157 Mo. 301 | Mo. | 1900
This action was begun in tbe city of St. Louis, August 24, 1897, by summons from tbe first district police court of that city. Tbe charge was that defendant conducted a real estate business in said city in 1896 and 1897 without having a license to so do, contrary to sections 1480, 1481 and 1482, article 8, chapter 38, entitled “Eev-enue,” of the Eevised Ordinances of said city, approved April 7, 1893.
The sections referred to read as follows:
“Section 1480. — Every person or firm composed of one or more persons, who shall act as agent for any party in tbe leasing, renting or selling of bouse or real estate at private or public sale, or who shall receive or collect rents for another for a commission or other compensation, orwbo shall advertise or bang out any sign or device which shall designate him as an agent for tbe renting, collecting rents, leasing or selling of bouses or real estate shall be considered as (a) bouse or real estate agent (s).
“Section 1481. — A real estate 'broker is one who • for commission or other compensation is engaged in the selling - of or negotiates sales of real estate belonging to others,
*306 “Section 1482. — Every person or firm of one or more persons engaged in the business defined in tbe foregoing sections shall pay an annual license of twenty-five dollars, wbicb shall be payable before any such person or firm shall be permitted to transact any business; and if such person or persons fail to pay said license, then he or they shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than two hundred dollars.”
The action was tried September 9th following, plaintiff proving that defendant conducted, a real estate business in said city without having a license to do so, as alleged in the complaint. Defendant demurred to the complaint and offered evidence tending to show that the taxing of his occupation was unnecessary as a revenue measure. His demurrer was overruled, his evidence excluded, and he was fined $100. He took an appeal to the St. Louis Court of Criminal Correction, and filed his affidavit and bond therefor forthwith. In the last named court, the case came for hearing on the 21st day of the same month, and defendant failing to appear, the judgment of the police court was affirmed by default. In due time he filed in the court last named, motions for new trial and in arrest of judgment.
In the motion to set aside the default, and for a new trial, it is assigned as cause therefor that the judgment was against the evidence, and against the law and the evidence.
The motion in-arrest of judgment set forth'that:
1st. The ordinance upon which the charge against defendant was founded, is in violation of and contrary to section 4 of article 2 of the Bill of Rights of the State Constitution.
2d. The facts set forth in the statement of the charge against defendant, do not constitute a public offense.
4th. Tbe court bad no jurisdiction of tbe defendant in tbe cause, and tbe entire proceedings therein were unconstitutional, null and void.
Both motions were overruled. Defendant appeals.
As long ago as 1848, it was beld by tbis court in Simmons v. State, 12 Mo. 268, that tbe State possesses tbe power to tax all trades, professions and occupations. Tbe same rule was announced in St. Louis v. Laughlin, 49 Mo. 559, and in St. Louis v. Sternberg, 69 Mo. 289. In tbe case last cited it is said: “However tbis may bave been elsewhere -decided, tbe power of the State to tax all professions has remained unquestioned in tbis State, since the case of State v. Simmons, 12 Mo. 271, tbe principle of which was followed and approved in tbe case of tbe City of St. Louis v. Laughlin, 49 Mo. 559. We are not disposed to reopen tbe question, especially as we think it has been settled, not only in accordance with reason, but with tbe weight of authority.”
In State v. Smithson, 106 Mo. 149, it was said: “That the State has tbe right to require a license tax on different occupations is, we think, well settled both by State and Federal decisions.”
That such power may be, and frequently is delegated by the State to its municipalities is well settled by the following decisions of tbe Supreme Court: St. Louis v. Sternberg, supra; St. Louis v. Laughlin, supra; St. Louis v. Herthel, 88 Mo. 128; American Union Express Co. v. St. Joseph, 66 Mo. 675; St. Louis v. Weitzel, 130 Mo. 600; Dillon on Mun. Corp. (4 Ed.), secs. 791, 793.
By paragraph 5, section 26, article 3, of tbe charter of tbe city of St. Lotus, tbe power is delegated to tbe mayor and municipal assembly “to license and tax real estate agents,” and tbe ordinances in question having been passed
But it is insisted that the ordinance is violative of section 4, of article 2, of the Bill of Rights of the State Constitution, which provides “that all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to' life, liberty and the enjoyment of the gains of their own industry; that to give-security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief design,” in that it deprives all persons who-come within its provisions of the enjoyment of the gains of their own industry.
This right, however, is not an absolute right, but is subordinate to the police power of the State. In speaking of this provision in the Constitution, in the case of State ex rel. v. Beattie, 16 Mo. App. 131, it is said: “The Constitution of this State, in the Bill of Rights, provides that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry.This of course,. does not confer upon any one the absolute right to use his property as he pleases. No such right exists in a state of civil society; but on the contrary, the right of one to use his-own must always be exercised in subordination' to the right-of others.The -same instrument provides that, ‘no person shall be deprived of life, liberty, or property, without due. process of law.’ Clearly, this provision was not intended to withdraw the rights of private property from the-reasonable exercise of the police power by the legislative-branch of the government. ‘All rights are held subject to-
Tbe right of defendant to enjoy tbe gains of bis own industry derived from conducting a real estate business in tbe city, was subordinate to tbe power of tbe city to require all persons thus engaged to pay license tax, and it makes no difference in principle that tbe tax was against tbe occupation, and not against property. It was no violation of tbe Constitution.
Tbe judgment is affirmed.
