10 S.D. 156 | S.D. | 1897
This original application for a peremptory writ of mandamus made by the state on the relation of the attorney general, is to compel the defendant, C. Buechler, treasurer of Hutchinson county, to transmit to the state treasurer $187.50, being three-eighths, or 37£ per cent., of the money paid by certain saloon keepers to said county treasurer for licenses already granted to sell intoxicating liquors at retail, pursuant to chapter 72 of the Laws of 1897, which, among other things, provides for a license of $400 per annum, beginning July 1st, and expiring June 30th, currently, to be paid to the county treasurer annually in advance, on or before the 1st day of July in each year, or a pro rata portion thereof for the remainder of the year in case application therefor is made at any time after the 1st day of July. Before engaging in the business of selling intoxicating liquors at retail, and on or before the 1st day of July in each year thereafter, the dealer must file with
No claim is made that the aggregate license which under the law may be imposed is unreasonable, but counsel contend that Sec. 7, in so far as the same requires a remittance to the state treasurer, is plainly a revenue measure, and therefore repugnant to Art. 11 of the constitution, which requires the legislature, by general law, to provide funds for the disbursement of all lawful demands against the state by a uniform tax, levied only upon real and personal property according to the value thereof in money, and that every tax so levied shall specify the object thereof, from which the same must never be diverted. Pursuant to the will of a majority, aroused to consciousness of the fact that the retail liquor traffic is an expensive evil, resulting in irreparable injury to society, entailing upon the public the burden of increased pauperism and additional criminal prosecutions, often to no avail, the legislature deemed the license system to be the most effective scheme by which to restrict, regulate, and control the business, and the law enacted unmistakably partakes of the nature of a police regulation, designed to impose upon the dealer the burden of liquidating, so far as practicable, the damage thus occasioned. The primary object of the law, as specifically declared by the title, is to ‘ ‘provide for the licensing, restriction, and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors”; and the fact that the general revenue is incidentally increased is not sufficient to invalidate the act, or subject the same to any constitutional objection. The general proposition is founded on reason, and well supported by authority, that constitutional provisions prohibiting taxation except in pursuance of law, and requiring a uniform levy upon all real and personal property
The occupation being one which the lawmaking power had the right to prohibit entirely or partially suppress by the issuance of a license under specified restrictions to persons only who possess certain moral attributes, the money thus received is in no constitutional sense a'■tax, and the same may be rightfully devoted to such public use as the legislature may direct, independently of the expense occasioned by the traffic, and without regard to any of the considerations which prompted the license enactment. Says Mr. Tiedeman, at. page 276 of his recent treatise on the Limitations of Police Power: “The money collected by way of license as a police regulation may go into the state treasury for general revenue purposes, and need not be devoted specially to the relief of burdens which the prosecution of the trade or occupation imposes on the state, provided that the character of the occupation is such that restrictions upon its pursuit, looking to its partial suppression, would be constitutional, whatever their character may be. Since the primary object of such law would be to operate as a restriction upon the trade, and not to raise a revenue, the inch dental increase in the revenue would constitute no valid objection to the law.” In holding that the question is one of legislative expediency, and not for the courts, and that the legislature has absolute power to direct the public use, to which funds
Having found the principle involved in the act disposing of the license fees paid to the county treasurer repugnant to no constitutional provision, and clearly within a sound legislative discretion, we will consider, under standard rules of construction, the various provisions of the chapter, and, if necessary, other enactments in pari materia, for the purpose of ascertaining just what the legislature intended by the language employed in Sec. 7, as well as the recitals of other provisions of law pertaining to the conditional deposit of money with the county treasurer, as one of the initiatory steps in the procurement of a license to sell intoxicating liquors. In support of the theory that the money which the county treasurer is required to transmit to the state treasurer to be placed to the credit of the general fund is, in effect, a tax levied against the county upon the issuance of a license, counsel for the defend
One of the positions which counsel for the defendant strive to maintain is ‘ ‘that if the state is entitled to any portion of the license, there is no construction that can be placed upon Sec. 7 of the act by which it can be determined what portion is to be paid to the state, and where the amount is to be obtained by the county treasurer to pay the state.” It has been noticed that 1400 is the amount which must be paid to the county treasurer as an annual license fee, and a proportionate amount thereof is required when a license is granted for a recognized fraction of a year. It will therefore be readily seen that the 8150 mentioned in said section relates to the full period of 12 months, commencing on the 1st day of July, and ending June 30th of that year. The general purpose and intent of a legislative enactment, considered, when tnecessary, with existing laws bearing upon the subject to which any of its provisions relate, is a reliable key to the meaning of its parts, and a criterion for the expansion of restricted expressions. Says Mr. Black, at page 84 of his treatise on Interpretation of Laws: “Words may be interpolated in a statute, or silently understood as incorporated in it, where the meaning of the legislature is clear, plain, and unmistakable, and such supplying of words is necessary to carry out that meaning, and make the statute sensible and effective.” To the same effect, see Suth. St. Const, p. 318; Lawrence Co. v. Meade Co., 6 S. D. 528, 62 N. W. 131; Jones v. Trust Co. (S. D.) 63 N. W. 553. The entire chapter,
It is a significant fact, appearing from the record, that the defendant, though a layman, knows the exact amount to be forwarded to the state treasurer for licenses issued for less than one year, and stands ready to remit three-eighths of all money received on account of licenses issued under the law in case the same is found to be constitutional. Moreover, it is a matter of common knowledge that numerous county treasurers have, without apparent difficulty, correctly construed the law, and have forwarded to the state treasurer three-eighths, or 37-J per cent, of the money paid to them for licenses issued. Our conclusion is that the law and the circumstances of the case entitle the relator to a peremptory writ of mandamus, and the same will therefore issue as prayed for.