Gambar halaman


“ The popular understanding of the word license undoubtedly is, a permission to do something which without license would not be allowable. This we are to suppose was the sense in which it was made use of in the constitution. But this is also the legal meaning. The object of a license,'

• says Mr. Justice Manning, is to confer a right that does not exist without a license.'1 Within this definition, a mere tax upon a traffic cannot be a license of the traffic, unless the tax confers some right to carry on the traffic, which otherwise would not have existed. We do not understand that such is the case here. The very act which imposed this tax repealed the previous law, which forbade the traffic and declared it illegal. The trade then became lawful, whether taxed or not; and this law, in imposing the tax, did not declare the trade illegal in case the tax was not paid. So far as we can perceive, a failure to pay the tax no more renders the trade illegal than would a like failure of a farmer to pay a tax on his farm render its cultivation illegal. "The State has imposed a tax in such a case, and made such provision as has been deemed needful to insure its payment; but it has not seen fit to make the failure to pay a forfeiture of the right to pursue the calling. If the tax is paid, the traffic is lawful; but if not paid, the traffic is



tent authority to do an act which, withont such authority, would be illegal. The position of a city then is that, notwithstanding Dr. Charlton has a license from the State to practice medicine anywhere in the State, yet if he exercise the privilege thereby granted in the city of Savannah without a license from the city, it will be illegal. In other words if he acts under a license from the State, he becomes a criminal. The effect of which is to elevate the ordinance of a city above the laws of the State.

Under the pame of license Dr. Charlton cannot be prohibited from availing himself, in the city, of a privilege conferred on him by the State. He is not here contesting the authority of the city to tax him for practicing his profession; what he contends for is, that the city shall not make that illegal which by the law of the State is legal. We see no good reason why the city may not tax the practice of any profession within the corporate limits." Savannah v. Charlton, 36 Ga. 460. 1 Chilvers v. People, 11 Mich. 43.

equally lawful. There is consequently nothing in the case that appears to be in the nature of license.” 1

While practice and precedent justify this summary method of collecting the tax upon occupations, it cannot be successfully denied that it is in contravention of natural right. Every one has a natural right to pursue any innocent calling, without permission from the government; and while the right of the government to tax an occupation may be conceded, the imposition of the tax creates only a debt between the individual and the State; and the same remedies may be pursued, as are permissible in the collection of ordinary debts. In cases of insolvency of the individual, the indebtedness to the State for a license tax may be given priority of payment; a very summary proceeding may be devised for reducing the license tax to judgment, and securing payment by a levy upon the goods of the individual; all these ordinary and special remedies, and others of a like character, might well be provided, but to make it illegal to pursue a trade or engage in an occupation, until the tax is paid, is clearly in violation of those fundamental principles of civil liberty, which are recognized and guaranteed by all constitutional governments. The State may make the payment of taxes generally, or of poll tax in particular, a condition precedent to the exercise of the right of suffrage, for that is generally conceded by all constitutional authorities to be a privilege, and not a natural right. But the pursuit of an employment or business is a natural right, which exists independently of State authority, and can only be abridged by the exercise of the police power of the State, in the imposition of those restrictions and burdens which are necessary to prevent, in the prosecution of the trade or business, the infliction of injury upon others. The collection of a tax does not come within the exercise of police power as a prohibitory measure.

1 Cooley, J., in Youngblood v. Sexton, 32 Mich. 406.

[ocr errors]

Another important question, in connection with licenses, is the nature of the right or privilege acquired by a license, strictly so called. A license tax, as a tax, confers no right of any kind; it simply lays a burden upon an occupation, and creates the duty to pay the tax. But when the license fee is exacted in the exercise of the police power of the State, does its payment give to the owner of the license an irrevocable right to pursue the trade or occupation, subject to no further restrictions by the State? The question has assumed a practical form in determining the effect of the passage of a law, prohibiting the sale of intoxicating liquor, upon the licenses to sell, that have been previously granted, and the time for which they were given has not expired. Can the State, after granting a license to sell intoxicating liquors for one year, during that year revoke the license by prohibiting the sale altogether? The answer must depend upon the nature of the right acquired by the license. It has been repeatedly held that a subsequent prohibition law revokes all outstanding licenses, whatever damage might result to those who, relying upon the license, as giving the right to sell during the year, have incurred obligations and expenses, for which they cannot secure any proper reimbursement except in the continued enjoyment of the license. But, however great a hardship the revocation of the license may happen to be in particular cases, since the license is an authority to do what is otherwise prohibited, and the issue of the license is one mode of exercise of the police power; if the occupation or trade can be prohibited under the constitutional limitations, because of the injury done to the public in its prosecution, the license must be held to have been given and accepted, subject always to the constant exercise of the police power in the interest of the public, the right to the exercise of which can never be bartered away by any legislative enactment. The Court of Appeals of New York gave utterance to the following language, in explaining the right to revoke licenses:

• These licenses to sell liquors are not contracts between the State and the person licensed, giving the latter vested rights, protected on general principles and by the constitution of the United States against subsequent legislation, nor are they property in any legal or constitutional sense. They have neither the qualities of a contract nor of property, but are merely temporary permits to do what otherwise would be an offense against a general law. They form a portion of the internal police system of the State ; are issued in the exercise of its police powers, and are subject to the direction of the State government, which may modify, revoke or continue them as it may deem fit. If the legislature of 1857 had declared that licenses under it should be irrevocable (which it does not, but by its very terms they are revocable), the legislatures of subsequent years would not have been bound by the declaration. The necessary powers of the legislature over all subjects of internal police, being a part of the general grant of legislative power given by the constitution, cannot be sold, given away, or relinquished. Irrevocable grants of property and franchises may be made, if they do not impair the supreme authority to make laws for the right government of the State ; but no one legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police.” 1

1 Metropolitan Board o. Barrie, 34 N. Y. 657. “Nor can it be doubted that the legislature has the power to prohibit the sale of spirituous or fermented liquors in any part of the State, notwithstanding a party to be affected by the law may have procured a license, under the general license laws of the State, which has not yet expired. Such a license is in no sense a contract made by the State with the party holding the license. It is a mere permit, subject to be modified or annulled at the pleasure of the legislature, who have the power to change or repeal the law under which the license was granted.” Fell v. State, 42 Md. 71 (20 Am. Rep. 83); Commonwealth v. Kingsley, 133 Mass. 578; La Croix v. Fairfield Co. Comrs., 49 Conn. 591; Reed v. Beall, 42 Miss. 572; Coulson v. Harris, 43 Miss. 728; Robertson v. State, 12 Tex. App. 541; Schwuchon 0. Chicago, 68 Ill. 444; Prohibition Amendment Cases, 24 Kan. 700.

By the same course of reasoning is it justified by subsequent laws to subject the licensed occupation to further restrictions. Thus it was held that the grant of a license does not prevent the State from prohibiting by a later law the sale of liquor on certain specified days,1 or from prohibiting licensed saloons being open after a certain hour in the night.

§ 102. Prohibition of occupations in general.3 -- If the police regulation of trades and occupations cannot be insti. tuted and enforced, except so far as a trade or occupation is harmful or threatens to be harmful in any way to the public, however slight the restraint may be, so much the more necessary must it be to confine the exercise of the police power to the prevention of the injuries with which the public is threatened by the prosecution of a calling, when the law undertakes to deny altogether the right to pursue the calling or profession. In proportion to the severity or extent of the police control must the strict observance of the constitutional limitations upon police power be required. There is no easier or more tempting opportunity for the practice of tyranny than in the police control of occupations. Good and bad motives often combine to accomplish this kind of tyranny. The zeal of the reformer, as well as cupidity and self-interest, must alike be guarded against. Both are apt to prompt the employment of means, to attain the end desired, which the constitution prohibits.

It has been so often explained and stated, that the police power must, when exerted in any direction, be confined to the imposition of those restrictions and burdens which are necessary to promote the general welfare, in other words to prevent the infliction of a public injury, that it seems

Reichmuller v. People, 44 Mich. 280. 2 State v. Washington, 44 N. J. L. 605 (43 Am. Rep. 402).

8 See post, $ 136, for a discussion of the prohibition of the sale of personal property.

« SebelumnyaLanjutkan »