Territory of Arizona ex rel. Livestock Sanitary Board v. Kenney

NAVE, J. — The territory of Arizona, at the relation of the livestock sanitary board, brought suit against James and Fred Kenney, copartners doing business under the name of Kenney Bros., to recover $150 alleged to be due. from Kenney Bros, by reason of the fact that during the year 1905 they were engaged in the slaughtering business, but did not apply for or procure a license for that business, or pay to that board by way of a license the amount of the license fee, though payment thereof was demanded of them. Kenney Bros, demurred to the complaint on the ground that it does not state a cause of action. The demurrer was sustained, and judgment rendered against the plaintiff. From this judgment the plaintiff has sued out a writ of error. The livestock laws as contained in title 42 of the Revised Statutes of 1901, Act No. 26, page 40, Laws of 1903, and Act No. 51, page 65, Laws of 1905, are involved in the consideration of this case. These laws provide for the establishment of the livestock sanitary board, a salaried body, for a salaried secretary of that body, for a salaried veterinary surgeon, and for stock inspectors, slaughter-house inspectors, and detec [357] tives. These officials are charged with the duty of protecting livestock in the territory from contagious and infectious diseases, discovering and destroying diseased stock, protecting the public from diseased and unwholesome meat products, and protecting stock owners from the theft of their stock. Among other details of the system there is a provision under which the board shall grant licenses to persons engaged in the slaughtering business upon the payment of varying fees. The fee applicable to the defendants in error is $150. It is made a misdemeanor for any person to engage in slaughtering until and unless he shall have obtained such license. Furthermore, all such persons are required to give bond to the territory of Arizona conditioned that they shall not slaughter or expose for sale any animal or meat thereof, which they do not own, with a penalty for violation of the condition, accruing in shares to the true owner, the informer, and the license and inspection fund. All license fees are placed in the license and inspection fund, which fund is used upon the order of the board for the payment of inspectors, of attorneys’ fees, and of such other expenses as may be incurred in enforcing the stock laws. All fees for inspection, and all. other sums of money accruing by reason of any provisions of these laws, are placed in that fund for that purpose, excepting those which go directly to inspectors as their compensation. A system of stock inspection and carcass inspection is provided, involving the supervision not only of slaughtering, but also of animals upon the range, of their removal from one range to another, and of their transportation into, through, or out of the territory. There is no provision authorizing action to collect the license fees, nor method pointed out to enforce such collection, except by the indirect means of criminal prosecution. The demurrer was sustained upon the theory that an action to collect such fees is not maintainable. The territory makes two contentions: First, that the fee for which it sues is imposed as a tax for revenue purposes; and second, that, there being no specific provision by law for the collection of that tax, the territory may avail itself of the general laws, and bring this action as for a debt; citing Lexington v. Wilson, 118 Ky. 221, 80 S. W. 811; Dollar Savings Bank v. United States, 19 Wall. (U. S.) 227, 22 L. Ed. 80, and other decisions of which these are typical. The statutes which we have summarized patently are intended solely for the regulation of the livestock and butchering businesses, with [358] a view to protecting owners of livestock and purchasers of meats. They contemplate the obtaining by their various fee provisions of only sufficient funds for the maintenance of the system. The license provisions are therefore not exercises of the taxing power, but exercises of the police power. Cooley on Taxation, o. 19; Gray on Limitations of Taxing Power and Public Indebtedness, c. 20; Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370, 19 S. W. 1053; Ellis v. Frazier, 38 Or. 462, 63 Pac. 642, 53 L. R. A. 454; State v. Ashbrook, 154 Mo. 375, 77 Am. St. Rep. 765, 55 S. W. 627, 48 L. R. A. 265; City of Terre Haute v. Kersey, 159 Ind. 300, 95 Am. St. Rep. 298, 64 N. E. 469. We are not cited to any authority suggesting that, in advance of the issuance of the licenses, such license fees can be collected by suit, except by virtue of specific statutory authority. The law before us does not give rise to an obligation, but offers an opportunity of which one desirous of engaging in the licensed business may avail himself. Of it, however, he cannot be compelled to avail himself, except in so far as such compulsion may be effected by criminal prosecution. The fee is to be paid for the license. When a license is not obtained, there cannot be implied an obligation to pay for a license, merely by reason of the unlawful engaging in the business. Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143; Monterey Co. v. Abbott, 77 Cal. 541, 18 Pac. 113, 20 Pac. 73; Merced Co. v. Helm, 102 Cal. 166, 36 Pac. 399. The complaint does not state a cause of action. Wherefore the judgment must be affirmed. KENT, C. J., and SLOAN and CAMPBELL, JJ., concur.