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For example, the keeping of saloons produces public evil in proportion to the number of low groggeries, which are allowed to be opened, and in any event the evil is lessened by reducing the number of saloons of all grades of respectability. One of the most effective modes of restraining and limiting the number of saloons in any particular town or city, is to require a heavy license of the keepers of them. Such a license may, probably, be justified on the ground that, since the prosecution of the business entails more or less injury upon society, it is but just that those who make profit out of the traffic should bear the burden of liquidating the damage done to the public in the form of increased pauperism and crime. In Minnesota, an act provided for the payment of a license by all keepers of saloons and dramshops, which would be devoted to the establishment of a fund for the foundation and maintenance of an asylum for inebriates. In declaring the act to be constitutional, the court advanced the following reasons in support of it: “ It is very apparent from its provisions, that the law in effect is one further regulating traffic in intoxicating drinks. Such is manifestly one of its objects, and its principal features and provisions accord with this idea. It requires of those desiring to prosecute business the procuring of a special license as a condition precedent to the exercise and enjoyment of such a right. It regards the traffic as one tending to produce intemperance, and as likely, by reason thereof, to entail upon the State the expense and burden of providing for the class of persons rendered incapable of selfsupport, the evil influence of whose presence and example upon society is necessarily injurious to the public welfare and prosperity, and, therefore, calls for such legislative interposition as will operate as a restraint upon the busines, and protect the community from the mischief, evils and pecuniary burthens following from its prosecution. To this end the special license is required, and the business restricted to such persons as are willing to indemnify the State, in part, against its probable results and consequences, by contributing towards a fund that shall be devoted exexclusively to that purpose in the manner indicated in the act. That these provisions unmistakably partake of the nature of police reg ulations, are strictly of that character, there can be no doubt, nor can it be denied that their expediency or necessity is solely a legislative, and not a judicial, question.
• Regarding the law as a precautionary measure, intended to operate as a wholesome restraint upon a traffic, and as a protection to society against its consequent evils, the exacted fee is not unreasonable in amount, and the purpose to which it is devoted is strictly pertinent and appropriate. It could not be questioned but that a reasonable sum imposed in the way of an indemnity to the State against the expense of maintaining the police force to supervise the conduct of those engaged in the business and to guard against disorders and infractions of law occasioned by its prosecution, would be a legitimate exercise of police power, and not open to the objection that it was a tax for the purpose of revenue, and therefore unconstitutional. Reclaiming the inebriate, restoring him to society, prepared again to discharge the duties of citizenship, equally promotes the public welfare and tends to the accomplishment of like beneficial results, and it is difficult to see wherein the imposition of a reasonable license fee would be any less a proper exercise of the power in one case than in the other.” 1
But that disposition of the license fees is not necessary as a justification of the law which exacts them. The money, collected by way of a license as a police regulation, may go into the State treasury for general revenue purposes, and need not be devoted specially to the relief of burdens which the prosecution of the trade or occupation imposed on the State, provided that the character of the occupation is such that restrictions upon its pursuit, looking to its partial suppression, would be constitutional, whatever their character may be. Since the primary object of such a law would be to operate as a restriction upon the trade, and not to raise a revenue, the incidental increase in the revenue would constitute no valid objection to the law."
1 State v. Cassidy, 22 Minn. 312 (21 Am. Rep. 765).
The amount demanded for the license, in such a case, would be determinable by the legislature. It would be a legislative, and not a judicial question. But it is a judicial question, whether the particular occupation or trade can, under the constitutional limitations, be restrained. One, desiring to practice law or medicine, can be required to obtain a license from some court or other State authority, to which he is entitled after passing a satisfactory examination into bis qualifications for the profession; and he can be required to pay a small fee to cover the expense incurred in issuing the license; but he could not be rightfully compelled to pay a large amount, exacted of him with a view to reduce the number of the practitioners of these professions, although they may be overcrowded. A green grocer may be required to take out a license, in order that the proper police supervision may be maintained over his business to prevent the sale of unwholesome meat; and he may be required to pay a reasonable sum to defray the expenses of this necessary police inspection; but the number of green grocers can not be restrained by requiring a large sum in payment for his license. In order to justify a restrictive license, the business must itself be of such a nature, that its prosecution will do damage to the public, whatever may be the character and qualifications of those who engage in it. Such would be the keeping of a saloon or dramshop.' Once having been judicially ascertained that the trade or occupation may be restrained, it is a matter of legislative discretion what kind of restraints can be imposed. The prosecution of the trade then becomes a privilege, for which as large a price can be demanded by the State as it may see fit.
1 Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 554); Carter o. Dow, 16Wis. 299; Tenny v. Lanz, 16 Wis. 566. “In granting licenses, the items which may be taken into consideration as elements fixing the costs of the same, would seem to be about as follows: First, the value of the labor and material in merely allowing and issuing the license; second, the value of the benefit of the license to the person obtaining the same; third, the value of the convenience and cost to the public in protecting such business, and in permitting it to be carried on in the community; fourth, and in some cases an additional amount imposed as a restraint upon the number of persons who might otherwise engage in the business. None of these items contemplates, except incidentally, the raising of revenue for general purposes. In many cases, the license, which, if issued for proper purposes would be valid, would not be valid if issued merely for the purpose of obtaining or increasing the general revenue fund.'' Leavenworth v. Booth, 15 Kan. 627. “It is no doubt true that the city was empowered to resort to other means of restraint (than requiring heavy licenses of saloon keepers), such as requiring such houses to be orderly, and in other respects to conform to such ordinances as might be adopted to properly restrain the business; but the fact that they had other powers conferred for this purpose in nowise prevented the city from exercising the power to restrain the general free sale of liquors by requiring that a license should be obtained before it could be sold.” Mt. Carmel 0. Wabash, 50 nl. 69; Emporia v. Volmer, 12 Kan. 622.
In respect to the great majority of employments and occupations, the principles, explained above, have no application whatever. They not only do not threaten any evil to the public, but their prosecution to the fullest measure of success is a public blessing. Instead of placing trades in general under restraints and police regulations, in which a license would be required, the utmost freedom can best attain the greatest good to the public. When, therefore, , we see municipal corporations requiring licenses for the prosecution of all kinds of occupations and employments; if their action can be justified at all, it must rest upon some other grounds than as a police regulation. It can only be justified as a tax upon the profession or calling. Having the natural, inalienable right to pursue a harmless
1 See post, $ 13.
calling, he can not be required to take out a license before he can lawfully pursue it. For what is a license?
6. The object of a license,” says Mr. Justice Manning, “ is to confer a right that does not exist without a license, and consequently a power to license involves in the exercise of it, a power to prohibit under pain or penalty without a license. Otherwise a license would be an idle ceremony, giving no
a right, conferring no privilege, and exempting from no pain or penalty. If the right existed previous to the law requiring the license, it would not exist afterwards without a license. The fact that a license is required to do an act, is of itself a prohibition of such act without a license.”' 2
“A proper license tax is not a tax at all within the meaning of the constitution, or even within the ordinary signification of the word “tax.'
The imposition of a license tax is in the nature of the sale of a benefit, or privilege, to the party who would not otherwise be entitled to the same. The imposition of an ordinary tax is in the nature of the requisition of a contribution from that which the party taxed already rightfully possesses.
The following case, from the Supreme Court of Minnesota, covers the ground so effectually, in presenting the distinction between a " license and a “ tax” upon occupations, that an extensive quotation is given from the opinion of the court. The city council of St. Paul had by ordinance required a license fee of twenty-five dollars from every huckster of vegetables, who plied his trade in the streets of the city. In determining whether this was a license or a tax, the court said:
“It is apparent that provisions of this section are founded upon the assumption that the common council, under the charter, possesses the power to license the pursuit of the particular calling or business mentioned, in and along
1 Chilvers v. People, 11 Mich. 43. 2 Chilvers v. People, 11 Mich. 49. s Leavenworth v. Booth, 15 Kan. 627.