the streets of the city, and to prescribe, as an incident thereto, when it may be followed, what sum shall be paid for the privilege, and also to prohibit the business entirely without a license, as an efficient means for the protection and enjoyment of the power itself. The ordinance is in entire harmony with this view and no other. It was not passed as suggested by counsel, by virtue of any power of supervision and control over streets, because powers of that character are conferred for the sole purpose of putting and preserving the public streets in a fit and serviceable condition, as such, by keeping them in repair and free from all obstructions and uses tending in any way to the hinderance or interruption of public travel, and to that end alone can they be exercised. The ordinance in question has no such object in view. On the contrary, it expressly authorizes the use of the public streets for the purposes of the licensed traffic during that portion of each day, when ordinarily the travel is the greatest, and when such traffic would be most likely to interfere with the free and uninterrupted passage of vehicles and footmen, and it contains no provision in any way restricting, or calculated to regulate, the manner in which the licensed business shall be conducted as to occasion the least public inconvenience. It cannot be claimed that it was enacted in the exercise of any police power for sanitary purposes, or for the preservation of good order, peace or quiet of the city, because neither upon its face, nor upon any evidence before us, does it appear that any provision is made for the inspection of any articles sold or offered for sale under the license, or preventing the sale of any decayed or unwholesome vegetables, nor is there any restraint or regulation whatever, imposed upon the conduct of the business during the time it is permitted to be prosecuted. The annual sum exacted for the license is manifestly much in excess of what is necessary or reasonable to cover expenses incident to its issue. The business itself is of a useful character, neither hurtful nor pernicious, but benefi

cial to society, and recognized as rightful and legitimate, both at common law and by the general laws of the State. No regulations being prescribed in reference to its prosecution under the license, there could be little, if any, occasion for the exercise of any police authority, in supervising the business or enforcing the ordinance, and no cause for any considerable expense on that account. In view of these facts, it is quite obvious that the amount of the license fee was fixed with reference to revenue purposes, which it was the main object of the ordinance to promote, by means of a tax imposed upon the particular employment or pursuit, through the exercise of its power over the subject of granting license." 1

It is, therefore, conclusive, that the general requirement of a license for the pursuit of any business that is not dangerous to the public, can only be justified as an exercise of the power of taxation, or the requirement of a compensation for the enjoyment of a privilege or franchise. In respect to the latter ground, no substantial objection can be well laid to the requirement of a license. When the State grants a franchise, it may demand, as a consideration for its grant, some special compensation, and afterwards tax it as property ad valorem. Thus insurance companies established by charter from one State have no natural right to carry on business in any other State, and permission to do so is a privilege for which the payment of a substantial sum as license may be required.

1 St. Paul v. Traeger, 25 Minn. 248. See, also, Mayor v. 2nd Ave. R. R. Co., 32 N. Y. 261; Kip v. Paterson, 26 N. J. 298; State v. Hoboken, 41 N. J. 71; Commonwealth v. Stodder, 2 Cush. 562; Johnson v. Philadelphia, 60 Pa. St. 445; Muhlenbrinck v. Commissioners, 42 N. J. 364 (36 Am. Rep. 518); State v. Roberts, 11 Gill & J. 506; Home Ins. Co. v. Augusta, 50 Ga. 530; Burlington v. Bumgardner, 42 Iowa, 673; Cairo v. Bross, 101 Ill. 475; Mayor v. Cincinnati, 1 Ohio St. 268.

2 People v. Thurber, 13 Ill. 554; Commonwealth v. Germania, L. I. Co., 11 Phila. 553; Walker v. Springfield, 94 Ill. 364; State v. Lathrop, 10 La. Ann. 398; Ex parte Conn, 13 Nev. 424; Trustees E. F. Fund v. Roome, 93 N. Y. 313; Leavenworth v. Booth, 15 Kan. 627.

66

The right of the State to tax professions and occupations, unless there is some special constitutional prohibition of it, seems to be very generally conceded. Judge Cooley says: Taxes may assume the form of duties, imposts and excises, and those collected by the national government are very largely of this character. They may also assume the form of license fees, for permission to carry on particular occupations."1 The State and the town authorities may impose a separate tax upon the same occupation,2 and the fact that the property used in trade is taxed ad valorem, does not constitute any objection to the imposition of a license tax upon the business.3

The most common objection raised to the enforcement of a license tax, is that it offends the constitutional provision, which requires uniformity of taxation, since the determination of the sum that shall be required of each trade or occupation must necessarily, in some degree, be arbitrary, and the amount demanded more or less irregular. But the courts have very generally held that the constitutional requirement as to uniformity of taxation had no reference to taxation of occupations. "We are unable to perceive how the ordinance in question violates art. 127, which requires taxation to be equal and uniform. Its words are;

1 Cooley Const. Lim. 613; Ould v. Richmond, 23 Gratt. 464 (14 Am. Rep. 139); Commonwealth v. Moore, 25 Gratt. 951; Gatlin v. Tarborso, 78 N. C. 419; State v. Hayne, 4 Rich. L. 403; Young v. Thomas, 17 Fla. 169 (35 Am. Rep. 328); Stewart v. Potts, 49 Miss. 949; State v. Endom, 23 La. Ann. 663; New Orleans v. Kaufman, 29 La. 283 (29 Am. Rep. 328); Albrecht v. State, 8 Tex. Ct. App. 216 (34 Am. Rep. 737); Cousins v. State, 59 Ala. 113 (20 Am. Rep. 290); Sweet v. Wabash, 41 Ind. 7; Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654); Morrill v. State, 38 Wis. 428 (20 Am. Rep. 12); Ex parte Frank, 52 Cal. 606 (28 Am. Rep. 642); Ex parte Robinson, 12 Nev. 263. In Cincinnati v. Bryson, 15 Ohio, 625, Judge Read, in a dissenting opinion, denies that the legislature of Ohio has the power to tax occupations.

2 Webbe v. Commonwealth, 33 Gratt. 898.

3 St. Louis v. Green, 6 Mo. App. 590; Lewellen v. Lockharts, 21 Gratt. 570; Hirsh v. State, 21 Gratt. 785.

all keepers or owners of stables where horses and carriages are kept for hire, etc.' The argument seems to be that the business of defendant's livery stable will not bear such a tax. To this it may be again replied - this does not profess to be a tax upon capital or profits, which are property; but on the person pursuing a certain occupation. To levy such a tax differently upon one and another in proportion to the success of each in such a pursuit would produce the very inequality of which the defendants complain. As the ordinance stands, all are taxed alike."

A more serious question is the character of the remedies that may be employed for the collection of the license tax. Where the tax is laid upon property, the usual remedy is a suit at law and a sale of goods necessary to liquidate the taxes due, or, in the case of real property, a sale of the property against which the taxes are assessed. And a sale of the goods under execution, issued on a judgment for the license tax, would be an altogether unobjectionable remedy. When the tax is lawfully laid against the individual, it becomes a debt which, like any other kind of indebtedness, can be reduced to judgment, and satisfaction obtained by a sale under execution of the judgment debtor's goods. But the usual remedy is to make the payment of the license tax a condition precedent to the lawful prosecution of the business, whether the license is executed in the enforcement of a police regulation, or as means of raising revenue. As a police regulation the denial of the right to engage in the business before taking out a license is but reasonable. The license operates as a prohibition, and there would clearly

1 Municipality v. Dubois, 10 La. Ann. 56. See, also, to the same effect, Youngblood v. Sexton, 32 Mich. 406 (20 Ann. Rep. 654); Gatlin v. Tarboro; 78 N. C. 119; Mayor, etc., v. Beasley, 1 Humph. 232; Ex parte Robinson, 12 Nev. 263; State v. Endom, 23 La. Ann. 663; People v. Thurber, 13 Ill. 554.

§ 101

be no constitutional objection to a law, which even made it penal to prosecute the business without a license.1

But the case assumes a different phase, when the occupation is merely taxed, and not licensed in the strict sense of the word. Can the State prohibit the prosecution of a trade or business until the tax is paid? Ordinarily it is conceded that this remedy may be adopted for the effectual collection. of the tax. Judge Cooley says: " 2 "What method shall be devised for the collection of a tax, the legislature must determine, subject only to such rules, limitations, and restraints as the constitution may have imposed. Very summary methods are sanctioned by practice and precedent." In a note on the same page, he gives among the methods of collection resorted to, the following: "Making payment a condition precedent to the exercise of some legal right, such as the institution of a suit, or voting at elections, or to the carrying on of business; requiring stamps on papers, documents, manufactured articles," etc., and the United States government has employed in the internal revenue service a large force of detectives whose duty it is to discover and bring to punishment all those who are engaged in the manufacturing of distilled spirits. The right of the United States government to make the sale and manufacture of intoxicating liquors and tobacco illegal, unless a revenue license has been previously obtained, and the tax paid, has never been successfully contested, although the prosecutions for the violation of the law have been frequent. But the right of the States, in taxing the professions, to make the payment of the tax a condition precedent to the lawful pursuit of the business or profession, has been questioned, and likewise denied.*

3

1 Goshen v. Kern, 63 Ind. 468. In this case the occupation was that of auctioneers.

2 Const. Lim. 645,

3 See Henderson's Distilled Spirits, 14 Wall 44.

"What is a license? It is defined to be a right given by some compe