Pleuler v. State

• Decision Date: 12 November 1881
• Citation: 10 N.W. 481,11 Neb. 547
• Parties: PLEULER v. STATE OF NEBRASKA.
• Court: Nebraska Supreme Court

11 Neb. 547

10 N.W. 481

PLEULER

v.STATE OF NEBRASKA.

Supreme Court of Nebraska.

Filed November 12, 1881.

Error from Douglas county.

E. Wakely and J. C. Cowin, for plaintiff.

G. W. Ambrose and E. Estabrook, for defendant.

LAKE, J.

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 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 Iowa, 165;The State ex rel. v. County Judge, 2 Iowa, 280;Telfair v. McGin, 1 Gray, 1;Sears v. Cottrell, 5 Mich. 251;Tyler v. The People, 8 Mich. 333;Hill v. Highdan, 5 Ohio St. 243.

The primary and chief reason urged for the reversal of this judgment is that the act under which the conviction was had is in conflict with section 1, art. 9, 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, innkeepers, liquor dealers, toll-bridges, ferries, insurance, telegraph, and express business, vendors of patents, in such manner as it shall direct by general law, uniform 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 under 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 he 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 section 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 offence be deemed guilty of a misdemeanor,”etc. 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 section 5, art. 8, 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.

In Youngblood v. Sexton, 32 Mich. 406, the principal question was as to the validity of an act for the taxation of liquor traffic. It was objected that it violated a provision of the constitution of that state which required all specific state taxes, except those received from certain mining companies, to be applied “in paying the interest on the primary school, university, and other educational funds, and the interest and principal of the state debt,” etc. But by the act in question the taxes were appropriated “to the use of the towns, villages, and cities in which the business taxed was carried on.” The court held that, although levied in pursuance of a general law of the state, it was not a state tax within the meaning of the constitution. Being put to the use of the community which paid it, it was in no proper sense anything more than a local tax; and that the constitutional requirement of uniformity was satisfied by the tax being levied upon all dealers alike, without discrimination on account of the amount of business done. See, also, upon this point, Com'rs of Ottawa Co. v. Nelson, 19 Kans. 233, (reported in 27 Am. Rep. 101;)City of New Orleans v. Kaufman, 29 Am. Rep. 328, and 29 La. Ann. 283;State v. Rolle, 31 Am. Rep. 234, and 30 La. Ann. 991. From these authorities it would seem that, even if the exaction of this money were to be regarded as a species of taxation simply, the constitutional rule of uniformity would not be broken so long as, within the particular district, no discrimination is made in the amounts required from persons applying for licenses.

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 will now notice very briefly: The first case in the order of citation is that of Ward v. Maryland, 12 Wall. 418, wherein it appears that, by a state statute, resident traders were required to take licenses and pay therefor from $12 to $150, according to a sliding scale, with reference to stock in trade. Non-resident traders were required to pay $300 annually for the same privilege. It was held that the exaction was a tax, and that the distinction made between resident and non-resident traders rendered the law repugnant to section 2, art 4, of the constitution of the United States. In this case the exaction was clearly a tax, and nothing else, as the purpose of the law was not regulation, but the raising of revenue alone.

The next case, that of Essex v. Barber, 7 N. J. L. --, is one in which it appears that, in the incorporation of certain towns, power was given them to license inn-keepers under certain restrictions. Afterwards a general act was passed giving power to the several county authorities to license inn-keepers, and also to tax them from $10 to $70, according to certain regulations. The regulations about the power to license were, that inn-keepers 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 directions, and being subject to the limitations, restrictions, and provisions herein contained, and given to the courts of general quarter sessions of the peace in the several counties of the state.” Under these provisions it was held that there was a radical difference between the power given to cities and that given to counties, and that the former had no power to tax.

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. 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 $50 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...