Pleuler v. State

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

10 N.W. 481

11 Neb. 547

ANDREW PLEULER, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 12, 1881

ERROR to the district court for Douglas county, where plaintiff in error had been indicted for selling spirituous liquors without having a license therefor, under and pursuant to the act of February 28th, 1881, "to regulate and license the sale of malt, spirituous, and vinous liquors," etc., and without having complied with the provisions of that act. Upon a plea of not guilty there was a trial before SAVAGE, J., and a jury. The state gave evidence tending to show that spirituous and malt liquors were sold by the plaintiff in error, in the city of Omaha, on the twenty-second day of June 1881; and that he had not procured a license therefor from the city, pursuant to said act. Thereupon, the plaintiff in error moved that the jury be directed to return a verdict of not guilty, and that the plaintiff in error be discharged grounding the motion upon the alleged unconstitutionality of the act. This motion was overruled, to which exceptions were taken. The plaintiff in error then testified that on the day and at the place where the liquor and beer were sold according to the witnesses of the state, he was carrying on business under a license for selling spirituous liquors (which was afterwards offered in evidence), dated January 1st, 1881, for which license he had paid $ 100; and that he had complied with all the provisions of the law then in force regulating the sale and dealing in liquors. The license was then offered in evidence, and was, upon objection, excluded. The court instructed the jury to the effect that if the plaintiff in error sold liquors as charged, and had not a license therefor under the act in question, the verdict must be guilty. To this exceptions were duly taken. A verdict of guilty was rendered. Motion for a new trial was made and overruled. Judgment was pronounced, and its execution suspended, on application of the plaintiff in error, to enable him to apply for the writ of error which brought the case here.

AFFIRMED.

E Wakeley and J. C. Cowin, for plaintiff in error.

The act is unconstitutional. 1. The exaction is a tax on the business of selling liquors. Cooley on Taxation, 1, 3, 5, 10, 403 408. Burroughs on Taxation, 69. It is none the less a tax because the object may be wholly or in great part to prevent and discourage the business. The manner in which the sum is levied, whether as a tax in name, to be collected like other taxes, or as payment for a license to carry on the business, is not material. The last may be a tax as well as the first. The exacting of any greater sum than could be properly demanded as a mere incident to the power to license and regulate the business is taxation. Ward v. Maryland, 12 Wall. 418. Lucas v. The Lottery, 11 Gill & Johns. 506. Kitson v. The Mayor, 26 Mich. 325. Essex Co. v. Barber, 7 N.J.L. 64. Kip v. City of Patterson, 26 Id., 298. Mayor v. Second Av. Ry. Co., 32 N.Y. 26. Com. v. Stadder, 2 Cush., 562. Mays v. Cincinnati, 1 O. St., 268. St. Louis v. Boatmans' Ins. Co., 47 Mo. 150. Collins v. Louisville, 2 B. Mon., 134. Wendover v. Lexington, 15 Id., 258. Mason v. Lancaster, 4 Bush., 406. Kniper v. Louisville, 7 Id., 599. Youngloyes v. Sexton, 32 Mich. 406. Chilvers v. People, 11 Mich. 43. State v. Hoboken, 33 N.J.L. 280. These authorities indicate the distinction between licensing the traffic in liquors and taxing it. A license fee may be exacted, provided it does not transcend the just limits of such a fee and encroach on the domain of taxation. The amount must be limited to covering expenses caused by the business. But this law empowers a municipality to demand any sum, for any purpose, as a condition of pursuing the business. It therefore permits taxation--a tax upon the business of liquor sellers--a tax upon the privilege of carrying it on. By the constitution, sec. 6, art. V, the support of the common schools--the free education of the children--are made state objects and state duties. By the constitution, sec. 5, Id., and by this law, every dollar paid for license money is devoted exclusively to this state object. Not one cent goes to defray the expenses which the liquor traffic may cause. It goes to the same fund and to the same purpose as money raised by a school tax. It has every element of a tax for revenue. Greencastle v. The State, 5 Ind, 557. The constitution, sec. 1, art. IX, requires this taxation to be uniform as to the class which is taxed. But the tax imposed by this provision is wanting in every element of uniformity. Nor is it a good answer to say the constitution is satisfied if the tax or license fee is the same throughout the municipality imposing it. It must be imposed by or under a "general law, uniform," etc. The obvious and unquestionable purpose was that the uniformity should be co-extensive with the jurisdiction embraced in the operation of this general law. The object of the provision would be wholly frustrated if the taxing power could by general law be parcelled out to small subdivisions of the state on condition that it should be experienced with uniformity therein. That the legislature cannot delegate to a municipality a power to reject the rule of uniformity which is binding upon itself will doubtless be conceded. Knowlton v. Supervisors, 9 Wis. 410. Gilman v. City of Sheboygan, 2 Black, 510. The act, secs. 4, 18, and 28, confers legislative power on the judiciary. This violates the constitution. The constitution is also violated by arbitrarily prohibiting the sale of liquors within a strip of two miles around an incorporated city or village, while it is permitted both without and within that limit.

2. The privilege of selling liquors, given to the accused by his license, was not taken away by the repeal of the law under which it was given, or by the enactment of that which took its place. The unquestioned rule is that the repeal of a statute takes away only such rights and remedies as did not exist independently of it; in other words, such only as owed their existence solely to it. The license was an affirmative grant of a privilege, for a valuable consideration, and on other onerous conditions, to carry on a traffic in liquors for a specified time. It is very clear that a new statute, enacted before this privilege had expired, could not take it away without a retrospective operation. Statutes will not be construed as intended to act retrospectively unless this intention clearly appears. Dwarris on Statutes, p. 162. And the intent to take away privileges already granted does not appear in this act. The conditions upon which it shall be carried on are changed. This is all. No intent can therefor be presumed to take away rights already granted. The argument on this basis would prove too much, as it would follow that a new law making the conditions less onerous, the sum to be paid for licenses smaller, and the bond to be given less stringent, would require those who had complied with the old law to forego all benefit therefrom, and pay, in addition, the smaller sum, and give, in addition, the less stringent bond. It would follow, further, that the repeal of the old law and the enactment of a new one, making even the slightest change, would blot out all rights conferred by the old. To take away a privilege granted by the state, for a valuable consideration, to carry on a lawful business, without providing for a restoring of the money, or a just proportion of it, would be an act of bad faith on the part of the legislature, which should not be imputed to it. Torrey v. Corlis, 33 Me. 333. Ganett v. Higgins, 1 Scam., 335. Robinson v. Bowen, 2 Id., 499. White v. Blum, 4 Neb. 555. Belvidere v. Warren Co., 34 N.J.L. 193. Baldwin v. Newark, 38 Id., 158. Vreeland v. Bramhall, 39 Id., 1. City of Elizabeth v. Hill, Id., 555. State v. Ferguson, 62 Mo. 77. Wood v. Oakly, 11 Paige, 400. Butler v. Palmer, 1 Hill, 335. Sackett v. Andros, 5 Id., 227. Plumb v. Sawyer, 21 Conn. 351. Murray v. Gibson, 15 HOW U.S. 421. Chilvers v. The People, 11 Mich. 43. State v. Hoboken, 33 N.J.L. 280. The same rule of construction which would take away this privilege would take away from every lawyer in Nebraska his license to pursue his profession under the existing law, if this should be repealed and a new one enacted imposing different conditions. Grant that this might be done. Would it be presumed that there was an intention to do this unless language should be employed clearly indicating it? The authorities say no, and the common understanding of reasonable men would be to the contrary. It will be found that most of the decisions, if not all, holding that the right is taken away by subsequent legislation, are grounded on an expressed intent.

3. One other question remains--whether, on account of these unconstitutional provisions, the law must be wholly set aside; or whether, notwithstanding them, the penalties can be enforced. The rule on this subject has become established and the question is whether this case falls within it. If the unconstitutional provisions so enter into the frame-work, texture, and objects of the law that they must be held to have been inducements to its passage, or to be essential to its operation, or indispensable parts of it, or if it is therefrom presumable that without them the law would not have been enacted, then the whole law must go. Tested by any of these criteria, this law can not stand. The matters complained of are important and fundamental. It is beyond all question that the raising of the license fee, and the demand of a large sum which gives to this law its distinctive appellation of "high license," in the popular phrase, was of the very essence of it in the estimation of its framers and...