4 Mo. App. 453 | Mo. Ct. App. | 1877
delivered the opinion of the court.
The city of St. Louis, on September 7, 1877, passed an ordinance, in the following words :
“ Sec. 1. No person shall exercise, within the city of St. Louis, the business or profession of a lawyer, without a license therefor as hereinafter provided.
“ Sec. 2. A lawyer, within the purview of this ordinance, is a person who is put in the place, stead, or turn of another, to manage his matters of law, or whose office is to appear for parties to actions and other judicial proceedings, and to prosecute and defend them in their behalf, and whose authority is derived either from a formal warrant of attorney or a mere oral retainer.
“ Sec. 3. Every lawyer, before entering upon or continuing the business or practice of his profession in the city of St. Louis, shall obtain from the collector an annual license therefor, for which he shall pay to the collector, in advance, the sum of twenty-five dollars.
“ Sec. 4. Any person who violates any of the provisions of this ordinance shall be deemed guilty of a misdemeanor,*455 and on conviction shall -be fined not less than twenty-five nor more than fifty dollars for each offence.”
The defendant was charged with a violation of this ordinance, by practising his profession as a lawyer in the city of St. Louis without having paid his license. He was found guilty and a fine imposed, and he appeals to this court. The facts in the case are agreed upon.
It is contended by appellant that the license provided for in this ordinance is for the sole purpose of raising revenue; is, therefore, a tax; and that the ordinance is void because the city of St. Louis, under its present Charter, does not possess the taxing power.
The Constitution of L875, by a special provision, authorized the election of a board of freeholders of the city or county of St. Louis, who were to reorganize the government of the city by framing a charter in harmony with and subject to the laws of Missouri, to contain certain specific provisions ; the charter thus framed to become the organic law of the city, and to sujiersede the then existing charter in sixty days after its ratification by a vote of the people. The freeholders met and performed the duties imposed upon them; and the new Charter has been adopted according to law. It gives express power to the mayor and Assembly, by ordinance not inconsistent with the Constitution or any law of the State, to assess, levy, and collect all taxes for general and special purposes, on real and personal property, and licenses, and also to license, tax, and regulate lawyers.
The power to levy taxes ivas contained in the Charter of St. Louis abrogated by the adoption of the existing law, and has been contained in every charter ever granted to the city. The Constitution of 1875 (art. 10, sec. 10) provides that the General Assembly shall not impose any taxes upon any cities for municipal purposes, but may, by general law, vest in the corporate authorities thereof the power to do so. The Constitution also provides (art. 9, sec. 7) that the General Assembly shall provide, by general laws, for the
It is true that municipal corporations can levy no taxes, general or special, unless the power be unmistakably conferred. But this need not mean that it-must be specifically granted in set terms. It is a question of intention. It is held, to be sure, in the interpretation of legislative enactments, that the power to tax cannot be inferred from gen
The power of the State to tax all professions is .unquestioned. This has been settled in' Missouri. That the State may tax lawyers, and may delegate to a municipal corporation the power to tax them, was decided in 1848, in the case of Simmons v. The State, 12 Mo. 268; and was reasserted in 1872, in City of St. Louis v. Laughlin, 49 Mo. 561. We. must hold that this power has been fully delegated to the city of St. Louis by the Constitutional Convention of 1875, unless we are to maintain that the city has no taxing power1 at all, which seems to be absurd. The provision of the Constitution (art. 10, sec. 1) that the taxing power may
It is urged that this tax is invalid because not levied on any principle of equality or uniformity. The Constitution of Missouri provides (art. 10, sec. 3) that “ taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” The Constitutions of many of the States contain provisions enforcing this principle. In Texas, California, Louisiana, and Virginia it is provided that the taxation shall be “ equal and uniform throughout the Stateand the same principle, with varying phraseology, is embodied in the organic laws of Massachusetts, Wisconsin, Ohio, Arkansas, Illinois, and Tennessee. These provisions are held to apply to property alone, and not to include taxation on privileges or occupations. Burroughs on Tax., sec. 54, and cases cited in note. And it seems to be quite well settled that the usual provisions in the Constitutions of the different States, concerning taxation, do not prohibit the Legislature from imposing, or authorizing municipal authority to impose, taxes upon trades, special professions, and occupations. Dill, on Mun. Corp., sec. 632, and cases cited. The uniformity required in Missouri does not seem to be in any way violated by an equal tax upon all members of one profession in one city. But in other States, where the phraseology of the Constitution is perhaps less favorable to such a tax as this, the objection has been made to similar taxation in many instances, and the courts have held it to be without force To use the language of the learned author of the well-known treatise-on Constitutional Limitations, delivering the opinion of the court in Youngblood v. Sexton, 32 Mich. 414, “it may possibly be true that an apportionment according to the business done would have been more just,
It is, however, urged that the power to tax is the power to destroy; that attorneys are officers of the courts, and essential to the administration of justice ; that to the courts, alone has been committed the power to admit and to disbar attorneys ; that, if the Legislature can tax attorneys, it may impose a tax which may make the existence of the profession an impossibility; and that thus the legislative department of the government may, to the destruction of free government, invade the province of the judiciary. But-the possibility of its abuse is no good argument against the existence of the power. It is in the power of the Legislature to put a stop to the administration of justice by refusing the appropriations necessary to carry on the business of the courts, or by reducing the salaries of judges to a pittance so meagre that no competent lawyer could be foulid to accept the position. The possibility of the abuse suggested is so remote as not to deserve consideration. When the taxing power is abused by the Legislature, for the manifest purpose of confiscating private property, or destroying an independent and coordinate branch of the government, it will be for the courts to deal with such complications as may then present themselves. Meanwhile, a.
'But whilst we admit the right of the Legislature to tax lawyers, the right to regulate them, except through the courts of which they are members, is a wholly different question, into which it is not necessary to enter for the pur
The judgment of the Court of Criminal Correction is, therefore, reversed, and the defendant discharged.