cal. 638.
LICENSEE The tax authorized by Sess. Laws 1902,
A "licensee" is one who goes onto the p. 73, c. 3, $ 65, called a "license tax," is, in land of another for his own purposes only. form of an excise, a tax on the business of Williams v. Belmont Coal & Coke Co., 46 S. foreign corporations levied for the purpose of E. 802, 806, 55 W. Va. 84. state revenue, and is not a property tax, and so does not violate the uniformity clause of
The terms "mere licensee" or "bare lithe Constitution. American Smelting & Re- censee” are often used as synonymous with fining Co. v. People ex rel. Lindsley, 82 Pac. “trespasser.” Pittsburgh, C., C. & St. L. R. 531, 533, 34 Colo. 240.
Co. v. Simons (Ind.) 76 N. E. 883, 886. The tax imposed by Act Ky. March 28,
A "mere licensee" is one who is clothed 1906, upon persons engaged in compounding, with no right and to whom no invitation has rectifying, adulterating, or blending distilled been extended but who is upon the premises spirits, is a "license or occupation tax," and of another by permission or acquiescence. not a property tax. Brown-Forman Co. v.
Norfolk & W. Ry. Co. v. Denny's Adm'r, 56 Commonwealth of Kentucky, 30 Sup. Ct. 578, S. E. 321, 328, 106 Va. 383. 580, 217 U. S. 563, 54 L. Ed. 883.
A person is a mere "licensee" where he An ordinance enacted by the board of was not on the premises by invitation exsupervisors of the city and county of San pressed or implied, nor for any business conFrancisco is entitled “An ordinance impos- nected with defendant nor in relation to any ing a license for the purpose of regulation business for which the freight house in which upon persons selling * malt
he was injured was used, but went there of or fermented liquors
his own volition, uninvited, concerning a tities of one quart or more, less than five matter which was personal to himself in gallons, when the same is contained in seal- which the defendant had no interest. Means ed packages, and not to be drunk on the v. Southern Cal. R. Co., 77 Pac. 1001, 1002, premises where sold, * requiring a per
144 Cal. 473, 1 Ann. Cas. 206. mit therefor.” The ordinance makes it un- A person is a "licensee" when he is on lawful to sell such liquors “without first hav- the land of others with their consent, exing obtained a permit therefor from the pressed or implied. If a person is a licensee, board of police commissioners, and paying he is rightfully on the landowners' premises,
Ann. Cas. 1913B, 517 (quoting and citing a debt or duty is due. A 'lien' is defined to be definition in Anderson v. State, 23 Miss. 459). a hold or claim as security for some debt or
A "lien” is a right by which a person is charge. At common law there could be no entitled to obtain satisfaction of a debt by lien without possession. It is therein definmeans of property belonging to the person in- ed as a right in one man to retain that which debted to him. Frick v. Hilliard, 95 n. c. is in possession and belonging to another. 117, 122.
In maritime law, liens exist independently
of possession, either actual or constructive; In the strict legal sense, a "llen" is a and in the courts of equity the term 'lien' is right in one person to detain that which is in used as syonymous with a charge or incumhis possession belonging to another until cer- brance upon the thing, where there is neitain demands of such person in possession ther jus in re nor ad rem, nor possession of are satisfied. In re Ransford, 194 Fed. 658, the thing.” Irrespective of whether the lien 660, 115 C. C. A. 560.
upon the funds impounded by the service of A “lien" is a holding or claim which one the summons of garnishment attaches before person has on the property of another as se- final judgment or not, the service of the sumcurity for a judgment or some charge or mons of garnishment so far places the funds debt out of that property. United States Oxfound in the hands of the garnishee (espeygen Co. v. Bernard A. Buge, 136 N. Y. Supp. cially when the money is paid into court, or 297, 301 (citing 5 Words and Phrases, p. in lieu thereof a dissolving bond given) into 4144); Meanor v. Goldsmith, 65 Atl. 1084, the custody and control of the court admin1086, 216 Pa. 489, 10 L. R. A. (N. S.) 342 istering the case that it will be entitled to (quoting definition in 2 Bouv. Law Dict. 226). hold and subject the fund, despite the sub
A “lien” is the right of the creditor to sequent bankruptcy of the defendant, if the take his debt out of a specified res, which, petition in bankruptcy be filed more than though it may be a changing fund, must nev | four months after such custody is obtained. ertheless be ascertained, since it is a prop- National Surety Co. of New York v. Mederty right, and could not be said to arise by lock, 58 S. E. 1131, 2 Ga. App. 665 (quoting a mere custom restricting a borrower's right 5 Words and Phrases, p. 4144). to use the money loaned to release certain
The “lien" given persons who have fursecurities from a former pledge, nor by a nished material for the construction of a promise to pay the creditor from a partic- vessel has been defined as “a tie hold or seular fund. Hotchkiss v. National City Bank curity,” or “a sort of proprietary interest of New York, 200 Fed. 287, 291.
springing from the nature of the transaction The term "lien," in a narrow technical and beneficial service rendered to the ship," sense, signifies a right by which a person in or as a “hold upon property specifically atpossession of personal property holds and taching thereto for the satisfaction of some detains it against the owner in satisfaction claim." Wight v. Maxwell, 4 Mich. 45, 55. of a demand. The term, however, has a
A bank holding notes of a depositor more extensive meaning, being used to denote a legal claim or charge on property, real which are due has the right to charge the or personal, for the payment of a debt or is not strictly a lien, within the meaning of
same to the depositor's account. Such right duty; every such claim or charge being still the bankruptcy law, but a right of set-off; a “lien,” though the property be not in the but it can be exercised only as to notes which possession of him to whom the debt or duty is due. It is a hold or claim which one
are due. Irish v. Citizens' Trust Co. of Utihas on the property of another as security ca, N. Y., 163 Fed. 880, 891. for some debt or charge and may exist inde- The word "lien" is inaptly applied to a pendent of possession. As in maritime law general deposit which is the property of the and in equity, the term is used as synony- bank itself, but can be properly applied to mous with a charge or incumbrance on the special specific deposits of chattels, choses in thing where there is neither jus in re nor ad action, valuables, etc. Wynn v. Tallapoosa rem, nor possession of the thing. In re Ma- County Bank, 53 South. 228, 236, 168 Ala. 469. her, 169 Fed. 997, 999 (citing 5 Words and Phrases, p. 4144 et seq.).
A right to a "lien" does not include the
right to every onerous burden which may "The term lien,' in a narrow and more be thought to be advantageous to the favortechnical sense, signifies the right by which led creditors. The burden sought to be ena person in possession of personal property forced must be something that can reasonholds and detains it against the owner in satisfaction of a demand; but it has a more ably be considered as naturally a part of extensive meaning, and in common accepta
the thing granted—the lien. But a lien on tion is understood and used to denote a le- real property is a thing entirely different and gal claim or charge on property, either real distinct from a personal obligation in the or personal, for the payment of any debt or form of a bond. The latter is not included duty. Every such claim or charge is still a in the former, and is, indeed, a totally differlien on the property, although the property be ent kind of security. Shaughnessy v. Amernot in the possession of him to whom the ican Surety Co., 71 Pac, 701, 138 Cal. 543.
3 WDS.& P.2D SEB.-9
Under Civil Damage Act (Code 1906, c. | ment of real estate, special liens thereon, and 32) $ 26, providing that if a landlord's prop- when work done or material furnished for erty be "seized or taken" for any fine, etc., the improvement of real estate is done or by reason of his tenant's unlawful acts, such may be furnished upon the employment of landlord may recover damages and costs, a a contractor, or other persons than the own"lien" upon a landlord's property, being de er, the lien shall attach to the real estate fined as a hold or claim which one has upon improved, for the amount of work done, or the property of another as a security for material furnished, unless the owner shows some debt or charge, does not constitute a that such lien has been waived in writing, "seizure or taking" of his property within or produces the sworn statement of the conthe meaning of the statute. Brown v. United tractor, or other person, at whose instance States Fidelity & Guaranty Co., 74 S. E. 868, the work was done, or material was furnish869, 70 W. Va. 613.
ed, that the agreed price or reasonable value The right of creditors of a mortgagor, thereof has been paid, the word “liens” is to dying without sufficient personal estate to be construed to mean, not the perfected and pay his debts, to sell the real property for recorded liens, but the inchoate or imperfect that purpose within three years after admin- liens, or claims arising by the mere furnishistration, as authorized by Code Civ. Proc. ssing of material' or the performance of labor. 2749, 2750, is a mere statutory power, and Green v. Farrar Lumber Co., 46 S. E. 62, not a "lien” on the lands, which would make 63, 119 Ga. 30. them necessary parties to a foreclosure ac- Lien Law (Consol. Laws 1909, C. 33) $ tion. Heidgerd v. Reis, 119 N. Y. Supp. 921, 17, providing that, if a lienor is made de923, 135 App. Div. 414.
fendant to a suit to enforce another lien, A contract with a subagent to solicit in- and plaintiff or such defendant has filed nosurance for commissions, stipulating that tice of pendency of the suit, the lien of such the general agent will advance him $25 per defendant is continued, does not extend to
William Bradley & Son week, and providing that all money collected municipal "liens.” by the subagent for premiums on policies v. Henry Huber Co., 131 N. Y. Supp. 388, 390, must be turned over to the general agent,
146 App. Div. 630. and that the subagent will repay the general The word "lien," in Comp. Laws, $ 5031, agent all sums advanced, said advances to giving a "lien" to warehousemen which shall constitute a lien against all commissions, ab- extend to all legal demands for storage solutely binds the subagent to repay all ads against the owner of the property, means a vances; the word "lien" meaning a claim general "lien,” and, where goods removed which one has on the property of another as without payment of charges are subsequenta security for a debt, contemplating that the ly stored, the warehouseman may retain advances constitute a debt. Straus v. Rosen- them for payment of the first charges. Kaufthal, 121 N. Y. Supp. 267, 269.
man v. Leonard, 102 N. W. 632, 139 Mich. Pub. St. 1901, c. 245, $ 28, provides that,
104. if a trustee is adjudged chargeable for any The “lien" given under Wilson's Rev. & personal property subject to mortgage, pledge, Ann. St. 1903, c. 3, 88 108, 110, providing that or other lien, the court may appoint a receiv, any person employed in feeding or herding
Section 29 provides that, if a trustee is any domestic animals shall, for the amount adjudged chargeable for any security for due for such feeding or herding, have a "lien" payment of money, or any chose in action on the animals, is similar to a lien under a upon which execution cannot be levied, the chattel mortgage. It may be foreclosed, and court may appoint a receiver. Section 30 the property sold to satisfy it. Crismon y. provides that the trustee may be adjudged Barse Live Stock Commission Co., 87. Pac. trustee for the value of any note, chose in 876, 877, 17 Okl. 117. action, etc., which he refuses to deliver to Where a deed provides that the grantee the receiver. The trustee held a check pay- shall assume and pay existing mortgages, able to himself and defendant, who trans- “liens," taxes, and claims of any and every ferred his interest to claimant, after service description, the assumption clause making of the writ with claimant's knowledge. Held, use of the general word “liens” includes not that the check was a chose in action, the only mechanics' liens but all kinds of "liens." possession of which was a "lien" within the Gage v. Cameron, 72 N. E. 204, 209, 212 Ill. statute, though defendant did not indorse the 146. check to him for collection, so that the trus
Assessment or tax tee was chargeable therefor, and a receiver
A lien is a hold or claim which one perwas properly appointed to collect it. Musgrove v. Goss, 72 Atl. 371, 373, 75 N. H. 208. security for some debt or charge. In the na
son has upon the property of another as a Under Civ. Code 1895, § 2801, subd. 2. ture of things, no tax or assessment can exas amended by the act of 1899 (Acts 1899, p. ist, so as to become a lien or incumbrance 33; Van Epps' Code Supp. & 6176), giving to upon real estate, until the amount thereof is mechanics, contractors, materialmen, and ascertained and determined. Gillmor v. Dale, persons furnishing material for the improve 75 Pac. 932, 934, 27 Utah, 372.
Where the owners of a tenement house, a claim against the vendors was not a valid on November 1, 1906, contracted to convey "lien" against the property, unless it appearthe same free from all incumbrances and vio-ed of record. Brown v. Gordon-Tiger Mining lations of the tenement house act (Laws 1901, & Reduction Co., 97 Pac. 1042, 1045, 44 Colo. p. 889, c. 334), and on May 25th had been 311. served with notice to install a water meter, Under a provision, in a certificate of prewhich was installed by the water department ferred stock in a corporation, that no morton October 8th, but the cost was not certified gage or "lien of any nature” should be placed until November 1st, nor the bill certified to upon the property of the company without the comptroller until December 13, 1906, the the unanimous consent of the preferred stockassessment therefor was not a lien on the holders, the words "lien of any nature” did premises, when conveyed on December 11th, not include the claims of general creditors, the words "lien or incumbrance" being used since a "lien” is something distinct from a to cover only a charge against the property claim and in the nature of a security. Fryer after it has been ascertained or determined. v. Wiedemann, 146 S. W. 752, 755, 148 Ky. Feder v. Rosenthal, 116 N. Y. Supp. 2, 4, 62 379, 39 L. R. A. (N. S.) 1011. Misc. Rep. 610.
As contractual lien Defendant vendors covenanted to pay
Under Civ. Code Prac. $ 62, subd. 3, reany assessment of a kind mentioned therein for the payment of which any lien existed quiring an action for the sale of real properJuly, 1899, on the lot conveyed; there being brance or charge, etc., to be brought in the
ty under a mortgage lien, or other incumthen no power to lay any such assessments, county in which the subject of the action, or and the land not being subject to any existing some part thereof, is situated, the words lien for such assessments. A valid assessment was thereafter laid under St. 1902, c. not embrace an attachment lien, but refer to
"lien, or other incumbrance or charge," do 527. Held, that the word "lien,” in defend- liens or charges created by contract or judgants' covenant, referred to the lien of an ex
ment. Hatton v. Rogers, 121 S. W. 698, 699, isting incumbrance, and was not to be ex
134 Ky. 840. tended to include the possibility of a future incumbrance being created by subsequent leg- Dower islation, and hence that the defendants were
Dower is not a "lien" of any kind, but an not bound to pay such subsequent assessment. estate. The fact that it is an incumbrance Campbell v. Haven, 97 N. E. 611, 612, 211 does not constitute it a lien. An incumbrance Mass. 121.
is not always a lien, though a len is always Tax liens held by the state of Minnesota an incumbrance. Wilson v. Wilson, 105 N. Y. are within the terms of Laws 1905, p. 459, Supp. 151, 153, 120 App. Div. 581. c. 305, $ 13, providing that it shall be joined as a party defendant whenever It has an in
Equitable lien terest in or "lien upon the land” in suit. In The term "lien" is used in equity in a re National Bond & Security Co., 104 N. W. broader sense than at law, and denotes any 678, 679, 96 Minn. 119.
right of a special nature over a thing, which
constitutes a charge or incumbrance upon it, Assignment
and may be enforced by proceeding against it, The right created by the assignment, as and to the existence of such a lien possession security, of one's expectancy in the estate of is not essential. An equitable lien is distinct his living ancestor, being a present equitable from the general title, and may exist separate charge, which, when the descent is cast, at from it, or both may be vested in the same once ripens into a "lien” on the property, is person. In re National Cash Register Co., within Bankr, Act July 1, 1898, c. 541, $ 67, 30174 Fed. 579, 581, 98 C. C. A. 425. Stat. 564, exempting from its operation and
A “lien," from a legal standpoint, empreserving all liens created by the bankrupt, bodies the idea of a deed or bond, and necesand therefore enforceable against the bank- sarily implies that there is something in exrupt after his discharge, especially where the istence to which it attaches. In equity there property did not come into the possession of
may be an agreement that there shall be a the assignee in bankruptcy, because not then lien upon a thing if and when it exists, but acquired by the bankrupt. Bridge v. Kedon, that agreement is not itself a “lien.” On 126 Pac. 149, 152, 163 Cal. 493, 43 L. R. A.
an equitable assignment of money to be earn(N. S.) 404.
ed in the future by the assignor, the assignee As claim or demand
acquires no "lien" on the money unless the A personal claim against a bankrupt's assignor has earned it. Cogan v. Conover estate does not constitute a "lien." Eason y.
Mfg. Co., 60 Atl. 408, 414, 69 N. J. Eq. 358. Garrison & Kelly, 82 S. W. 800, 801, 36 Tex. As estate Civ. App. 574.
See Estate. Where a contract for the sale of land containing a mine limited the application of
As interest in land $60,000 of the price to the payment of "liens," See Interest (In Property).