delivered the opinion of the court.
In the complaint in this action it is alleged that for more than six months during the year 1914 the defendant sold intoxicating liquors in the city of Roundup without having a licensе permitting him to do so. The prayer is for judgment for $264, the amount required to procure a liquor license to do business for six months in a city of the class tо which Roundup belongs, and for certain penalties. The answer admits all the material allegations of the complaint, and, by way of special defense, alleges that during all the times mentioned there were outstanding in full force and effect in the city of Roundup the maximum number of liquor licеnses allowed by law, by reason whereof the defendant could not procure a license, and the county treasurer could not lawfully issue one to him. A motion to strike this affirmative defense was overruled, and the trial of the cause resulted in a judgment for defendant, from which this appeal is prosecuted.
It is the general rule that, in the absence of express legislative authority an action cannot be maintained to collect a license fee where a license has not been applied for or granted. (25
With the enactment of the Codes in 1895 a general license statute went into effect. Under its terms almost every trade, profession and business was subjected to the payment of a license tax. There were not any restrictions upon the number of licenses which might be issued, and no question of discretion was involved. Upon the payment of the required fee the license issued as a matter of coursе, and unless the state was in a position to grant a license, it could not exact the license fee. The sections mentioned above wеre all of that general legislative scheme.
The language of section 2750 is that the county treasurer must direсt suit in the name of the state “against any person required to take out a license who fails, neglects, or refuses to take out such license or who carries on or attempts to carry on business without such license.” When the statute was enacted that language had a definite and wеll-understood meaning. “Any person required to take out a license” meant any person engaged in a profession, trade or occuрation for which a license tax was required, and a person engaged in any such business upon the payment of the required fee could demаnd a license as a matter of right. When we consider the history of our license legislation and the provisions of sections 2749, 2752 and 2755, in connection with the terms of section 2750, and realize that when these statutes were enacted the licensing authorities could not refuse a license to anyone who applied for it and paid or tendered the required fee, we are driven to the conclusion that in the enactment of seсtion 2750 the legislature intended nothing more than to provide a means for the collection of a license fee from one entitled to a license as a matter of right upon payment of the fee. Though our license statutes have been changed in many respects since 1895, there is not anything in the subsequent legislation to indicate that section 2750 should be given a different meaning from the one manifestly intended in the first instance. It cаnnot be said that this construction renders that section a dead letter.
An attempts is made to distinguish between a license tax or occupation tax, on the one hand, and a license fee exacted merely for regulation purposes. Our license statutes fail to indicate the particular purpose for which they were enacted. Section 1, Article XII, of the Cоnstitution authorizes the legislature to impose a license tax, but in State v. Camp Sing,
The defendant may be prosecuted under the criminal laws, but he cannot be made to pay the license fee and be denied the license — the consideration for the fee.
The judgment is affirmed.
'Affirmed.