113 N.C. 697 | N.C. | 1893
This is an indictment for the violation of chapter 75, Acts 1891, and it is found in the special verdict that the defendant, “without having first procured a license therefor from the Treasurer of the State of North Carolina, did hire six laborers in the county of New Hanover, in the State aforesaid, to be employed beyond the limits of the said State, and did solicit other laborers in said county to hire
The act referred to excludes, in express terms, from its operation any of the counties in the State which are west of the said line, except a few which are therein specifically named; and thus it appears that the same occupation may be lawfully and freely pursued in many of the counties of North Carolina, while in others a license fee of $1,000 is required to be paid into the State Treasury; and its pursuit, without such a license, is denounced as a criminal offence and punishable by a fine of “not less than $500 and not more than $5,000,” or by imprisonment in the county jail “ not less than four months, or confinement in the State prison at hard labor not exceeding two years, for each and every offence, witliin the discretion of the Court.”
It must be manifest from these provisions that the principle of uniformity is entirely disregarded, and that, if the act is to be considered as an exercise of the taxing power of the Legislature, it must, under the repeated decisions of this Court, be declared unconstitutional and void.
The Constitution, Art. V., §3, authorizes the Legislature to tax “trades, professions, franchises,” etc., and, although it is not expressly provided that such taxes shall be uniform, “Yet,” says RodMAN, J., speaking for the Court in Gatlin v. Tarboro, 78 N. C., 119, “ a tax not uniform, as properly understood, would be so inconsistent with natural justice and with the intent which is apparent in the section of the Constitution above cited, that it would be restricted as unconstitutional.”
The act under consideration, if intended to impose a tax in the legal significance of the term, very plainly falls within the inhibition of the organic law as interpreted so often by this Court, for it cannot, with the least show of reason, be contended that the principle of uniformity is not violated when the same occupation is heavily taxed in one count}', while
It is not very unusual in this country for the State, either directly or through its various municipal corporations, to require the payment of a certain amount for the privilege of prosecuting one’s profession or calling, and this is required indiscriminately of all kinds of occupations, whavever be their character, whether harmful or innocent, whether the license is necessary to the protection of the public or not. “While the Courts are not uniform in the presentation of the grounds upon which the general requirement of a license for all kinds of employments may be justified, on one ground or another, the right to impose the license has been very generally recognized. Whatever refinements of reasoning may be indulged in, there are but two substantial phases to the imposition of a license tax on professions and occupations. It is either a license, strictly so called, imposed in the exercise of the ordinary police power of the State, or it is a tax laid in the exercise of the power of taxation.” Tiedman Lim. of Po., p. 101; Cooley Taxation, 403. We have seen that under the latter view the law under consideration cannot be sustained for the want of the uniformity required by the Constitution, and this brings us to the other branch of the inquiry, whether it can be upheld as a regulation under the police power of the State.
2. “The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offences against the State, but also to establish for the
This principle has been fully recognized in this State, and is illustrated by many decisions. In Int. &c. v. Sorrel, 1 Jones, 49, an ordinance of the- city of Raleigh requiring, under penalty; oats to be weighed by the public weigh-master,
In Butcher’s Union Co. v. Crescent City Co., 111 U. S., 746, Mr. Justice Field said : “That among the inalienable rights, as proclaimed in the Declaration of Independence, is the right of men to pursue any lawful business or vocation in any manner not inconsistent -with the equal rights of others. * * * The right to pursue them without let or hindrance, except that.which is applied to all persons of the same age, sex and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.” In the same case Mr. Justice Bradley said: “I hold that the liberty of pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a citizen of which he cannot be deprived, without invading his right to liberty within the meaning of the Constitution.” In Berthief v. O’Riley, 74 N. Y., 509, Andrew, J., remarked, that a man’s right to liberty includes “ the right to exercise his faculties and to follow a lawful vocation for the support of life.” Judge Cooley says, “The general rule undoubtedly is, that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching on the rights of others. It is not competent, therefore, to forbid any person, or class of persons, whether citizens or resident aliens, offering their services in lawful business, or to subject others to penalties for employing them.”
These authorities are referred to for the purpose of showing that under the mere guise of a police regulation a person cannot be unduly restricted or substantially prohibited from pursuing a lawful occupation. In order to justify such legislation, the business must itself be of such a nature that its prosecution will do damage to the public, whatever may be
It must be apparent, from' an examination of the statute in question, that the occupation of an “emigrant agent,” as defined therein, does not belong to that class which is so inherently harmful or dangerous to the public that it may, either directly or indirectly, be restricted or prohibited. The statute defines the said occupation “to mean any person engaged in hiring laborers in this State to be employed beyond the limits of the same.” It cannot be seriously contended that a laborer, under our system of government, as indicated by the unquestionable authorities to which we have referred, does not possess the right of hiring his services to anyone, either within or without the State. And if he may do this, we are unable to see, as we have just remarked, how an agent or other person engaged in hiring him to be employed
While the probable harm and inconvenience of immigration to the public may not be averted by such legislation, it is of the greatest importance to all of the citizens of the State that the inexperienced and artless laborer may not be imposed upon by the false representations and other fraudulent practices of an emigrant agent, and it is one of the highest duties imposed upon the lawmakers to prevent such abuses by prescribing rigid and appropriate regulations under w’hich the said occupation can alone be followed. Regulations of this nature may be made in a variety of ways, but that which is most commonly adopted is the requirement of a license fee which is exacted for the purpose of defraying the probable expenses of ascerlaining the moral and other qualifications of the proposed licensee, and the proper inspection or other necessary police supervision under which the particular business is to be conducted. While the means adopted must have a relation to the accomplishment of these ends, it is not absolutely necessary in all cases that the law or ordinance imposing the license should prescribe any specific regulation, and it is sufficient if the Court can see that the fee exacted is a reasonable proportion of the necessary expenses incident to the general police supervision. The entire absence, however, of any regulation, or of any police supervision whatever, is a powerful aid (and expecially where the amount exacted is very large) in determining whether the license is not really a disguised species of taxation or an indirect method of unduly restricting or prohibiting the business altogether. In this case, however, we have no hesitation in reaching the conclusion that the act in question is not and was not intended
In Tiedman (supra, 274) it is said that, “In the regulation of occupations it is constitutional to require those who apply for a license to pay a reasonable sum to defray the expenses of issuing the license and maintaining the police supervision.” The principle has been emphatically recognized by this Court in State v. Bean, 91 N. C., 554. In that case it appeared that the town of Salisbury had, under its charter, the authority to regulate the manner in which provisions might be sold in its “streets and markets,” and to enforce such regulations by appropriate penalties, etc. The ordinance provided that “ No butcher or other person shall cut up and expose to sale any fresh meats within the limits of Salisbury without first obtaining a licehse from the Commissioners of the town, which license shall authorize the person or persons to sell meat at a certain stand, sh<?p or stall specified in said license, to be used as a market, and for which license said person shall pay the sum of $3 per month, payable in advance.” The Court held that, as the subjects of taxation were enumerated in the charter, and as the occupation of selling meat by butchers was not included therein, the town had no right to impose a tax upon that particular occupation; and when it was urged that the license fee could be sustained as a regulation under the police power, it was held that it was not a police regulation, but a tax. The opinion was based upon the unreasonableness of the amount required for the license. The Court (Ashe, J.) said: “There are authorities to be found to the effect that, under the police power, license may be granted for the exercise of particular avocations and employments, but in all such cases it is held that the fee or price exacted for the privilege must not be with a view to revenue; and in such cases it is competent and proper for the Courts, where the effect and purpose of an ordinance are brought to be reviewed by them, to see that the fee or price paid for the
As the questions discussed are of much importance, and especially, because they involve the constitutionality of an act of the Legislature, we have been somewhate labórate in the expression of our views. Entirely mindful of that most salutary principle, that no Court should declare an act of the Legislature unconstitutional, unless it is plainly so, and deeply conscious as we are of the profound responsibility imposed upon those whose province it is to exercise so delicate a duty, we cannot hesitate in deciding that the act under examination is incapable of being sustained in any point of view.
Considered as a tax (and this we think is its true character), it is void for want of uniformity; and considered as an exercise of the police power, it is likewise void, because of its restrictive or prohibitory character, as well as the unreasonable amount exacted as a license fee.
Affirmed.