State ex rel. Troll v. Hudson

• Decision Date: 30 April 1883
• Citation: 78 Mo. 302
• Parties: THE STATE ex rel. TROLL v. HUDSON.
• Court: Missouri Supreme Court

78 Mo. 302

THE STATE ex rel. TROLL

v.HUDSON.

Supreme Court of Missouri.

April Term, 1883.

Mandamus.

PEREMTTORY WRIT REFUSED.

This was an original proceeding in this court to compel the respondent, who was collector of the revenue in the city of St. Louis, to issue to the relator a license to keep a dramshop in said city.

An ordinance of the city enacted in 1881, had imposed a license fee of $60. On the 2nd day of July, 1883, the relator tendered this amount and demanded a license, but respondent refused to issue it on the ground that the act of the general assembly of March 24th, 1883, was in force in said city, and that under that act he could not accept a less fee than $250. Section 3 of the act is as follows:

“Upon every such license there shall be levied a tax not less than $25 nor more than $200 for State purposes, and not less than $250 nor more than $400 for county purposes, for every period of six months; the amount of tax in every instance to be determined by the court granting the license.”

Relator denied the validity of this act on the ground that it conflicted with the following sections of article 10 of the State constitution of 1875:

Section 1. “The taxing power may be exercised by the general assembly for State purposes, and by counties and other municipal corporations, under authority granted to them by the general assembly for county and other corporate purposes.”

Section 3. “Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws.”

Section 10. “The general assembly shall not impose taxes upon counties, cities, towns or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town or other municipal purposes; but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.”

Relator insisted that the act violated sections 1 and 3, because the general assembly did not fix the tax for State purposes and make it uniform throughout the State, but only provided that it should be “not less than $25 nor more than $200,” and left it to the local authorities in the several counties to fix it at any sum within those limits; also, that it violated sections 1 and 10, because instead of leaving it to the local authorities to fix the tax for county purposes the act fixed it between certain limits: “not less than $250 nor more than $400,” and made it obligatory on the local authorities to levy and collect not less than $250 for county purposes on every license; also, that the act had no application to the city of St. Louis.

This proceeding was brought to test the questions thus raised.

Louis Gottschalk and Smith & Krauthoff for relator.

Leverett Bell for respondent.

PER CURIAM.

1. DRAMSHOP LICENSES: police power: taxing power.

The State has the right, in the exercise of its police power, to prohibit the sale of intoxicating liquors without a license. Austin v. State, 10 Mo. 591; State v. Lemp, 16 Mo. 389; State v. Searcy, 20 Mo. 489. The license fee exacted by the general law regulating dramshops and the act amendatory thereof, approved March 24th, 1883, is not a tax within the meaning of sections 1, 3 and 10 of article 10 of the constitution, but is a price paid for the privilege of doing a thing, the doing of which the legislature has a right to prohibit altogether. Such laws are regarded “as police regulations, established by the legislature for the prevention of intemperance, pauperism and crime, and for the abatement of nuisances,” and are not regarded as an exercise of the taxing power. “Pursuits that are pernicious or detrimental to public morals may be prohibited altogether, or licensed for a compensation to the public.” Cooley on Const. Lim., (4 Ed.) p. 727; Burch v. Mayor, etc., 42 Ga. 598; Bohler v. Schneider, 49 Ga. 195; Chilvers v. People, 11 Mich. 43; People v. Thurber, 13 Ill. 554; East St. Louis v. Trustees of Schools, 102 Ill. 489; s. c., 40 Am. Rep. 606; and cases cited; Henry v. State, 26 Ark. 523; loc. cit. 525. It does not follow because the license fee is large, or because it may become a part of the public revenue that it is, therefore, a tax. State v. Hipp, 38 Ohio St. 225. Many fines, penalties and forfeitures become a part of the public revenue of the State that are not derived from taxation. The disposition made of the fund derived from the license fees does not necessarily determine the character of such fees. The legislature were evidently of opinion that the taxation of a large license fee would tend to diminish the number of saloons and improve the character of those licensed, and thereby secure to a greater degree compliance with all the regulations and...