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by what appears on the face of the agreement. It is often necessary to go behind, or outside of, the words of the contract - to look into the facts and circumstances which attended the making of it - in order to ascertain whether it was intended as a bona fide purchase and sale of the property, or was only colorable. And to justify a court in upholding such an agreement, it is not too much to require a party claiming rights under it, to make it satisfactorily and affirmatively appear that the contract was made with an actual view to the delivery and receipt of grain, not as an evasion of the statute against gaming, or as a cover for a gambling transaction.”? The power of the legislature to change this rule of construction, and to throw the burden of proof of the legality of the contract upon
the party asserting it, cannot be questioned. But it is not within the power of the court to change it, as was done by the Wisconsin court. For the effective prevention of this commercial gambling, this change is most needful, and with one other regulation, which will be suggested here, the prohibition can be made as effective as any prohibition of an act, which operates as a trespass only indirectly through its injurious effects. The other needful regulation would be the prohibition of all contracts of sale for future delivery, where the vendor has neither the actual, constructive, nor potential possession of the goods sold. A man has an absolute right, in his personal or representative capacity, to sell for future delivery any goods which he may have in his actual or constructive possession, or which he may have the present capacity of acquiring at some future day. One has the right to sell commodities which he has purchased from another for future delivery, or to sell a growing or other future crop, or the flour that his mill will grind during a stated period. But one can serve no useful end by selling goods for future delivery, goods which he does not own, and which he does not expect to possess. Such future contracts may therefore be prohibited. With the aid of this legislation, and by casting the burden of proof upon him who asserts the legality of these questionable or doubtful contracts, gambling in futures may be subjected to a more effective restraint.
1 Barnard v. Backhous, 52 Wis. 593. See, to the same effect, Cobb. 0. Prell, 15 Fed. Rep. 774.
§ 100. General prohibition of contracts on the ground of public policy. - In the preceding sections, we have given many cases of contracts, which are declared to be invalid, because their enforcement is contrary to public policy, for more or less satisfactory reasons. It only remains to be stated generally, that whenever a contract is made, having for its subject matter the commission of some offense against the law, the violation of some rule of morality, or the commission of some injury to the public health, the contract can not be enforced; and the courts will leave the parties to the contract and their property in the same position in which they are found. No right of action can be maintained, which has the invalid contract for a legal basis. It is neither possible nor advisable in this connection to refer to special cases ; the principle is the same in all cases, and the whole subject will be found discussed in all of the numerous treatises upon the law of contracts.
§ 101. Licenses. — It is the common custom in all of the towns and cities of the United States to require the payment of a certain sum of money as a license, for the privilege of prosecuting one's profession or calling. The license is required indiscriminately of all kinds of occupations, whatever may be their character, whether harmful or innocent, whether the license is required as a protection to
See, also, Benjamin on Sales, and Greeenhood on Public Policy.
the public or not. The one general object of such ordinances, as a whole, whatever other reasons may be assigned for the requirement of a license in any particular occupation, can only be the provision of a reliable source of revenue. It is one of “the ways and means” of defraying the current expenses. While the courts are not uniform in the presentation of the grounds upon which the general requirement of a license for all kinds of employments may be justified ; on one ground or another the right to impose the license has been very generally recognized. Whatever
1 Boston v. Schaffer, 9 Pick. 415; Com. v. Stodder, 2 Cush. 562; Mayor of New York v. 2nd Ave. R. R. Co., 32 N. Y. 261; Brooklyn v. Breslin, 57 N. Y. 591; State v. Hoboken, 33 N. J. L. 280; Muhlenbrinck v. Com., 42 N. J. L. 364 (36 Am. Rep. 518); Johnson v. Philadelphia, 60 Pa. St. 445; Bennett v. Borough of Birmingham, 31 Pa. St. 15; State o. Roberts, 11 Gill & J. 506; The Germania v. State, 7 Md. 1; Slaughter v. Com., 13 Gratt. 767; Wynne v. Wright, 1 Dev. & B. (N. C.) L. 19; Home Ins. Co. v. Augusta, 50 Ga. 530; Savannah v. Charton, 36 Ga. 460; Mayor v. Phelps, 27 Ala. 55; Mays v. Cincinnati, 1 Ohio St. 268; Cincinnati 0. Bryson, 15 Ohio, 625; Chilvers v. People, 11 Mich. 43; State v. Herod, 29 Iowa, 123; People v. Thurber, 13 Ill. 557; Cairo v. Bross, 101 III. 475; Kniper v. Louisville, 7 Bush, 599. The licensing of hucksters has been held to be unreasonable in Dunham v. Rochester, 5 Cow. 462; Muhlenbrinck v. Commissioners, 42 N. J. L. 364 (36 Am. Rep. 518); Frommer v. Richmond, 31 Gratt. 646; Barling v. West, 29 Wis. 307 (9 Am. Rep. 576); St. Paul v. Traeger, 25 Minn. 248 (33 Am. Rep. 462); Mays v. Cincinnati, 1 Ohio St. 268. License tax upon attorneys and physicians, held to be reasonable. Simmons v. State, 12 Mo. 268; State v. Hibbard, 3 Ohio, 33; State v. Proudfit, 3 Ohio, 33; State v. Gazley, 5 Ohio, 21; Savannah o. Charton, 36 Ga. 460; Young v. Thomas, 17 Fla. 169; Longville v. State, 4 Tex. App. 312. Licensing of bakers, reasonable. Mayor, etc., 0. Yuille, 3 Ala. 137. License tax on places of public amusement, reasonable. Charity Hospital v. Stickney, 2 La. Ann. 550; Seers et al. v. West, 1 Murphy, 291; Germania v. State, 7 Md. 1; Mabry v. Tarver, 1 Humph. 94. Reasonable to require license of hacks and draymen. Brooklyn o. Breslin, 57 N. Y. 591; Frankfort, etc., R. Co. v. Philadelphia, 58 Pa. St. 119; City Council v. Pepper, 1 Rich. L. 364; St. Louis v. Green, 70 Mo. 562; Cincinnati v. Bryson, 15 Ohio, 625; Commonwealth v. Matthews, 122 Mass. 60; St. Paul v. Smith, 27 Minn. 164 (38 Am. Rep. 296). Reasonable to prohibit peddling without license. Huntington o. Cheesbro, 57 Ind. 74; Ex parte Ah Foy, 57 Cal. 92; Temple v. Sumner, 51 Miss. 13. Reasonable to prohibit sale of milk without license. People v. Mulhol. land, 19 Hun, 548; 8. C. 82 N. Y. 324 (37 Am. Rep. 568); Chicago v. Bartree, 100 ml. 57. Imposing heavy license on auctioneers reasonable. Wiggins v. Chicago, 68 Ill. 372; Decorah v. Dunstan, 38 Iowa, 96; Fretwell o. Troy, 18 Kan. 271. Licensing of liquor trade. State v. Cassidy, 22 Minn. 312 (21 Am. Rep. 767); Bancroft v. Dumas, 21 Vt. 456; State v. Brown, 19 Fla. 563; Lewellen v. Lockhardts, 21 Gratt. 570; Hirsh 0. State, 21 Gratt. 785; Wiley v. Owens, 39 Ind. 429; Pleuler v. State, 11 Neh. 547; State v. Harris, 10 Iowa, 441; Hammond v. Haines, 25 Md. 541; Trustees 0. Keeting, 4 Denio, 341; Town Council v. Harbers, 6 Rich. L. 96; State v. Plunkett, 3 Harr. (N. J.) 5; Burckholter v. McConnellsville, 20 Ohio St. 308; State v. Sherman, 20 Mo. 265; State ex rel. Troll 0. Hudson, 78 Mo. 302; Gunnarssohn v. Sterling, 92 Ill. 669; East St. Louis v. Wehrung, 46 Ill. 392; Hill v. Decatur, 22 Ga. 203; Young. blood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654).
refinements of reasoning may be indulged in, there are but two substantial phases to the imposition of a license tax on professions and occupations. It is either a license, strictly so-called, imposed in the exercise of the ordinary police power of the State, or it is a tax, laid in the exercise of the power of taxation. In many cases it becomes exceedingly important to determine under which power the particular license is imposed.
In preceding sections, it has been explained how the right to pursue the ordinary callings of life exists independently of government, and the pursuit of them can only be so far restrained and regulated, as such restraint and regulation may be required to prevent the doing of damage to the public or to third persons. Where the calling is not dangerous to the public, either directly or incidentally, it cannot be subjected to any police regulation whatever which does not fall within the power of taxation. But those occupations which require police regulation, because of their peculiar character, in order that harm might not come to the public, can be subjected to whatever police regulation may be necessary to avert the threatened danger. Among other measures that would be justifiable in such cases, would be a more or less rigid police supervision of those who may be permitted to pursue the calling. Hence, it would be lawful and constitutional for the State or town to require all those, who follow such a vocation, to take out a license. On this principle, attorneys, physicians, druggists, engineers and other skilled workmen may be required to procure a license, which would certify to their fitness to pursue their respective callings, in which professional skill is most necessary, and in which the ignorance of the practitioner is likely to be productive of great harm to the public, and to individuals coming into business relations with them. So also, the licensing of dramshops, green groceries, hackmen and the like, is justifiable, in order that these callings may be effectually brought within the police supervision, which is necessary to prevent the occupation becoming harmful to the public. The dramshop is likely to gather together the more or less disreputable and dangerous classes of society ; the green grocers are likely, if not honest, to sell to their customers meat that is stale and unhealthy; and the hackmen are inclined, if not watched by the public authorities, to practice frauds upon the public against which they cannot very well protect themselves without police aid. In the regulation of all such occupations, it is constitutional to require those, who apply for a license, to pay a reasonable sum to defray the expense of issuing the license and maintaining the police supervision. What is a reasonable sum must be determined by the facts of each case; but where it is a plain case of police regulation, the courts are not inclined to be too exact in determining the expense of procuring the license, as long as the sum demanded is not altogether unreasonable. The evils growing out of some occupations may be such that their suppression can only be attained to any appreciable degree by the imposition of a restraint upon the pursuit of such callings or kinds of busi