11 Neb. 547 | Neb. | 1881
In the consideration of this case it should be kept in mind that to justify a court in pronouncing an act of the legislature unconstitutional, it must be clear and free from reasonable doubt that it is so, not a doubtful and argumentative implication. Or, in other words, a statute should not be held invalid unless it is clearly forbidden by the paramount law. Such substantially has been the holding of all courts speaking upon this subject. Cooper v. Telfair, 4 Dallas, 14. Sharpless et al. v. The Mayor etc., 21 Pa., 147. Adams v. Howe, 14 Mass., 340. City of Lexington v. McQuillan, 9 Dana, 513. Santo v. The State, 2 Ia., 165. The State,
The primary and chief reáson urged for the reversal of this judgment is, that the act under which the conviction was had is in conflict with Sec. 1, Art. IX of the constitution of this state, which is that: “The legislature 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 and franchises, the value to be ascertained in such manner as the legislature shall direct, and it shall have power to tax peddlers, auctioneers, brokers, hawkers, commission merchants, showmen, jugglers, inn-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph, and express business, venders of patents, in such manner as it shall direct by general law, uniforma as to the class upon which it operates.”
The ground of the alleged infraction of this provision of the constitution is, that the money exacted for a license issued under the act in question is simply a tax upon the business of the licensee, and, as necessarily imposed uxxder the law, lacks the essential element of uniformity. As we view the law, however, this question of uniformity is not necessarily involved in the decision to be here made, and, even if the claim that this exaction of license money is but taxation, pure and simple, whatever might be said of the manner of its enforcement, it is not at all clear to our minds that the law itself is wanting in this particular.
This statute is in many respects a peculiar one. In the first place it will be observed that, without action by the local authorities under it, it is strictly a prohibitory law throughout the entire state. The eleventh
As before said, this prohibition is general, covering the whole state, but, presumably out of respect and in deference to the varying sentiments of the local communities in the several counties, cities, and villages on the subject of liquor traffic, provision is made for its legalization under very stringent regulations through the medium of licenses, which may be obtained if the local authorities in their discretion see fit to grant them. In effect, it is simply' a local option law, for the local officers may either license, or refuse to license, as they “shall deem best.”
By sec. 5, art. VIII of the constitution “All fines, penalties, and license moneys, arising under the general laws of the state,” belong to the school fund of counties, cities, and other local subdivisions, respectively, in which they are collected', so that, even if these license moneys were to be deemed taxes, within the meaning of the constitutional provision relied on, and to which we shall hereafter refer more particularly, they are not state, but merely local taxes, and if enforced within each of the inferior jurisdictions according to some uniform rule, the objection here urged could have no force, for it seems to be well settled that this rule of uniformity is fully satisfied if duly observed within each jurisdiction for whose use the taxes are levied; state taxes uniform throughout the state, county taxes throughout the county, city taxes throughout the particular city, etc., being all that is .required, although levied under a general law of the state.
But do these license moneys fall within the purview of the provision of the constitution above quoted ? It is strenuously insisted by counsel for the plaintiff in error in their brief, and was in oral argument at the bar, that they do, and many authorities were cited as sustaining that view, the more prominent of which we
The next ease, that of Essex v. Barber, 7 N. J. L., 64, is one in which, it appears that, in the incorporation of certain towns, power was given them to license innkeepers under certain restrictions. Afterwards ageneral act was passed giving power to the several county authorities to license inn-keepers, and also to tax them from ten to seventy dollars; according to certain regulations. The regulations about the power to license were, that innkeepers should be recommended by certain persons; that their licenses should be for only one year; that they should enter into recognizance with surety, etc. The regulations surrounding the power to impose the tax respected the situation and advantages of the place for an inn; the limitations of the amount; the paying down of the money, and the way it should be appropriated. The last named act also contained a provision that nothing contained therein should “affect the rights, powers, privileges, and immunities given and granted by law to any city or town corporate, relative to the licensing of inns and taverns,” they “ conforming to the diz’ections,
In Kip v. The City of Paterson, 26 N. J. L., 298, an ordinance of the city required all persons who sold hay or other produce, and delivered the same within the city, to pay a fee of five cents. This was held to be an unwarranted and unreasonable exercise of the power to regulate the police of the city, and unauthorized by the charter. This was a question solely of municipal power.
In Mayor, etc., v. Second Ave. R. R. Co., 32 N. Y., 261, it was held that an ordinance imposing a license duty upon city cars, for revenue purposes only, was not an ordinance for police and internal government. Of this ordinance the court said: “There is nothing for the railroad corporation to do but to pay the mayor the-sum of fifty dollars annually for each car, and receive in return a license or certificate that the money has been paid. The ordinance imposes no duties to be observed by the company or its servants, but the single act of paying the money. It prescribes no regulations in regard to the size, dimensions, comfort, and cleanliness of the cars, the speed at which the same shall be run, the manner of receiving and discharging passengers, their numbers and names, and the stations at which they shall stop. Regulations of police are regulations of internal or domestic government, forbidding some things, and enjoining the performance of others, for the security and protection and to promote the happiness of the governed. The only act enjoined by the ordinance in question is the payment of the
The case of Commonwealth v. Stodder, 2 Cush., 562, concerned a certain ordinance of the city of Boston relative to hacks, coaches, omnibuses, etc., requiring them to be licensed, and exacting in payment therefor from one to twenty-five dollars. This ordinance -was passed under a provision of a statute entitled, “An act to prevent obstructions to the streets of cities, and to regulate hackney coaches and other vehicles,” which provided that the mayor and aldermen of any city should “have power, from time to time, to make and adopt such rules and orders as to them shall appear necessary and expedient for the duo regulation in such city of omnibuses, hackney coaches,” etc., “ used or employed wholly or in part in such city, whether by prescribing their routes and places of standing-, or in any other manner whatsoever.” The court held, first, that the exaction of money for a license was unauthorized; and, second, that as to persons residing out of the city, and running carriages into the city and back again, for the conveyance of passengers, there was no authority under the law to exact even the taking of a license.
In Mays v. Cincinnati, 1 Ohio St., 268, it was decided that “the sum demanded for a license to pursue an
In St. Louis v. Boatmans’ Ins. Co., 47 Mo., 150, the court, while holding that where a city is simply au-. thorized to license, it cannot also tax the licensee, said: “ The words ‘ to license ’ may imply the power to tax, when such is the manifest intention, but, taken disconnected and alone, they will not generally confer that authority.” In this case the power conferred by the charter was to license and tax grocers, horse railroad cars, hackney carriages, theatrical and other exhibitions, shows, and amusements, billiard tables, etc., and, in the"same connection, simply to license insurance companies. The court was of opinion that those provisions being found in the same section showed that the mind of the lawgiver was directed to the subject, and that the power to tax was given whore it was intended to be exercised, and that it was withheld where it was not so expressed.
In Collins v. Louisville, 2 B. Monroe, 134, the authority given to the city was: “ To appoint measurers of lime, and coal, and wood, brought to the town for market, by land or water, and sold therein, and to affix a reasonable allowance to such measurer, and to make such regulations as may bo necessary and proper for carrying the same into effect, and to inflict penalties for the breach of such regulations.” It appears that under this authority it was ordained that the seller of coal brought to the city by water should pay a half cent per bushel for what was sold and delivered in carts, and a quarter of a cent for what was sold in bulk upon the boat. And the measurer was required to pay the
In Wendover v. The City of Lexington, 15 B. Monroe, 258, it appeared that the legislature had authorized the corporate authorities to require “ all lottery offices and agencies within the limits of the city to take out licenses,” and to demand “for each license so issued a sum not exceeding one hundred dollars.” In construing this statute, it was held that, as to lotteries for which the state had received no bonus in authorizing the scheme, such tax was lawful, but as to those for which a bonus had been received, it could not be sustained. •
Mason v. Trustees of Lancaster, 4 Bush., 406. In this-case .it was simply decided that the trustees of Lancaster, being duly authorized by act of the legislature, might license taverns, and exact a tax therefor not exceeding two hundred dollars per annum, although they had paid for the same period both a United States and state license tax.
Kniper v. Louisville, 7 Bush., 599, is also one in which a delegated power was involved. It simply holds that
The case of Youngblood v. Sexton before referred to, on the question of uniformity, is cited upon the point we are now considering. It appears that the constitution of Michigan provided that “the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors.” The court, in construing this provision, decided that the tax was not a license ; that whether taxed or not, the traffic, not being prohibited, was legal. And, quoting from the language of Mr. Justice Manning in the case of Chilvers v. The People, 11 Mich., 43, the court said: “The object of "a license is to confer a right that does not exist without a license.” Within this definition, a mere tax upon the traffic, unless its payment confers some right that otherwise would not have existed, can in no sense be properly called a license. In this case it seems that the very act which imposed the tax repealed a prior law which forbade the traffic and declared it illegal.
Another case cited on this point is that of Chilvers v. The People, just referred to. The subject of con
In State v. Hoboken, 33 N. J. L., 280, the charter of Hoboken authorized the city “ to regulate the building of vaults, and the laying of water and gas pipes in and under the streets.” Under this authority an ordinance was passed, assessing applicants for the privilege of building vaults in front of their dwellings, a sum of money, and it was held not tó be within the power conferred by the charter, nor within the usual police powers given to corporations for the maintenance of peace and good order, and was therefore void.
Vo have thus alluded, as briefly as practica, 'e, to all the principal authorities cited in support o the claim that, within the purview of the constitution the. money exacted for a license to traffic in intoxicating liquors, under our law, is a tax, and must therefore be imposed by a uniform rule. By turning to these cases it will be found that, with perhaps one or two exceptions, the question in each of them concerned the power of corporate authorities, under the charter, or law by which they were governed, to require the payment of money for a license to engage in some particular business, or to do some particular thing otherwise prohibited, and made illegal. And the holding in each of
. By the constitution of this state, the legislature, within certain specified inhibitions and limitations, is invested with full legislative power. And this power includes, as no one will deny, that of police regulation, which being neither defined nor specially limited, is practically left by the constitution to legislative discretion, so long as no right secured by that instrument is encroached upon. Taxation is also a legislative power, and is specifically mentioned in the constitution, but always in connection with the subject of revenue, for the support of the government generally, or some particular department or branch of it. And it is in such connection that we find the requirement of uniformity. This being so, we are led to conclude that this constitutional injunction has reference solely to taxation, pure and simple, according to the commonly accepted meaning of that term, for the purpose of revenue merely, and not those impositions made,incidentally, under the police power of the state, exerted either directly or by delegation, as a means of constraining and regulating what may be regarded as a pernicious or offensive act or business. And in this view we have the support of many adjudged cases, a few of which only will be referred to.
In Baker v. The City of Cincinnati, 11 Ohio State, 534,
And in Thompson v. The State, 15 Ind., 449, it was decided that a license fee of fifty dollars for the sale of liquor, was not a tax within the meaning of the constitutional provision requiring a uniform rate of taxation, which related to the general levy alone. In the words of the opinion: “ Taxation was not the object of imposing it” (the license fee) “and the legislature was not bound to appropriate the proceeds to any object for which the state is forbidden to raise money by local or special taxation. It was imposed in the exercise of the rightful police power of the state, and is an incident of a legitimate police regulation. Hence it is not within the prohibition * * * of the constitution,” against “local and special taxation for state purposes.” To the same effect is The Bank v. The City of New Albany, 11 Ind., 139.
The Board of Trustees of Falmouth v. Watson, 5 Bush., 660, is an instructive case on this point. It appears that, by legislative grant, the board of trustees of Falmouth were given “the exclusive control and right to grant licenses for the sale, by retail, of all spirituous, vinous, and malt liquors within said town, or within one mile of said town,” and the sale of such liquors without such license was prohibited. It was contended that the statute conferring this power upon the trustees,
In the case of The People v. Thurber, 13 Ill., 554, the court, in considering the effect of a provision of the constitution of that state which requires that the mode
In Anderson v. The Kerns Draining Co., 14 Ind., 199, the court, in construing a constitutional provision which declared that the legislature shall provide for a “ uniform and equal rate of assessment and taxation,” hold that it did not apply to certain local taxes levied for draining purposes, and said that “it did not prohibit indirect" taxation by way of licenses upon particular pursuits. Such indirect taxation may be made effectual as a police regulation.” And in Bright v. McCullough, Treas., etc., 27 Id., 223, it is said that this constitutional provision is a “restriction upon the otherwise discretionary powers of the legislature, and prescribes the rule for its government in authorizing the levy of taxes, and it must be governed by that rule, whether the levy be for the state at large, or for a minor subdivision. Indirect taxes, imposed not merely for the purposes of revenue, but in a restraint of a particular business or calling, or as a license on particular
Many other cases of like import are at hand and might be referred to, but these are enough to show that the idea of a license fee or imposition not being ■within the ordinary or constitutional signification of of the word “tax” is no new doctrine evolved now for the first time by this court to meet an exigency of this ease, but that it is a well understood rule which the courts have constantly applied in dealing with questions similar to the one we are now considering. To our minds it is clear that the restriction relied on has no proper application to this case, and that the authority given by the act regulating the sale of spirituous liquors, is but a proper exercise of the police power of the state, of which, by the constitution, the legislature is made the sole custodian and dispenser, and not an exercise of the power of taxation. That regulation of a traffic, believed by the legislature to be pernicious in its effects upon society, and not the raising of revenue merely, is the chief design of the act, it would seem no man of intelligence can doubt, rvho reads it. It will be seen that a license cannot go out, as a matter of course, to whoever may apply, on payment of the required fee, but only when “deemed expedient” by the officers having the matter in charge, and on “the application by petition of thirty resident freeholders of * * * * the precinct where the sale of such liquor is proposed to take place, setting forth that the applicant is a man of respectable character and standing, and a resident of this state, and praying that a license may be issued to him.” Sec. 1 of the act, chap. 50, Comp. Statutes, 333.
Among the more prominent matters of regulation we find that by section eight, “ Every person licensed as herein provided, who shall give or sell * * any intoxicating drinks to any minor, apprentice, or servant, under twenty-one years of age, shall forfeit and pay for each offense the sum of twenty-five dollars.” By section ten, the sale to Indians, insane persons, idiots, and habitual drunkards, is prohibited under a penalty of fifty dollars. Section eleven provides that “All persons who shall sell or give away upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks, without having first complied with the provisions of this act, and obtained a license as herein set forth, shall for each offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars,
There are other matters of regulation in this act, but these will answer our present purpose, which is to show that, although a large license foe'is required, the conclusion is irresistible, that the leading motive of the legislature in enacting the law could not have been the raising of revenue, but rather to thoroughly regulate, and as far as practicable suppress a traffic, the
It is further claimed that the constitution is violated by sec. 4 of the act, in providing for an appeal to the district court from the decision of the county board. As we understand this provision, an appeal is allowed only from a decision of the board upon the question of whether the applicant for a license has been guilty of a violation of any of thé provisions of the act within one year; or whether any former license issued to him has been revoked for a misdemeanor against the laws of this state, and not from their decision as to the advisability of licensing the traffic at all., The determination of this latter question seems to be left by the ■first- section to the sole discretion of the board of commissioners in counties, and to the municipal authorities in cities and villages.
Another objection urged to this law is that sec. .18 is a violation of sec. 6, art. I of the constitution, which guarantees the right of trial by jury. We fail to see any merit in this point. The section complained of simply provides what effect may be given to certain evidence in fixing responibility for injurious results of intoxication. We think it is competent for the legislature to do this, upon the same principle that statutory effect is given to various kinds of evidence, such as historical works, books of science or art, entries, and other writings of persons deceased, books of account, notarial protests, etc. It is certainly not an un
Still another ground of alleged unconstitutionality in this law is, that sec. 28 confers upon justices of'the peace the pardoning power, whereas by sec. 13, art. Y of the constitution, it can be rightfully exercised only by the governor of the state. The section in question makes intoxication a misdemeanor, and affixes as punishment therefor a fine of ten dollars and costs of prosecution, 'or imprisonment in the county jail not exceeding thirty days. And it provides that the magistrate before whom a conviction is had may remit any portion of such penalty and “order the prisoner to be discharged upon his giving information, under oath, stating when, where, and of whom he received the liquor which produced the intoxication, and the name and character of the liquor obtained.”
In the first pla.ce we do not think that the authority here conferred can properly bo classed as a pardoning power. It is not of the character of that given by the constitution to the chief magistrate of the state. It is a provision of the law excusing an act which it makes a misdemeanor, upon clearly specified conditions. Without these conditions are strictly complied with, the magistrate has no power to relieve the accused from any part of the penalty. One requirement is substituted for another. Not so, however, in the case of pardon under the provision of the constitution. In that, full power is given to the governor, and he may exercise it in his discretion, and for such reasons as to him may seem sufficient. To be pardoned, in the
The only remaining ground of constitutional objection to the law is, that it arbitrarily prohibits the sale of liquors within a strip of two miles around an incorporated city or village, while it may be licensed both within and without that limit. This provision viola,tes no command of the constitution. It is general in its application to all territory of the state falling within such description, and is but an exercise of the police power intrusted to the legislature. It is referable to that principle which enables the legislature to prohibit liquor selling on Sundays and-'on days of elections, or within the vicinity of fairs, camp-meetings, and other gatherings of the people. It is the power exerted by the legislature of Kentucky, and recognized in Board of Trustees of Falmouth v. Watson, ante, in the provision that persons engaged in the retail of spirituous liquors within one mile of an incorporated town must have a license to do so from the proper officers thereof, although already licensed by the county authorities under another general law of the state.
The only remaining objection to the judgment to be noticed is, the alleged error of the court in ruling from the jury the license issued to the prisoner under a a prior statute, since repealed. It is conceded by counsel, and so the law is, that it is competent for the legislature to revoke a privilege given by a license. The citation of authorities is unnecessary on this point. But it is contended, very strenuously, that the rejected license had not been annulled, and that therefore it ought to have been admitted as a complete defense to the charge against the accused.
This act, as wc have seen, went into operation on the first day of June, 1881, and by the above provision the entire traffic is, by the most expressive language, absolutely prohibited, except by persons “having first complied with the provisions of” — not some other law, but of — “this act” Now suppose, for instance, that the traffic had been prohibited as above, without any provision for its legalization by the procurement of a license, would any one contend that effect could be given to an authority granted under a prior statute? Very clearly not. So we say that, the prohibition being absolute, except upon certain specified conditions, those conditions must be observed or the traffic is illegal. We see no escape from this conclusion.
We have now carefully considered all of the objec
Judgment affirmed.