Straub & Lohman v. Gordon

English, Special J. The bill alleged, in substance, that Straub & Lohman, the appellants, were merchants of Helena, doing- a general grocery and produce business, and as part of their merchandise, they kept and sold spirituous liquors, but in quantities not less than one quart. That they were what were known as wholesale liquor merchants, licensed, as such, under the laws of the United States, and kept ardent spirits for sale generally to their customers ; that by section 154 oan Act of the General Assembly, regulating the assessment and collection of revenue of the State, approved March 25, 1871, it was provided that, “there shall be levied and collected, as a county tax, the sum of one hundred dollars, for each and every person soiling, either at wholesale or retail, any ardent or vinous liquors (except the same is sold exclusively for medicinal purposes) in any county for the term of ope year or loss;” that under said Act the County Court of Phillipfe county, at the July term 1871, assessed a tax of one hundred dollars upon all liquor dealers within said county, and the county clerk had issued licenses and placed them in the hands of I). C. Gordon, (the appellee) as sheriff of said county, to be collected from all persons selling liquor within said county; that among those thus assessed, and to -whom license had been issued, were the appellants, and that the sheriff’had a license for them, and was proceeding to collect the same by making a-levy on their property; that said Act is unconstitutional, because Article X, Section 2, of the Constitution of the State, provides that, “laws shall he passed, taxing by a uniform rule, all money, credit, investments in bonds, joint stock companies or otherwise; and also, all real and personal property according to its true value in money,” etc., etc. That under said clause of the Constitution, and Acts of the General Assembly, all the merchandise held and sold by them, including liquors kept by them for sale, was assessed and taxed as personal property; that by said section 154, of the Act of March 25, 1871, it was attempted to impose upon them an additional tax of one hundred'dollars, without regard to the value of the property; that by Article X, Section 17, of the Constitution, it is provided that -. “The General Assembly shall tax all privileges, pursuits, and occupations that are of no real use to society; all others shall be exempt;” that the sale of liquor is like the sale of any other article of merchandise, and is a right common to every, citizen, and in no sense a privilege within the meaning of said section of the Constitution; that before any occupation can be taxed, it should be first declared of no usé to society, etc. That liquor is an article of merchandise in all States, and has been in all times; that the sale of liquor has not been declared a nuisance; but that the General Assembly, by an Act approved April 1869, entitled, “an Act regulating the incorporation and organization of municipal corporations,” has conferred the power upon municipal corporations “to regulate saloons, dram shops or drinking places, or suppress the same,”, and that the County Court possesses no power to license dram shops or tippling houses doing business within incorporated cities or towns, and that the city of Helena is incorporated within the purview and moaning of-said Act. That the tax of one hundred dollars so assessed by said county, is illegal and unjust; that unless the sheriff was restrained, by injunction, he would proceed to enforce the collection of said tax by a levy upon the property of the appellants, to the great and irreparable injury and damage of their business, etc. Prayer for injunction, etc. The cause was heard, in the Phillips Circuit Court, on the face of the bill, as if upon a demurrer; the injunction was refused, the bill dismissed for the want of equity, and the complainants appealed to this court. . The Constitution provides that, “laws shall be passed taxing, by a uniform rule, all money, credit, investments in bonds, joint stock companies or otherwise ; and also, all real and personal property, according to its value in money, etc.,” and provides for the appraisement of real and personal property, for the purposes of taxation, at its true value in money, etc. Art. X, Sections 2 and 3, etc. No doubt but that all taxes assessed upon property of any description, under these provisions of the Constitution, whether for State, county or municipal purpose, must be imposed according to the properly appraised money value of' the property. The tax complained of in the bill is not a tax upon property. Section seventeen of the same article (10) of the Constitution, provides: “ The General Assembly shall tax all privileges, pursuits and occupations that are of no real use to> society; all others shall be exempt; and the amount thus-raised shall be paid into the treasury.” , Money raised under this provision of the Constitution is to be paid into “ the treasury.” What- treasury, within the-meaning of the language here employed, is “ the treasury ? Surely the framers of the Constitution did not intend to embrace in the words “ the treasury ” the numerous county treasuries of the State. They manifestly meant the treasury of tíre State. Most of the. provisions of the 10th article relate to raising revenue to support the State and to maintain its credit. The words “ the treasury ” occur in two other sections.of this article. Thus, in section 8: “No money shall be paid out of the treasury until the same shall have been appropriated by law.” And in section 15 : “ The ,principal arising from the sale of all lands, donated to the State for school purposes, -shall be paid into the treasury, and the State shall pay interest thereon for the support of schools, at the rate of six per cent, per annum.” No one can fail to see that the treasury of the State is meant by the words “ the treasury,” as used in these sections, and it is equally clear that their meaning is the same as used in the seventeenth section. That the legislature has the power, under this section, to-impose a State tax upon such privileges, pursuits and occupations as are of no real use to society, we have no doubt. The usual mode of imposing such a tax (if it may be called a tax) is t-o require persons desiring to exercise such privileges, or to engage in such pursuits or occupations, to obtain a license, at some fixed price, and to subject them to penalties for exercising the privilege or engaging in the pursuit or 'occupation without obtaining the license. If the Legislature had thought proper to require wholesale dealers in spirituous liquors to pay into the treasury’of the State a compensation to the public for the privilege of engaging in such pursuit, we should be, slow to hpld that such an activas unconstitutional, on the ground that such pursuit is of real use to society. But the act complained of in the bill is not an attempt to raise a State revenue by a tax upon dealers in liquors. It provides that, “ There shall be levied and collected as a county taz, the sum of one hundred dollars from each and every pier-son selling, either at wholesale or retail, any ardent or vinous liquors (excepit tlie same is sold exclusively for medicinal purposes) in any county of this State, for the term of one year or less.” Act of 26th of March, 1871, sec. 154. If this act is in conflict with any clause of the Constitution, we have not been able to find it. The Constitution of the State is a restraining and not an enabling instrument, and it maybe said, in general terms, that the G-eneral Assembly may pass any law which it is not - prohibited from passing by the Constitution of the State, or the Constitution of the United States. State vs. Ashley, 1 Ark., 513. The authority of the Legislature to regulate the exercise of privileges, or the following of pursuits and occupations, does not fall properly within its taxing p>owers, but within its p>olice powers. Pursuits that are pernicious, of detrimental to pmblio morals, may be prohibited altogether, or licensed for a compensation to the public. So persons desiring to exercise privileges, or engage in callings really useful to society, may be required to obtain license, and pay a reasonable compensation therefor. Such ¡as the keepers of ferries, draymen, hackmen, and even persons who furnish meat or bread to communities. Cool. Con. Lim., 200. The power to license such privileges and pursuits has usually been conferred on county and municipal authorities. The distinction between the raising of a State revenue by a tax'upon property, and the licensing of privileges and pursuits by the local authorities, was clearly stated in Washington vs. The State, 13 Ark., 761. Here, as in most, if not all the States, retail dealers ire liquors have been required to obtain license, and to pay a compensation therefor, and under the present, as well as former Constitutions, laws requiring such payment for license-have been deemed valid and constitutional. Henry vs State, 26 Ark., 523. By the 154th section of the act of the 25th March, 1871, tlie Legislature attempted to put wholesale dealers in liquors upon a footing with retail dealers, but there has been a failure, so far as we can find, to provide any mode of enforcing-the act against the wholesale dealer. No man is obliged to-apply for license to retail liquors, nor is he obliged to áccept and -pay for license, if issued by the proper authority, and offered to him by the sheriff or other officer. But if he engages in retailing without obtaining the license, he is liable-to be punished by a criminal procedure. Gould’s Digest, Ch. 169. So, under the chapter relating to ferries, in Gould’s Digest, no man was bound to apply for or accept and pay for a license to keep a ferry, but if he kept a ferry -without obtaining a license, he could collect no toll, and was liable to a fine for keeping an unlicensed ferry. Sections 4, 14, Chap. 70. Other illustrations might be given, but these are deemed sufficient. But no provision has been made by law to punish, criminally, a person who engages in selling liquors, in quantities larger than a quart, that’we are aware of. It seems, hq-wover, from the allegations of the bill, that'tile-clerk issued, and the sheriff offered to appellants a license,, and on their refusal to accept and pay for the license the sheriff was about to proceed to levy upon and sell their property,, to make the one hundred dollars which he demanded for the license. It would he a novelty for a sheriff to levy upon and sell property with a liquor license. Such process is unknown to the law, even under the Code, which has made sad havoc of most of the common law forms. . A collector, armed with the tax-book, aiid the process which accompanies it, in the nature of an execution, (Gossitt vs. Kent, 19 Ark., 602) may sell the property of all delinquent tax payers, regularly assessed and put upon his tax-book. But licenses are not returned upon the assessment list, nor placed upon the tax-book. They are simply made out by the clerk in blank, and handed to the sheriff to be supplied to such persons as desire them. At least, such was the course pursued in this case, as alleged by the bill. See sections 155-6, Acts 1871, p. 180. The decree of the court below is reversed, and the cause remanded with instructions to reinstate the bill and award the injunction prayed for. Stephenson, J., being disqualified, did not sit in this case. Hon. E. II. English, Special Jiul/je.