State v. Schofield
Decision Date | 11 January 1915 |
Docket Number | 20709 |
Court | Louisiana Supreme Court |
Parties | STATE v. SCHOFIELD et al In re SCHOFIELD |
J. S Atkinson, of Shreveport, Price & Price, of Ruston, and G. W Hardy and Albert Benoit, both of Shreveport, for applicants.
R. G Pleasant, Atty. Gen., and Howard B. Warren, Dist. Atty., of Ruston (G. A. Gondran, of New Orleans, of counsel), for the State.
O'NIELL, J., concurs in the decree.
The indictment against the accused contains two counts -- one, under section 1 of Act No. 40, p. 47, of 1912, charging that:
'They being itinerant and traveling agents engaged in the sale of stock of the North Louisiana Electric Railway Company, a corporation organized under the laws of the state of Louisiana, did sell five shares of stock' of said corporation.
The other count is under section 4 of said statute, and charges that, in order to induce the purchase of said stock, they made false representations. They were tried without a jury, and were convicted and sentenced each to a fine of $ 50, and their case is before this court on writs of certiorari and prohibition to the trial judge.
By motion to quash, they assailed the validity of said statute on a number of grounds. The said act reads as follows:
'An act levying a license tax on itinerant or traveling agents selling stock and bonds; regulating the sale of such stock and bonds by itinerant or traveling agents or vendors and requiring them to secure a certificate of permission before receiving a license; providing the cost and manner of securing such certificate of permission and license; and providing that bonds and security be given that such stock or bonds are as represented; and providing a penalty for the violation of this act.
A question which is more or less involved in several of the grounds of nullity urged against this statute, and which might as well be disposed of now and for all, is whether the license imposed by this statute is levied by an exercise of the taxation power or of the police power.
When a license is required to be obtained for the privilege of carrying on some particular business without any payment being required for obtaining it, the governmental power that is being exercised in the premises cannot possibly be that of taxation, but is necessarily that of police, for the necessary function of the taxation power is to procure revenue. When a payment is required for obtaining the license, the power that is being exercised may be either that of taxation or that of police. If only an amount sufficient to cover the cost of issuing the license is demanded, the power that is being exercised is still plainly that of police. But, if the amount demanded exceeds the cost of issuing the license, the problem becomes more complicated; especially if, as in the present case, this excess is very large, and the cost of obtaining the license is otherwise provided for.
In nearly all of the very numerous cases where the courts have had to consider this distinction between a license levied under taxation power and one levied under the police power, the question has come up in connection with the ordinance of some municipality that possessed the power to regulate, but not that to tax, the particular business upon which the license was imposed. Hence we generally find the law in that regard stated in the text-books from the standpoint of a municipality, not from that of the Legislature. The question cannot possibly arise in an instance where the acting governmental authority possesses both the power of taxation and that of police, for the license is then valid, even if its purpose be to procure revenue to defray the general expenses of the government. This accounts for its having so seldom arisen in connection with a license imposed by a Legislature; for Legislatures, as a rule, possess both of the said powers in plenitude.
That law on this point is nowhere more fully and lucidly stated than by Judge Cooley in his work on Taxation (page 589), where he says:
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