Harder's Fire Proof Storage & Van Co. v. City of Chicago, 85 N.E. 245

Harder's Fire Proof Storage & Van Co. v. City of Chicago

85 N.E. 245

Ill.

1908

Check Treatment

Mr. Justice Hand

delivered the opinion of the court:

Thе bill in this case was filed by the complainant to test the constitutionality of the “wheel tax” ordinance passed by the city of Chicago and the statute under which said ordinance was passed.

It is first contended that the legislature is without power to authorize the city of Chicago to pass an ordinance requiring vehicles using its streets to pay a license fee, which fee, when collected, shall be kept as a separate fund and used for improving and keeping in repair the streets and alleys of the city, as it is said, first, the license fee thus provided for is a tax; and second, the privilege of using the streets of the city with wagons and vehicles cannot be taxed. We think it clear in this State that a license may be imposed and the fee for such license collected with a view to revenue only, and if such be the law, the fact that the license required to be paid by said ordinance in this-case is for revenue only, does not render the statute under which the ordinance was passed, and the ordinance, unconstitutional.

In Wiggins Ferry Co. v. City of East St. Louis, 102 Ill. 560, a suit was brought to recover a liсense fee imposed upon the Wiggins Kerry Company, and the court, on page 567, said: “The constitution has not prohibited the General Assembly from imposing or authorizing the imposition of the duty to procure a license to pursue any calling, nor has it limited the power 'or limited its exercise. Iu this respect the power of the legislature is the same as it has ever been since the organization of the State government, and no one, we presume, will question the legislative power to require persons engaged in various avocations to procure a license for the purpose, and thus regulate the exercise of an avocation. It is a power exercised by all governments, and is one of the essential means of providing for raising revenue for both the State and local governments and the regulation of business. If the constitutional convention had intended to make so’radical a change as to deprive the legislature of this power, or to make a license fee uniform throughout the State on all persons exercising the same calling, without regard to the capital invested, business done or profits realized, that body would have employed very different language from that which we find in that instrument. They were aware that this court had held that a license fee was not a tax, in the constitutional sense, and we have a right to suppose they used the term ‘tax’ in a sense to exclude a license. That body could not have intended to deprive municipal bodies of this great source of revenue, and to abandon the power, either directly or through municipal bodies, to regulate various callings. If they had intended to prevent all licenses for all purposes they would have said it, or if it was intended to restrain the exercise of the power to regulate them it would have been so provided.”

In Banta v. City of Chicago, 172 Ill. 204, in which case an ordinance requiring brokers to be licensed was held to be valid, the court, on page 219, said: “The occupation may be lawful in itself and not subject to prohibition or regulation by the State, yet it may be prohibited in order to compel the taking out of. a license if the purpose is to raise revenue' by. means of license fees. * * * In the view we take of the case it is not material to determine whether the license fee is for revenue or for purposes of regulation. We think it is well settled by repeated decisions of this court that the State in its sovereign capacity, and the cities and villages of the State by virtue of the grant of the power by the General Assembly, have ample power and authority to impose license fees upon the occupation of a broker * * * for the purposes either of regulation or revenue.”

In Price v. People, 193 Ill. 114, the court said (p. 117) : “It is a well recognized attribute of sovereign power to tax any occupation for the purpose of raising revenue, and such tax may be laid and collected in the form of a license fee.”

In Bessette v. People, 193 Ill. 334, on page 342, the court said: “We are not prepared to say that the legislature has not the power to impose an exaction in the form of a license fee for revenue upon the business of horseshoeing, even though the еxaction of such license fee is not a tax.”

We think, therefore, the contention that the statute and ordinance are void by reason of the fact that a license fee is exacted for wagons and other vehicles using the streets of the city, which is to be set aside as a special fund to be used in improving and repairing the streets of the city, does not render said statute and ordinance unconstitutional and void.

' In disposing of the second contention of the appellant it must be borne in mind that the constitution of this State is a limitation upon and not a grant of power to the legislature, and that the legislature has the right to exercise any power not prohibited by the State or Federal constitution. In the Price case, on page 116, it was said: “Section 1 of article 4 of the constitution of 1870 lodges the legislative power of the State in the General Assembly, consisting of the senate and house of representatives. The supreme or sovereign power of legislation, which under our form of government resides in the people, by the adoption of said section 1 of article 4 of the constitution of 1870 was vested in the General Assembly, subject only to the limitations and restrictions found-in other portions of the organic instrument or in the constitution of the United States.”

In Thorpe v. Rutland, etc. Railroad Co. 27 Vt. 532, at page 543, Mr. Justice Redfield said: “It has never been questioned, so far as I know, that the American legislatures have the same unlimited power in regard to legislation which resides in the British parliament, except where they are restrained by written constitutions. That must be conceded, I think, to be a fundamental principle in the political organizations of the' American States. We cannot well comprehend how, upon principle, it should be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the constitution of the United States or of the particular State in question.”

In the case of Sawyer v. City of Alton, 3 Scam. 127, at page 130, the court, in discussing the constitutionality of a provision of the charter of the city of Altоn authorizing the collection of a poll-tax, said: “The plaintiff in error denies the power of the legislature to impose any tax unless property is the basis and the mode of levying it is by valuation. There can be no doubt that when property is to be taxed, the mode of levying the tax must be by valuation. But does the constitution limit the power of the legislature as to the objects of taxation or only prescribe the mode, when the tax is to be imposed on a particular object? The constitution of the State is not to be regarded as a grant of power, but rather as a restriction upon the powers of the legislature, and it is competent for the legislature to exercise all powers not forbidden by the constitution of the State nor delegated to the general government nor prohibited to the State by the constitution of the United States. The legislature, then, possesses the general power of taxation as to other objects unless restricted by this section of the constitution. We are of opinion the framers of the constitution intendеd to direct a uniform mode of taxation on property and not to prohibit any other species of taxation^but to leave the legislature the power to ^impose such other taxes as would be consonant to public justice and as the circumstances of the county might require.”

In Mason v. Wait, 4 Scam. 127, at page 134, the court said: “A different rule obtains in interpreting the powers in the constitutions of the United States and the States. In ascertaining the powers of the former we examine to see what powers are expressly granted or are necessarily implied for their exercise; in the latter we only examine to see what ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are denied by the Federal and State constitutions. And my view of the law-making power of these State governments is, that they can do any legislative act not prohibited by the constitutions, and without and beyond these limitations and restrictions they are as absolute, omnipotent and uncontrollable as parliament.”

In City of Chicago v. Manhattan Cement Co. 178 Ill. 372, at page 380, it was said: “It is not and cannot be denied that the legislature of this State has full power to enact all laws pertaining to the civil government of the State not prohibited by the Federal or State constitution. The constitution itself confers that power, and as said in Firemen’s Benvevolent Ass. v. Lounsbury, 21 Ill. 511, (speaking of the constitution of 1848, similar in that regard to our present constitution) : ‘The general grant of legislative power found in the constitution confers upon the General Assembly all legislative power and authorizes the law-makers to pass any laws and do any acts which are embraced in the broad and general word ‘legislation,’ as known and defined in the English language.’ ”

The power, therefore, of the legislature to raise revenue being unlimited, it clearly extends to the power to grant to the municipalities of the State the right to exact a license fee from all persons, firms or corporations using wagons or vehicles upon their streets, in the form of a license fee, unless prohibited by constitutional enactment.

Mr. Cooley, in his work on Taxation, (2d ed. p. 5,) says: “Everything to which the legislative power extends may be the subject of taxation, whether it be person or property, or possession, franchise or privilege, or occupation or right. Nothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature in its discretion shall at any time select it for revenue purposes. And not only is the power unlimited in its reach as to subjects, but in its very nature it acknowledges no limits, and may be carried to any extent which the government may find expedient. It may therefore be employed again and again upon the same subjects, even to the extent of exhaustion and destruction, and may thus become, in its exercise, a power to destroy. If the power be threatened with abuse, security must be found in the responsibility of the legislature which" imposes the tax to the constituency who are to pay it. The judiciary can afford no redress against oppressive taxation so long as the legislature, in imposing it, shall keep within the limits of legislative authority and violate no express provision of the constitution. The necessity for imposing it addressеs itself to the legislative discretion, and it is or may be an urgent necessity which will admit of no property or other conflicting right in the citizen while it remains unsatisfied.” And again, in his work on Constitutional Limitations, (2d ed. p. 479,) the same author says: “The power to impose taxes is one so unlimited in force and so searching in extent that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation; to every object of industry, use or enjoyment; to every species of possession; and it imposes, a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of the government affect more constantly and intimately all the relations of life than through the exactions made under it.”

This court, in Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 561, at page 573, in upholding the constitutiоnality of the law of 1872 providing for the taxing of railroad corporations, said: “That the right to tax rests upon necessity is inherent in every government, and with us is vested in the legislative department, which possesses plenary power over the subject, except so far as it may be restricted by the constitution of the State or of the United States, and that it rests with those who allege the unconstitutionality of an act of the legislature to show, clearly and palpably, wherein it violates the constitution, are fundamental principles that cannot be controverted.” And in Eurigh v. People, 79 Ill. 214, at page 216, in upholding certain sections of the Revenue act relating to the time of returning the assessment rolls, the court said: “The taxing power of a State is absolute and uncontrolled, except so far as it is limited by constitutional provisions. Within such limitations the General Assembly are the sole judges of the manner in which taxes shall be imposed and collected, and our constitution contains no limitation on the question under consideration.” And in Greenleaf v. Board of Review, 184 Ill. 226, at рage 227, in upholding the Revenue act relating to the taxation of the stock of a foreign corporation, the court said: “The General Assembly, representing the sovereignty of the State, has ample inherent power to impose taxes on all property within the State, the only limitations being such as are declared in the constitution of the State or that of the United States.”

The doctrine of this court then being that the legislature has plenary power as to the subjects and objects from which it will exact revenue, except in so far as it is limited by constitutional enactment, if we turn to the constitution can any limitation be pointed out which in any way inhibits the legislature from authorizing the municipalities of the State to exact revenue in the form of a license from persons, firms and corporations using their streets with wagons or vehicles ? Those limitations are found in sections 1 and 2 of article 9 of the constitution, which read as follows:

“Sec. i. The General Assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property — such value to be ascertained by some person or persons, to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise; but the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, inn- . keepers, grocery keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, vendors of patents, and persons or corporations owning or using franchises and privileges, in such manner as it shall from time to time direct by general law, uniform as to the class upon which it operates.

•“Sec. 2. The specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this constitution.”

It will be observed that section i of article 9 оf the constitution expressly authorizes the taxation of “persons or corporations owning or using franchises and privileges,” and section 2 provides that the General Assembly is not deprived of power to tax other objects or subjects of taxation than those enumerated in section 1. If, therefore, the right to use the public streets is a “privilege,” as used in section 1 of the constitution, the express right is given to the legislature to enact a statute providing that the municipalities of the State may exact a license fee from persons using the streets; if such right is not a privilege, within the meaning of said section 1, then such fight of taxation falls within the designation, “other subjects or objects to be taxed,” mentioned in section 2 of said article 9. In any event, there is no limitation found in said article 9 upon the power of the legislature to provide by statute that the municipalities of the State may exact- a license fee for the purposes of revenue from the use of the streets of said municipalities, except it shall be “by general law, uniform as to the сlass upon which it operates.”

In Howland v. City of Chicago, 108 Ill. 496, it was urged that an ordinance imposing a license fee upon persons keeping carriages, etc., for hire was in contravention of the constitution. The court, on page 500, said: “The constitution of 1818 contained, as a limitation upon the taxing power, the following: ‘That the mode of levying a tax shall be by valuation, so that every person shall pay a.tax in proportion to the value of the property he or she has in his or her possession.’ In the constitution of 1848 this restriction was removed, and in its stead it was provided : ‘The General Assembly shall provide for levying a tax by valuation, etc., but the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, innkeepers, grocery keepers, toll bridges and ferries, and persons using and exercising franchises and privileges, in such manner as they shall from time to time direct.’ In our present constitution the provision of the constitution of 1848 is retained, being modified by additions to the subjects of taxation without valuation, and by requiring such taxation to be imposed ‘by general law, uniform as to the class upon which it operates.’ And to this is added the further provision, that ‘the specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this constitution.’ It is plain, therefore, that, the General Assembly might, under this constitution, impose a tax by general law upon that class of livery-stable keepers who keep carriages for hire, although that business is not enumerated as one of the objects or subjects of taxation without valuation.”

In Price v. People, supra, in construing section i of article 9 of the constitution, on page 117, it was said: “Article 9 of the constitution of 1870 is expressly devoted to the exercise of the power of raising revenues. Section 1 of the said article authorized the General Assembly to tax certain occupations specifically enumerated in the section. The occupation of private employment agent is not therein enumerated. The incorporation into the constitution of the section giving the legislature authority to tax certain enumerated occupations for the purpose of raising revenue does not operate to limit the power of the law-making department of the State, in exercising the sovereign right of taxation of occupations, to the particular occupations specified. ' The familiar canon of construction, that such enumeration should be held by implication to inhibit the taxation of any occupation not specified in the section, can not be given application, for the reason such‘construction is expressly forbidden by section 2 of article 9 of the organic law. Expressions in Banta v. City of Chicago, supra, that such canon of construction is applicable, were made inadvertently. No inhibition, therefore, arises against the imposition of a license fee upon the occupation of the plaintiff in error on the sole ground the fee was laid as a tax for purposes of revenue.”

In Bessette v. People, supra, on page 341: “It is true that ‘horse-shoers’ are not mentioned in said section 1 of article 9 of the constitution, nor can they be included in any of the occupations therein named, but section 2 of said article 9 provides that ‘the specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this constitution.’ * * * Under the power granted by section 2 of article 9 a law might be passed by the legislature requiring the occupation of horseshoeing to be taxed in the manner therein stated.”

In Raymond v. Hartford Fire Ins. Co. 196 Ill. 329, the validity of the statute placing a two per cent tax on the gross premium received by foreign insurance companies was before the court. The appellants contended that the statute was in violation of section 1 of article 9 of the constitution in holding that this section was not violated by the statute. The court, on page 336, said: “The contention that the statute violates the first section above set out is, that the second clause of that section does not relate to property taxes strictly so called, but to taxes which the legislature may authorize to be levied on different kinds of business or occupations, and that such taxes were intended by the framers of the constitution to be in addition to, and not in lieu of, the tax on property by valuation provided for in the first clause, and that although the legislature has the power to impose the tax authorized by the act of 1899 on foreign insurance corporations as a class, for the privilege of doing business in this State, it has no power to relieve them of their personal property tax imposed by the general Revenue law, enacted under the first clause. There is no substantial difference between this section of the present constitution and section 2 of article 9 of the constitution of 1848, and this court has held that said second clause is not confined tо occupations but applies also to property interests, which may be included in the method of taxation adopted by the legislature, and which method may be different from that prescribed by the first clause of said section 1. (Illinois Central Railroad Co. v. McLean County, 17 Ill. 291; Sterling Gas Co. v. Higby, 134 id. 557; Coal Run Coal Co. v. Finlen, 124 id. 666; Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 id. 561.) While the legislature may, under the second clause of section 1 and under the second section, adopt a different manner of taxing the subjects or objects of taxation therein provided for, it is a constitutional requirement that it shall be done by general law' and so as to be uniform as to the class upon which it operates. The fundamental principles of the constitution governing the exercise by the legislature of the power of'taxation appear to be uniformity and equality in the distribution of the burdens of taxation, without taking from the law-making power the discretion to classify and tax occupations, franchises, privileges and business and property interests of certain kinds in a different manner from the manner prescribed for the taxation of property generally, but still requiring the rule of uniformity to be observed as to the class taxed, — that is, as to the constituents of each such class.”

It has repeatedly been held that the control of the public streets is vested in the legislature, and that such power of control may be delegated by the legislature to the municipalities of the State. Dillon, in his work on Municipal Corporations, (4th ed. sec. 656,) says: “The legislature of the State represents the public at large, and has, in the absence of special constitutional restraint, and subject * * * to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places.”

In People v. Walsh, 96 Ill. 232, the act of the legislature authorizing the South Park Commissioners to assume control of certain streets was called in question, and it was urged that the legislature could not transfer the control of the streets from one municipality to another. The court, in discussing that subject, on page 250, said: “The legislature represents the public. So far as concerns the public, it may authorize one use to-day and another and different use to-morrow. If the new use affects private rights, proceedings for condemnation may have to be invoked; but so far as it affects the public alone, its representative, in the absence of constitutional restraint, may do as it pleases.”

In Smith v. McDowell, 148 Ill. 51, in discussing the powers of municipalities over streets and alleys, the court, at page 62, said: “These municipal corporations are instru-mentalities of the State, exercising such powers as are conferred upon them in the government of the municipality. Their power is measured by the legislative grant, and they can exercise such powers, only, as are expressly granted ot-are necessarily implied from the powers expressly conferred. The legislature, representing the great body of the people of the State, when no private right is invaded or trust violated, (City of Jacksonville v. Jacksonville Railway Co. 67 Ill. 540,) may repeal the law creating them, or exercise such' control in respect of the streets, alleys and public grounds within the municipalities of the State as it shall deem for the interest of the people of the State.”

In Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, the constitutionality of an act of the legislature which empowered municipal corporations to set aside streets for pleasure drives was questioned. The court, at page 22, said: “While it is true that the public highways are for the use of the general public, it is at the same time true that the legislature is a representative of the public at large. As such representative it may grant the use or supervision and control over the highways to a municipal corporation, so long as the highways are not diverted to some use substantially different from that for which they were originally intended. There is no special restriction in the constitution of this State upon the power of the legislature ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in this regard. A city or incorporated town not only bears a property 01-private relation to the State, but it also bears a political relation thereto. In its political relation it is merely an agency of thе State. The municipal corporations of the State are the mere creatures of the State and exist by the authority of the legislature and subject to its control. Hence, when a city or incorporated town holds a street for the benefit of the public it holds it for the benefit of that entire public, of which the legislature is the representative. As the municipality is a mere agent of the State, the legislature can direct the manner in which it shall control the streets within its limits.”

In City of St. Louis v. Green, 7 Mo: App. 468, on page 475, the court said: “That the streets of the city are highways of the State, and therefore public roads, which every citizen has a right tq use, is a valid argument against stopping or unreasonable hindering of travel over the streets, but it is no argument at all against subjecting travel over those streets to rules and regulations; and it is surely no argument against a regulation which the corporation has imposed by express permission of, and in virtue of a special grant of power from, the legislature.” And again, at page 477: “The argument that the provisions of the charter auj thorizing a-license tax on private vehicles is void, as being a violation of the natural rights of the citizen, even if well founded, would be of no avail. A court cannot declare a statutory provision unconstitutional and void because it may regard it as oppressive and unjust, unless it can be shown that the supposed injustice is prohibited or the violated right protected by the constitution. (Cooley’s Const. Tim. 164.) The courts cannot declare statutes void because of their impolicy.”

In Ft. Smith v. Scruggs, 70 Ark. 549, (58 L. R. A. 921,) the court said: “The next question presented is whether the legislature has the power to authorize cities to impose a tax upon the privilege of driving vehicles upon the public streets. The contention on this point is, that a resident of a city has a right to drive upon the public streets, and that the right to do so is not a privilege that can be taxed. It is no doubt true that the city could not impose a tax upon the privilege of using the streets for driving vehicles upon them without legislative permission to do so. The right to drive on the public streets could not be treated as a рrivilege but for the act of the legislature making it one. But the streets belong to the 'public and are under the control of the legislature. (Elliott on Roads and Streets,— 2d ed. — sec. 21.) It is within the power of the legislature not only to make needful regulations concerning the use of the public roads and streets, but also to provide means by which they may be improved and kept in repair. In order to effect that purpose the legislature has, in effect, declared the use of the streets by wheeled vehicles to be a privilege and has authorized the city to tax the privilege. We know of no limitation on the power of the legislature that prevents it from passing such an act and thus authorizing the imposition of a reasonable tax for that purpose.”

In City of Terre Haute v. Kersey, 159 Ind. 300, (64 N. E. Rep. 469,) in upholding the validity of an ordinance which was essentially like the ordinance in the case at bar, the court, on page 311, said: “That the power of the legislature in matters of taxation for public purposes is unlimited, except so far as restrained by State or Federal constitution, is well settled. (Lоwe v. Board, 156 Ind. 163, (59 N. E. Rep. 466,) and cases there cited.) That the State possesses plenary powers over public highways and streets is a proposition also well settled. While it is true that a public street of a city or town is a public highway, open alike to travel thereon of every citizen, still this in nowise prevents the State, through the agency of its municipalities, from subjecting the right to use the street to reasonable conditions or restrictions. As cities in this State, under the law, are required to keep their streets in repair, the legislature, in the exercise of its discretion, appears to have deemed it proper to authorize common councils thereof, if they so desired, to exact that those who used them with wagons, carriages and other vehicles should contribute to such repairs by the payment 'of a reasonable amount on account of such use.”

It is, however, said, that section 9 of article 9 of the constitution contains further limitations upon the power of the legislature to authorize the municipalities of the State to exаct a license for the use of their streets. That provision of the constitution has been held to apply to the taxation of property alone, and not to the taxation of such intangible rights as the use of public streets. In Banta v. City of. Chicago, supra, on page 221, it was said: “Counsel insist that the provisions of section 9 of article 9 of the constitution of 1870 are equally applicable to the power of the city to exact the payment of license fees, and that the requirement of the said latter section that municipal taxes shall be so laid that they shall be uniform in respect to both persons and property must be complied with in an ordinance enacted for the purpose of raising revenue through the medium of license fees. The ordinance- under consideration levies a license fee upon each person pursuing the occupation of a broker, and requires that all such persons shall pay a uniform fee, without regard to the amount or value of the business transacted by the said brokers, or the capitаl they have, if any, invested in the business. The argument therefore is, the ordinance is not uniform in respect to persons and property, and for that reason is in contravention of said latter section of the constitution. We think said section 9 has reference only to taxes to be collected by assessments upon assessable property. Such was the view expressed by this court in Walker v. City of Springfield, 94 Ill. 364. When revenue is sought to be raised by the imposition of license fees, the authority exercised is that given by the provisions of section 1 of article 9 of the constitution of 1870, and it is only necessary, in order to comply with the provisions of that section, that the ordinance shall be ‘uniform as to the class upon which it operates.’ The ordinance under consideration excuses no one of the class upon which it operates from the payment of the license fee, but exacts a uniform fee from each person in said class. It is uniform in respect to the persons affected, and more is not required by the constitution.”

It is therefore appаrent that the only constitutional limitation controlling in any way the right of the legislature to confer upon municipalities in the State the right to exact a license fee for the use of their streets is, that the same must be by “general law, uniform as to the class upon which it operates,” and that therefore the statute and the ordinance drawn in question are not unconstitutional and void by reason of the fact, alone, that the legislature has not power to confer upon the municipalities of the State the right to exact a license fee for the use of their streets. The question here raised does not seem to be a new question in this State. In Gartside v. City of East St. Louis, 43 Ill. 47, a bill in chancery was filed by Gartside, who was using wagons for transporting coal upon the public streets of East St. Louis, to enjoin the city of East St. Louis from enforcing against him an ordinance which required a license fee to be paid to the city for the use of its streets by wagons and other vehicles. The charter of East St. Louis authorized the passage of such an ordinance and the city had passed the' ordinance. A demurrer was filed to the bill and sustained, and the bill was dismissed for want of equity. This decree was affirmed by this court. The court said (p. 52) : “In this case appellant, like the owner of a team passing over a toll bridge or ferry, must submit to a reasonable exaction. So of'a turnpike or a plankroad. In this case, as in those, the corporation is required to keep the streets in repair, and it is but reasonable and just that persons using them shall contribute, to a reasonable extent, to the expense and outlay for that purpose.”

This -court has also passed upon the question inferentially in the case of Wiggins Ferry Co. v. City of East St. Louis, supra. The facts in that case were, that the city of East St. Louis, by its charter, was granted the power “to regulate, tax and license ferries.” .Under the power granted by. the charter the city passed an ordinance fixing a license fee at $100 per annum for each boat. It was held that the provisions of the Illinois constitution in reference to taxation of property had no application to fеes exacted for a license, and that, not being a tax upon property but being a tax upon a privilege, it was not double taxation. The court also held that the ordinance did not violate the rule of uniformity, because it applied to all ferries and ferry boats of the city alike, and made no discrimination.

In Marmet v. State, 45 Ohio St. 63, an act of the legislature of the State of Ohio imposing a license on each vehicle used on the streets of cities of the first class was sustained. The court said: “It is further urged that the sections quoted are in conflict with section 2 of article 12 tof the constitution, which provides that ‘laws shall be passed taxing, by a uniform rule, all moneys, etc., according to its true value/ and is an attempt, under form of license, to raise money for general revenue. Section 29, if regarded as imposing a tax,' does not purport'to tax property; neither does it. An owner may use upon his own premises, and he may manufacture and may sell, any number of vehicles without coming within the provisions of this section. Only when he desires to use such vehicles upon the strеets must he pay the annual license fee.” And again: “Nor is this exercise of power as to vehicles, generally, an unreasonable exercise of it. The ownership of the streets is in the city, and the duty is imposed to keep them open, in repair and free from nuisance. This involves, in many ways, the expenditure of large amounts of money. * * * Expense of early renewal of the pavement is to be avoided only by careful and constant repairs, made necessary by constant use on the part of those who run vehicles upon the streets, and the better the pavement and the more carefully it is kept in repair the more useful and convenient it becomes for those who so use it. They thus receive a special, direct benefit by the original outlay and by the repairs from time to time, and by such use impose burdens upon the property owners and the public at large. A proportion of them— those who own taxable property — contribute in taxes towards the repair fund, (and may be among those whose property is subject to assеssment for the original improvement,) but many do not, and thousands of property owners use no vehicle of any kind. Why should not these favored ones pay a small sum towards making good that which they wear out ?” To the same effect are Ft. Smith v. Scruggs, supra, City of Terre Haute v. Kersey, supra, and City of St. Louis v. Green, supra.

The appellant, relies with great confidence upon ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the case of City of Chicago v. Collins, 175 Ill. 445, as establishing the principle that the use of the public streets is not a privilege which is subject to taxation, and that the tax imposed by the ordinance in the case at bar imposed a double tax, and is also violative of the principles of equality and uniformity required by the constitution. The only questions before the court for decision in that case are stated in the first paragraph of the opinion, as follows: “Two questions are presented by this record: Has a court of equity jurisdiction to enjoin the enforcement of an ordinance of a city? and has the city, under the express or implied powers conferred on it by the legislature, authority to аdopt this ordinance?” The first of these questions is not involved in this case. It was contended by the city that it had the implied power to impose a license tax under the power expressly conferred by the legislature to regulate the use of the streets. The contention of the appellee was that the tax could not be imposed as a license tax because it was not authorized by the statute, and that the ordinance therefore imposed a tax on property which was invalid because it was not uniform, and constituted double taxation. The court, at page 447, said: “It is contended that the ordinance is void because the city has no power -to require a license for private vehicles used on the streets of the city nor to impose a tax by way of license; that a tax so imposed on vehicles, on account' of their different values, would not be uniform.” The court held that the city had no authority from the legislature, either express or implied, to impose a license tax for the use of the public streets, and that the ordinаnce, therefore, was invalid as an exercise of the power to levy a license tax. The court also said that the use of the public streets is a right and not a privilege, and therefore not a subject of license. But at the time of the passage of the ordinance then under consideration the city had no authority to impose a license tax upon the use of the streets, — that is, the right to use the streets had not been made a subject of license taxation by act of the legislature, which has the paramount authority and control of the streets and also the supreme and absolute power in matters of taxation. Prior to the passage of clause 96 of the City and Village act the use of the streets was a common right, which was free and open to all without charge and without toll, and upon this right the city had no power to impose a license tax; but by the enactment of clause 96 the use of the public streets, which before its enactment was a common right, became, by virtue of the legislative act, a privilege, and subjeсt to a license tax at the discretion of the legislative body of the city. What was said by the court in the Collins case must be construed in accordance with the statutes then in force. When a statute substantially like the statute under consideration in- the case at bar came before this court in the Gartside case, the court held that the right or privilege of using vehicles on the streets was a proper subject of license taxation. Clearly,, therefore, the court, in the Collins case, did not mean to say that nothing can be subject to license if it be lawful to do the thing without legal authority. There are a great many things which had been done or enjoyed as a matter of right, and which later, by legislative act, were properly made the subject of license taxation. In Cooley on Taxation, (2d ed. p. 596,) in a paragraph a part of which is quoted in the Collins case, the true nature of a license is explained, as follows: “A license is a privilege granted by the State, usually on payment of a valuable consideration, though this is not essential. To constitute a privilege the grant must confer authority to do something which without the grant would be illegal, for if what is to be done under the license is open to every one without it, the grant would be merely idle and nugatory, conferring no privilegie whatever. But the thing to be done may be something lawful in itself and only prohibited for the purposes of the license, — that is to say, prohibited in order to compel the taking out of a license. This is always the case where that which is licensed was not unlawful at the common law.”

After holding that the city had no authority from the legislature to impose a. license tax upon the use of the streets of the city, and that therefore the ordinance was not a valid exercise of the licensing power, the court, in the Collins case, next discussed the question whether the ordinance in that case was a valid exercise of the city’s power to levy a property tax. • The court having decided that the ordinance did not impose a valid license tax, said that it was an attempt to levy a property tax; that the tax which was thus attempted to be levied was open to the objection that it was double taxation, and also that it violated the principles of equality and uniformity required by section i of article 9 of the constitution. The closing paragraph pf the opinion is as follows: “The authority to impose a tax or to exact a license must clearly appear and must be strictly construed. If there is a doubt as to the right, it must be resolved adversely to it. In this case there is no express power given the city council to impose this license fee, and no implied power arises which gives the right. It has no power to levy a tax in this manner. In any view of the case the city had no power to adopt this ordinance.” The court did not say, nor can it be implied from what was said, that if the city council had been authorized by the legislature, as in the case at bar, to impose a license tax upon'the privilege of using vehicles on the public streets the ordinance would have been invalid, either because the right to use the public streets was a common right inherent in the public and open to all, or because such license tax would have been double taxation and also violative of the principle of equality and uniformity, as required by the constitution. The Collins case, ■therefore, having been decided at a time when there was no statute authorizing the city council to impose'a license tax for the use of vehicles upon the public streets is in no way in point as an authority to sustain the contentions of appellant In the case at bar.

Complainant also contends that it has already been assessed for and has paid an ad valorem tax upon its wagons, which tax is equal to and commensurate with that assessed upon other personal property in the city of Chicago; that it has also paid a license fee upon its vocation of carter or public teamster, and has been granted a license by the city of Chicago to pursue that occupation under an ordinance enacted by the city council in pursuance of the authority conferred upon it by paragraph 42 of seсtion 1 of article 5, chapter 24, which provides that the city council may license, tax and regulate hackmen, draymen, omnibus drivers, carters, etc., and that the statute and ordinance under consideration in this case are void, invalid and illegal and unconstitutional because they authorize double taxation.

The law is well settled that the owner of vehicles used upon the public streets and highways may be required to pay an ad valorem tax upon such vehicles as property and also may be required to pay a tax upon the right or privilege of using such vehicles in his business, — that is,, an occupation tax. The subject of 'the ad valorem taxation is property. The subject of the other taxation is a right or privilege, — an entirely distinct and different thing. Because these two things are distinct and different the two taxes do not constitute double taxation. The question which is now to be considered is whether or not, in addition to the ad valorem tax on vehicles, as property, and a license tax on the right to pursue an occupation in which vehicles may bе used, there may be imposed also a license tax upon the right or privilege of using vehicles upon the .public streets and highways. Precisely the question is, whether or not a license tax upon an occupation in which an owner of vehicles is engaged and in the pursuit of which he uses such vehicles, and a license tax upon the right to use such vehicles upon the public streets and highways, are taxes upon the same thing, and hence double taxation.

No matter what the subject of taxation, some person must pay the tax. When one person pays a tax for the privilege of pursuing his occupation and for the privilege of using vehicles on the public streets, he is paying taxes on distinct and different things, and the fact that he may use vehicles in his occupation can make no difference. For example, two men each carry on a laundry. One uses vehicles, the other does not. Can the man who has the vehicles justly claim exemption from the tax on the privilege of using vehicles on the streets because he has paid his occupation tax? This occupation tax was paid for the privilege of carrying on a laundry, and he may or may not make use of the further privilege of using vehicles on the streets. The taxes which complainant in the case at bar must pay are levied upon three separate and distinct subjects: (i) An ad- valorem tax on its vehicles, as property; (2) an occupation tax or license on the privilege of carrying on business as a carter or public teamster; and (3) a license tax on the privilege of using its vehicles on the “public streets. Taxation upon each of these three different subjects is not double or triple taxation simply because one person may have to pay two or all of the three taxes, since it is not the person who is taxed, but his property and his privileges. One person may avail' himself of a half-dozen or more different privileges, for each of which he may be required to pay a tax or license fee.

The precise question here being discussed was before the Supreme Court of Missouri in City of St. Louis v. Wеitzel, 130 Mo. 601. In that case it appeared that the city council of St. Louis had passed an ordinance imposing upon all persons engaged in the business or occupation of hauling garbage an annual license fee of $20 for each cart or wagon used in such business. There was also an ordinance enacted, under power conferred by the legislature in the city charter, imposing a license tax upon vehicles for the general use of the streets. Weitzel paid his license tax for the use of his vehicles on the streets, and urged that such license tax having been already paid by him upon his vehicles, the ordinance imposing an occupation tax of $20 for each wagon was an attempt to collect a double tax or license fee. In holding that the ordinance was valid and that it did not impose double taxation, the court, at -page 619, said: “But it is said that, the evidence disclosing that a license tax had already been paid on the wagon, it ‘cannot be taxed twice for the same purpose.’ This is doubtless correct, but thе city is not here attempting to impose a double tax for the same purpose. The occupations are entirely different, and the city, under paragraph 5, section 26, of its charter, has the power ‘to license, tax, regulate or suppress all occupations, professions and trades not heretofore enumerated, of whatever name and character.’ This would, of course, include power to license, — tax the ‘business of hauling garbage.’ (St. Louis v. Bowler, 94 Mo. 633.) Under its charter powers the city may levy these taxes: First, a tax on property; second, a vehicle tax for use of streets; third, a tax on the business or occupation.—St. Louis v. Green, 7 Mo. App. 468, 470; St. Louis v. Sternberg, 69 Mo. 302.”

Another well considered case, precisely in point, is Kansas City v. Richardson, 90 Mo. App. 450.

In Frommer v. City of Richmond, 31 Gratt. 646, the appellant was a butcher, who was duly licensed by the city council and kept a stall in one of the city markets, for which he paid rent to the city, tie also paid the ad valorem tax upon his wagons, which were listed by him as á part of his personal property. An ordinance was passed by the city council imрosing a license tax'upon wagons, drays and carts used by the owners thereof in the city of Richmond. The court held that the ordinance was valid, and on page 650 said: “It is in no sense a double tax. The city does not tax them as property, but simply requires the license for the privilege of using it's streets in the conduct of his business in the city.”

In the case of Gartside v. City of East St. Louis, supra, the words of the charter and the ordinance are similar to the statute and ordinance in this case, and the court held both to be valid. In that case the charter gave the common council the power “to direct, license and control all wagons and other vehicles conveying loads within the city and prescribe the width and tire of the same,” and the ordinance prohibited persons without a license “from hiring out or keeping for hire or use, or causing to be used for hire in the transportation of persons ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or property, from one part of the city to another, or from places within to places without the city, or from places without to places within the city,” any wagоn or other vehicle without paying a license fee of $10 for each team, and the ordinance established a schedule of rates in the same manner as does the ordinance at bar. The Gartside case is to-day the law of this State, and is conclusive authority, we think, on the proposition that said statute and ordinance are valid enactments, and must control in this case unless it is to be overruled.

It is also urg-ed that clause 96 of section 1 of article 5, chapter 24, is void because it does not apply to villages as well as cities. This is a misapprehension of the law. The first clause of section 1 provides: “The city council in cities, and president and board of trustees in villages, shall have the following powers.” Clause 96, hereinbefore set out, is one of the enumerated powers by said section 1 conferred upon the city councils in cities and the president and board of trustees in villages, and therefore applies to villages as well as cities.

Other objections have been urged to the constitutionality of said provision of the statute and said ordinance, but we deem them to be without force.

Finding no error in this record the decree of the circuit court will be affirmed.

n m Decree affirmed.

Mr. Chiee Justice Cartwright, dissenting.