Rosenbloom v. State
| Citation | 89 N.W. 1053,64 Neb. 342 |
| Decision Date | 02 April 1902 |
| Docket Number | 12,451 |
| Parties | MAX ROSENBLOOM v. STATE OF NEBRASKA |
| Court | Supreme Court of Nebraska |
ERROR from the district court for Platte county. Tried below before GRIMISON, J. Affirmed. HOLCOMB, J. dissenting.
McAllister & Cornelius, for plaintiff in error.
Frank N. Prout, Attorney General, Norris Brown, Deputy, and William O'Brien, for the state.
Max Rosenbloom, defendant below, having been convicted of peddling in Platte county without a license, seeks by this proceeding to obtain a reversal of the sentence. The statutory provisions which we have occasion to consider in disposing of the questions presented for decision are found in the general revenue law (Compiled Statutes, 1901, art. 1 ch. 77), and are here set out:
It is conceded that the facts alleged in the information exist, but it is insisted that they do not constitute a crime. The argument is that the law taxing peddlers trenches in various ways upon the constitution, and is therefore void. It is said in the first place that the object of the legislation is to raise county revenue, and that revenue measures can not, in this state, be enforced by the infliction of fines or penalties. We agree with counsel in the view that the primary and paramount, if not the only, object of the law, is to obtain revenue, by imposing a tax upon the business of peddling. The only thing the peddler is required to do is to pay his tax, and exhibit the appropriate evidence of payment to any person who may wish to see it. The only thing he is forbidden to do is to pursue his calling without having first paid the tax. No police inspection or supervision is provided for. If the things commanded and forbidden are to be regarded as features of regulation or repression, they are not, to say the least, so pronounced or conspicuous as to suggest the idea that the law is referable to the police power, rather than to the power of taxation. But granting the contention of counsel for defendant that the statute is a revenue measure, pure and simple, we are not able to discover any valid objection to the enforcement of it in the manner provided by the legislature. It is settled doctrine in this and in every other jurisdiction that courts will not adjudge statutes unconstitutional unless they are plainly so. Now with what express provision of the higher law does the statute in question clash? We know of none. It may, perhaps, be said that imprisonment for debt has been abolished; but taxes are not debts, within the meaning of the constitution, and if they were, the provision with respect to a fine and that with respect to imprisonment are not so inseparably connected that they must stand or fall together. "The law abolishing imprisonment for debt," says Judge Cooley, "has no application to taxes; and the remedies for their collection may include an arrest if the legislature shall so provide." Cooley, Taxation [2d ed.], 17. In speaking of license taxes the learned author further remarks that it is still customary to enforce payment of them by arrest and imprisonment, adding that "a constitutional provision inhibiting imprisonment for debt has no application to the case of a license tax." Cooley, Taxation, 438. Among the many cases sustaining this view, we cite the following: Appleton v. Hopkins, 5 Gray [Mass.] 530; Daggett v. Everett, 19 Me. 373; McCaskell v. State, 53 Ala. 510; Commonwealth v. Byrne, 61 Va. 165, 20 Gratt. 165; Denver City R. Co. v. City of Denver, 21 Colo. 350, 41 P. 826; City of St. Louis v. Sternberg, 69 Mo. 289; Campbell v. City of Anthony, 40 Kan. 652, 20 P. 492; City of Bozeman v. Cadwell, 14 Mont. 480, 36 P. 1042; City of Cincinnati v. Buckingham, 10 Ohio 257; In re Dassler, 35 Kan. 678, 12 P. 130. Limitations upon legislative power are to be found in written constitutions; it has not been customary to look for them in the opinions of the courts. When it pleased the people of this state to put an end to the ancient practice of seizing the person of a debtor as a means of coercing payment of a debt, they put into the bill of rights this expression of their sovereign will: "No person shall be imprisoned for debt in any civil action on mesne or final process unless in cases of fraud." Bill of Rights, sec. 20. This language is terse and lucid; it means just what it says, and, when considered in the light of familiar history, it seems hardly possible to misunderstand it. It deals only with procedure in civil actions,--actions having for their object the collection of debts; it has no application to the civil liability created by the bastardy act (Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174; Ex parte Donahoe, 24 Neb. 66, 38 N.W. 28), and it has certainly no relation whatever to criminal actions brought by the state to punish the violation of a public law. The just and humane policy of abolishing imprisonment for debt can not be too highly commended, but an extension of that policy by judicial decision can be defended only on the theory that beneficent usurpation is justifiable. Three cases decided by this court (State v. Green, 27 Neb. 64, 42 N.W. 913; Magneau v. City of Fremont, 30 Neb. 843, 47 N.W. 280, and Templeton v. City of Tekamah, 32 Neb. 542, 49 N.W. 373) declare that penal provisions of an occupation tax ordinance are unenforceable; but these decisions do not profess to rest in either reason or authority, and are, in our judgment, contrary to both. If they had become a rule of property, we should certainly adhere to them, but since they have not, we think they should not be regarded as binding precedents; and they are accordingly overruled.
Another ground upon which the law is assailed is that section 154, which prescribes penalties for peddling without a license, is not embraced within the title of the act. The title is a very comprehensive one; it is "An act to provide a system of revenue," and, ex vi termini, covers the entire subject of taxation; it comprehends the selection of the persons, property and franchises to be taxed, the manner and method of making the assessment, equalization and levy, the amount of revenue to be raised, the means or machinery by which the taxes are to be collected, and many other matters obviously germane to a general scheme or plan for providing funds with which to defray the necessary expense of maintaining a state and local government. A law to provide a system of revenue would be singularly weak and inefficient if it did not make adequate provision for the collection of taxes. In fact, every revenue law does contain such provisions. The usual and appropriate method of enforcing payment of a property tax is by the addition of an increased rate of interest, which is in truth a penalty, and by the sale of the taxed property. But payment of taxes on occupations can not be enforced in this way and hence the ordinary, and often the only effective, method of compelling payment, is by fine and imprisonment of the person upon whom the tax is imposed. In the recent case of Nebraska Loan & Building Ass'n v. Perkins, 61 Neb. 254, 85 N.W. 67, it is said: "If no portion of the bill is foreign to the subject of legislation, as indicated by the title, however general the latter may be, it is in harmony with the constitutional mandate." Tested by this rule it is, we think, entirely manifest that the penal provision of section 154 is covered by the title of the act.
A further contention of counsel for defendant is that, by reason of the exceptions contained in section 152 the law lacks the essential requirement of uniformity. The constitution (art. 9, sec. 1) declares that the legislature may impose a tax upon persons engaged in certain occupations "in such manner as it shall direct by general law uniform as to the class upon which it operates." This provision undoubtedly contemplates that all persons pursuing the same business or calling under the same...
To continue reading
Request your trial