shall be levied.1 The amount of the tax or license fee may be regulated by and estimated upon the income from the business taxed; or by the value of the property used in its prosecution,3 or upon the amount of business done; or it may be arbitrarily fixed by the taxing power,5 subject only to the restriction that the burden must rest equally upon all of a class.6 A license fee imposed for the purpose of regulation, however, should be limited to the necessary expense of issuing it, and the a license must give a bond conditioned for the payment of all fines and costs assessed for any violation of the provisions of a license law, is constitutional and valid. Kane v. State, 78 Ind. 103. It is no defense to a charge of failure to perform a condition of a license requiring the conspicuous posting of the peddler's name, residence, and number of his license upon his parcels or vehicle, that he has no vehicle and that the parcels which he sells are carried on his person. Com. v. Cusick, 120 Mass. 183. 1. See State v. Stephens, 4 Tex. 137; Society for Savings v. Coite, 6 Wall. (U. S.) 606. 2. Philadelphia Contributorship, etc. v. Com., 98 Pa. St. 48; Lehigh Crane Iron Co. v. Com., 55 Pa. St. 448; Goldsmith v. Augusta, etc., R. Co., 62 Ga. 468; People v. New York, 18 Wend. (N. Y.) 605; Burlington v. Putnam Ins. Co., 31 Iowa 102. Under the Texas statute of 1866, taxes are dependent upon the income derived from sales of goods made in excess of their cost after deducting expenses. Millar v. Douglass, 42 Tex. 288. 3. See Mayes v. Erwin, 8 Humph. (Tenn.) 290; Bank of Utica v. Utica, 4 Paige (N. Y.) 399; 27 Am. Dec. 21. The tax may be levied upon the amount of purchases made for the business. State v. Stephens, 4 Tex. 137; upon the number of vehicles belonging to the carrier. Goodwin v. Savannah, 53 Ga. 414. A license tax on bakers may be regulated by the weight of the bread, but an ordinance regulating the weight and price of bread is unconstitutional. Mobile v. Yuille, 3 Ala. 137. 4. See Albertson v. Wallace, 81 N. Car. 479; Walker v. Springfield, 94 Ill. 364; Rome v. Mc Williams, 52 Ga. 251; Berks County, v. Bertolet, 13 Pa. St. 523; Exp. Hurl, 49 Cal. 557; Western Union Tel. Co. v. State, 55 Tex. 314; Porter v. Rockford, etc., R. Co., 76 Ill. 561; Ould v. Richmond, 23 Gratt. (Va.) 464; 14 Am. Rep. 139. As upon the gross amount of sales, Paddleford v. Savannah, 14 Ga. 438; Pearce v. Augusta, 37 Ga. 597. In Harness v. Williams, 64 Miss. 600, it was held that in estimating the value of a merchant's stock for the purpose of determining the amount of his privilege tax, cotton taken from his customers for goods sold by him to them is not to be estimated. Interstate Commerce.-An occupation tax imposed on a telegraph company, which graduates the tax according to the business done, regardless of a distinction between business done wholly within the state and business done in part without the state, is free from the objection that it regulates or obstructs interstate commerce. Western Union Tel. Co. v. State, 55 Tex. 314. 5. See Wynne v. Wright, 1 Dev. & B. (N. Car.) 19; Cowles v. Brittain, 2 Hawks (N. Car.) 204; Moseley v. Tift, 4 Fla. 402; State v. U. S., etc., Express Co., 60 N. H. 219. 6. Sacramento v. Crocker, 16 Cal. 119; Cutliff v. Albany, 60 Ga. 597; Kniper v. Louisville, 7 Bush (Ky.) 599; Exp. Marshall, 64 Ala. 266; Police Jury v. Cochran, 20 La. Ann. 373; State v. King, 21 La. Ann. 261; East St. Louis v. Wehrung, 46 Ill. 392. Though taxes must be uniform throughout the district levying them, they need not be the same throughout different districts, and the fact that the same license fee is not required by all cities in a state, is no valid objection. Wiley v. Owens, 39 Ind. 429. A law imposing a smaller license tax on proprietors of bars and drinking saloons kept on steamboats, than upon the owners of bars kept on land, is not unconstitutional. State v. Rolle, 30 La. Ann. 991; 31 Am. Rep. 234. An occupation tax, rated according to the population of the community where the business is transacted, is not unconstitutional. Texas Banking, etc., Co. v. State, 42 Tex. 636. See also additional labor of officers and expenses thereby incurred; 1 though it may be made sufficiently high to produce a fund with which to enforce regulations adopted to restrain the improper exercise of the pursuit.2 b. UPON WHOM IMPOSED.-Each member of a firm is not liable for the tax imposed upon the business transactions, unless the tax is personal, when the tax must be paid by everyone following the vocation. A person paying a tax on one business, who adds to his occupation another, even though a kindred business, may be liable to double taxation. But where the one business is a necessary or ordinary incident of the other, payment of the tax upon the principal business will suffice. Ex p. Marshall, 64 Ala. 266; State v. Schlier, 3 Heisk. (Tenn.) 281. 1. License Fee.-St. Louis v. Boatmen's Ins., etc., Co., 47 Mo. 150; Mestayer v. Corrige, 38 La. Ann. 707; Collins v. Louisville, 2 B. Mon. (Ky.) 134; Ash v. People, 11 Mich. 347; 83 Am. Dec. 740; Cincinnati . Bryson, 15 Ohio 625; 45 Am. Dec. 593; Johnson v. Philadelphia, 60 Pa. St. 445. And see Charleston v. Rogers, 2 McCord (S. Car.) 495; Baker v. Panola County, 30 Tex. 86. 2. Smith v. Madison, 7 Ind. 86; Carter v. Dow, 16 Wis. 298; Fire Department v. Helfenstein, 16 Wis. 136. And see Allerton v. Chicago, 9 Biss. (U. S.) 552. In Johnson v. Philadelphia, 60 Pa. St. 445, it was held that the imposition of a reasonable charge for a license as a police regulation is valid, although its incidental operation augments the receipts into the treasury. In St. Paul v. Colter, 12 Minn. 41; 90 Am. Rep. 278, it was held that proof of the amount of license fee reasonably necessary to regulate the business, is not admissible in a prosecution for violating an ordinance imposing a fee. 3. See Carter v. State, 60 Miss. 459, where the tax was imposed upon the business of keeping a restaurant. In Savannah v. Hines, 53 Ga. 616, the tax was imposed on the practice of the law. 4. As sometimes in the case of practitioners at law. Jones . Stallworth, 44 Ala. 657. See also Long v. State, 27 Ala. 32; Stokes . Prescott, 4 B. Mon. (Ky.) 37. But see Ex p. Butin, 28 Tex. App. 304, where the peddler's tax was imposed upon "every person or firm who peddles." In Meyer v. Larkin, 3 Cal. 403, it was held that a license tax upon a foreign miner employed by one of a part nership to work in mines belonging to the firm, was a charge upon the employer, and not upon the firm. Agents. As a personal privilege, the tax is imposed upon agents. Taylor v. Ashby, 3 Mont. 248. See Temple v. Sumner, 51 Miss. 13; 24 Am. Rep. 615. 5. Jacko v. State, 22 Ala. 73; Kelly 7. Dwyer, 7 Lea (Tenn.) 180; State v. Holmes, 28 La. Ann. 765; 26 Am. Rep. 110. A merchant who carries on a retail and also a wholesale business is liable to the tax imposed on both. New Orleans v. Koen, 38 La. Ann. 328. A tobacco dealer who takes out a license as a storager and also as a tobacco auctioneer, but charges commissions on the amount of sales as well as other charges, must also obtain a license as a commission merchant and pay the tax assessed thereon. Neal v. Com. 21 Gratt. (Va.) 511. Under the license of a retail merchant, a person cannot sell drugs, where a different license is required from druggists. State v. Holmes, 28 La. Ann. 765; 26 Am. Rep. 110. 6. Griffin v. Powell, 64 Ga. 625. One who pays a privilege tax for running a livery stable, is not liable for the tax levied upon the privilege of running hacks, buggies, etc. Bell v. Watson, 3 Lea (Tenn.) 328; Williams v. Garignes, 30 La. Ann. 1094. A bookseller cannot be compelled to pay an additional privilege tax imposed on keepers of second-hand goods because he deals in old books. Eastman v. Chicago, 79 Ill. 178. In Police Jury v. Marrero, 38 La. Ann. 896, it was held that a retail dealer whose ordinary license is five dollars, but who combines the sale of liquor in less quantities than one pint, for which a license of fifty dollars is required, can c. WHERE IMPOSED.-Occupation and privilege taxes may be said to be local rather than general,1 and are not to be imposed on occupations or privileges carried on outside the limits of the taxing district. An apparent exception may be said to exist in the case of licenses imposed under the police power; as, for example, for the regulation of the liquor traffic in immediate proximity to the territorial limits of the district or municipality.3 The fact that all the taxes required by law have been paid in another state or district, does not relieve a business from taxation in the place where it is carried on.4 A business is not taxable in two different districts, however, where it is managed and the principal part of its transactions is carried on in one, though some of its enterprises extend incidentally into the other.5 4. Collection (See also supra, this title, Collection).-Occupation and privilege taxes are imposed usually in the form of license fees, the payment of which may be made a condition precedent to the issue of the license, or the beginning of the exercise of the occupation or privilege." only be required to pay a total license of fifty dollars. 1. Youngblood v. Sexton, 32 Mich. 406; 20 Am. Rep. 654; Com. v. Stodder, 2 Cush. (Mass.) 562; 48 Am. Dec. 679; Pleuler v. State, II Neb. 547; Bates v. Mobile, 46 Ala. 158; Minor v. Fredonia, 27 N. Y. 155; Edenton v. Capehart, 71 N. Car. 156; Capella v. Carradine, 19 La. Ann. 305. And see State v. Hibernia Ins. Co., 38 La. Ann. 465; State v. Charleston, 2 Spears (S. Car.) 623. 2. Fisher v. Rush County, 19 Kan. 414. But a law imposing a tax on all articles of trade or commerce sold in a city, includes sales by agents made out of the city and state, but delivered from a store in the city. Shriver v. Pittsburg, 66 Pa. St. 446. 3. Falmouth v. Watson, 5 Bush (Ky.) 660; Com. v. Stodder, 2 Cush. (Mass.) 563; 48 Am. Dec. 679; Pleuler v. State, 11 Neb. 547. And see Scott v. Robinson, 20 Gratt. (Va.) 661. Such regulation is permissible even though impositions for regulation are also imposed in the district in which the pursuit is carried on. The legislature may, for police purposes, prescribe the limits of municipal bodies, enlarging or contracting them at pleasure. Chicago Packing, etc., Co. v. Chicago, 88 Ill. 221; 30 Am. Rep. 545. 4. See Clark v. Mobile, 67 Ala. 217; Mason v. Lancaster, 4 Bush (Ky.) 406; Kip v. Paterson, 26 N. J. L. 298; Capella v. Carradine, 19 La. Ann. 305. The payment of taxes due in the home state of a merchant, does not authorize him to sell his goods in other states free of taxation. Ex p. Thornton, 12 Fed. Rep. 538. 5. St. Charles v. Nolle, 51 Mo. 122; II Am. Rep. 440; Com. v. Stodder, 2 Cush. (Mass.) 562; 48 Am. Dec. 679; Capella v. Carradine, 19 La. Ann. 305. Authority to impose a license tax upon all owners of carts, etc., using the paved streets of the city, does not authorize the imposition of a tax on wagons, etc., owned by non-residents of the city, and used occasionally in carrying goods through it to an adjoining town. Bennett v. Birmingham, 31 Pa. St. 15. 6. Sights v. Yarnalls, 12 Gratt. (Va.) 292; Cincinnati v. Bryson, 15 Ohio 625; 45 Am. Dec. 593. 7. Bancroft 7. Dumas, 21 Vt. 456; Alexander v. O'Donnell, 12 Kan. 608; Doran v. Phillips, 47 Mich. 228; State v. Holmes, 28 La. Ann. 765; 26 Am. Rep. 110; License Tax Cases, 5 Wall. (U.S.) 462; Brooklyn v. Breslin, 57 N. Y. 591; Com. v. Byrne, 20 Gratt. (Va.) 165. A statute requiring the payment of a license tax as a condition precedent to engaging in certain occupations, but permitting the tax on other occupations to be paid quarterly, and permitting still other occupations to be pursued without a license, is not unconstitutional. Fahey v. State, 27 Tex. App. 146; 11 Am. St. Rep. 182. Authority may be given to collect a tax or a license fee by an ordinary action at law; 1 and fines and penalties may be imposed and collected for violation of the license,2 or for acting without a license. The legislature may make it a criminal offense for any 1. Los Angeles v. Southern Pac. R. Co., 61 Cal. 59; Sacramento v. Crocker, 16 Cal. 119; Stokes 7. New York, 14 Wend. (N. Y.) 87; Tarde v. Benseman, 31 Tex. 277; Aulanier v. Governor, i Tex. 653. But, unless authorized by statute, a civil action cannot be maintained to recover the amount of the license. People v. Craycroft, 2 Cal. 243; 56 Am. Dec. 331; People v. Raynes, 3 Cal. 366; Santa Cruz v. Spreckels, 57 Cal. 133. But see Texas Banking, etc., Co. v. State, 42 Tex. 636. 2. Beall v. State, 4 Blackf. (Ind.) 110; Com. v. Cusick, 120 Mass. 183; Brooklyn v. Breslin, 57 N. Y. 591; State v. Hayne, 4 S. Car. 403; Tarde v. Benseman, 31 Tex. 277; Archer v. State, 9 Tex. App. 78. And see Sterne v. State, 20 Ala. 43. In Drexel v. Com., 46 Pa. St. 31, it was held that a statute imposing a tax upon brokers on account of their receipts from commissions, discounts, etc., and requiring them to make returns to the auditor general, imposes a duty upon them to keep such accounts as will exhibit their receipts, and a failure to keep such accounts and make return, is a sufficient ground for the imposition of the penalty imposed by the act. The penalty is incurred by each and every neglect. Com. v. Cooke, 50 Pa. St. 201. Suits for penalties should be prosecuted in the name of the state, Aulanier v. Governor, I Tex. 653, unless it is otherwise provided by statute. See Higby v. Fishbourne, 5 Ill. 165; Wallack v. New York, 3 Hun (N. Y.) 84. The process required in cases of suits for a penalty incurred by violating an ordinance, is sufficient, if it sets out the substance of the ordinance and the nature of the offense charged. Kip . Paterson, 26 N. J. L. 298. Burden of Proof. The state should make out a prima facie case by showing everything necessary to make out the right to recover the tax. See Weaver v. State, 89 Ga. 639; State v. Hirsch, 45 Mo. 429; State v. Richardson, 45 Mo. 575. But in an action for a penalty for acting without a license, it is not necessary to establish the fact that the accused had no license. This will be taken to be true unless disproved. Smith v. Adrian, 1 Mich. 495. See also Sharp v. State, 17 Ga. 290. Where the amount of a tax is variable at the will of the proper municipal officers, it is not a matter of judicial knowledge; and an indictment or information for pursuing the business without the payment of the tax, should allege, and the proof establish, the amount which had been fixed. Archer v. State, 9 Tex. App. 78. 3. State 7. Hayne, 4 S. Car. 403; Rome v. McWilliams, 52 Ga. 251; Chilvers v. People, 11 Mich. 43; Carr v. State, 5 Tex. App. 153; Harris v. State, 4 Tex. App. 131; Tonella v. State, 4 Tex. App. 325. The penalty may be a double tax. State v. Manz, 6 Coldw. (Tenn.) 557 The failure to obtain a license for acts which were misdemeanors at common law, leaves the party as he would have been at common law-a public wrongdoer subject to indictment and punishment. People v. Raynes, 3 Cal. 366. Gaming debts are not legalized by legislative acts permitting gaming houses to be licensed. The license simply operates as a permission, and removes the misdemeanor at common law, but does not change the character of the contract. Carrier v. Brannan, 3 Cal. 328. Forfeiture of Goods.-In Virginia, judgment for the forfeiture of the goods used may be given on presentment and information. Com. v. Collins, 9 Leigh (Va.) 666. A statute requiring the forfeiture of goods carried for sale without a license, does not apply to goods forwarded from without the state, upon the order of a purchaser, though such order was procured through an agent of the sellers who was unlawfully traveling and offering goods for sale. Burbank v. McDuffee, 65 Me. 135. person subject to an occupation tax to pursue such occupation without first paying the tax.1 Power in any tribunal, body, or officer to issue a license and require a tax to be paid, carries with it the right to receive payment, unless a different disposition of the fee is provided for.2 XXI. LOCAL ASSESSMENTS-1. Nature and Purpose-Distinguished from Taxation Generally.-Local or special assessments are levied by virtue of an exercise of the taxing power,3 but, in many respects, differ from general taxes levied for governmental or municipal purposes. They are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and are governed by principles which do not apply 1. Cincinnati V. Buckingham, 10 Ohio 257; White v. Kent, 11 Ohio St. 550; Shelton v. Mobile, 30 Ala. 540; 68 Am. Rep. 143; Huntington v. Cheesbro, 57 Ind. 74; Languille v. State, 4 Tex. App. 312; St. Louis v. Sternberg, 69 Mo. 289; Chilvers v. People, II Mich. 43; Mork v. Com., Bush (Ky.) 397; Stewart v. Potts, 49 Miss. 749; State v. Hayne, 4 S. Car. 403; Com. v. Byrne, 20 Gratt. (Va.) 165. And if a statute enjoins an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the legislative injunction. Keller v. State, 11 Md. 526; 69 Am. Dec. 226. An information or an indictment for violating a license, or for acting without a license, must allege facts showing that the accused had engaged in the prohibited pursuit, and that there was a violation or absence of the license. See Crews v. State, 10 Tex. App. 292; Alcott v. State, 8 Blackf. (Ind.) 6; Bacon v. Wood, 3 Ill. 265; Sterne v. State, 20 Ala. 43; Prigmore v. Thompson, Minor (Ala.) 420; May v. State, 9 Ala. 167; State v. Aikin, 7 Yerg (Tenn.) 268; Greer v. Bumpass, Mart. & Y. (Tenn.) 94; Cousins v. Com., 19 Gratt. (Va.) 807; Com. v. Fox, 10 Phila. (Pa.) 204; Com. v. Smith, 6 Bush (Ky.) 263; Com. v. Dudley, 3 Metc. (Ky.) 221; Mork v. Com., 6 Bush (Ky.) 397; State v. Willis, 37 Mo. 192; State v. Powell, 10 Rich. (S. Car.) 373; Com. v. Brouckheimer, 14 Gray (Mass.) 29; Com. v. Twitchell, 4 Cush. (Mass.) 74. 2. Williams v. Com., 13 Bush (Ky.) 304. A payment of the tax and the receipt therefor, amount in substance to a license, and confer on the party making the payment, a right to carry on the business for the time for which the tax has been paid, on complying with the law in other respects. Galloway v. Stewart, 49 Ind. 156; 19 Am. Rep. 677. 3. Burnett v. Sacramento, 12 Cal. 83; Emery v. San Francisco Gas Co., 28 Cal. 346; Taylor v. Palmer, 31 Cal. 240, 250; Palmer v. Way, 6 Colo. 106; Pueblo v. Robinson, 12 Colo. 593; Nichols v. Bridgeport, 23 Conn. 189; Hayden v. Atlanta, 70 Ga. 817; 7 Am. & Eng. Corp. Cas. 228; Adams County v. Quincy, 130 Ill. 566; Palmer v. Stumph, 29 Ind. 335; Bradley v. McAtee, 7 Bush (Ky.) 667; Municipality No. 2 v. White, 9 La. Ann. 446; Moale v. Baltimore, 5 Md. 314; Baltimore v. Greenmount Cemetery, 7 Md. 517; Baltimore v. Johns Hopkins Hospital, 56 Md. 1; Gould v. Baltimore, 59 Md. 378; Noonan v. Stillwater, 33 Minn. 198; Hennepin County v. Bartleson, 37 Minn. 343; Williams v. Detroit, 2 Mich. 560; McComb v. Bell, 2 Minn. 295; Williams v. Cammack, 27 Minn. 209; Garrett v. St. Louis, 25 Mo. 505; Newby v. Platte County, 25 Mo. 258; Harvard College v. Boston, 104 Mass. 482; State v. Fuller, 34 N. J. L. 227; State v. Newark, 35 N. J. L. 168; Brewster v. Syracuse, 19 N. Y. 118; New York Protestant Episcopal School v. Davis, 31 N. Y. 582; Litchfield v. Vernon, 41 N. Y. 123; People v. Brooklyn, 4 N. Y. 419, overruling 6 Barb. (N. Y.) 209; Matter of Van Antwerp, 56 N. Y. 265; Roosevelt Hospital v. New York, 84 N. Y. 112; Wilson v. Auburn, 27 Neb. 440; Scoville v. Cleveland, 1 Ohio St. 126; Hill v. Higdon, 5 Ohio St. 246; In re Washington Avenue, 69 Pa. St. 352; Hammett v. Philadelphia, 65 Pa. St. 146; Bishop v. Tripp, 15 R. I. 466; Roundtree v. Galveston, 42 Tex. 612; Allen v. Drew, 44 Vt. 175; Weeks v. Milwaukee, 10 Wis. 256; Soens v. Racine, 10 Wis. 271; Holton v. Milwaukee, 31 |