State ex rel. the School District v. Boyd

Sullivan, O. J. The only question to be decided in this case is whether certain moneys collected by the respondent as treasurer of the' city of Auburn are license moneys, within the meaning of section 5, article 8, of the constitution. The fund in controversy was raised under an ordinance whose object, as expressed in its title, was to impose “an occupation tax on certain occupations or businesses.” By. the third section of this ordinance it is made unlawful for any person, [830] firm or corporation to engage in any of the occupations upon which a tax is imposed, until the tax has been first paid and the fact of payment evidenced by the treasurer’s receipt, countersigned by the mayor. The fourth section provides penalties for violation of section 3. The contention of counsel for relator is that the money raised under the ordinance is license money, because the right to engage in any of the occupations or lines of business upon which a tax is imposed does not exist until the tax has been paid ■and receipted for. It is said that the receipt mentioned in section 3 is, in form and substance, a license and that money paid as a condition of obtaining it results, therefore, from an exercise of the power to license, and not from an exercise of the power to lay and collect taxes. Counsel for respondent seem also to think that the character of the fund depends upon whether prepayment of the tax and the issuance of a receipt or license are conditions precedent to the right to engage in any of the occupations mentioned in the ordinance. They say: “The test whether the money in dispute is occupation tax or license money is, whether its payment is made a condition precedent to obtaining a license to conduct the business sought to be taxed. If its payment is a condition precedent to obtaining a license, it is license money; but, on the other hand, if the payment is not a condition precedent to obtaining a license to conduct the taxed businesses, then the money is occupation tax and is properly held by the respondent, for the use and benefit of the city. In determining whether such payment is a condition precedent to obtaining a license, the relator contends that resort alone can be had to the construction of the ordinance in question. This we do not think is true.” They then proceed to argue that the penal provision of the ordinance is void, and that if the tax is paid in advance the payment is made voluntarily and not under compulsion, or as a condition precedent to the right to engage in a taxed business or calling. Our view of the matter is that the money in question belongs to the city, not because of the form of the ordinance, or the form of the receipt or license [831] issued by the treasurer, but because it was clearly and unmistakably the purpose of the mayor and council to exercise the taxing power. The city authorities had power to levy an occupation tax, and if they intended to bring that power into action, the money raised under the ordinance is part of the general revenue of the city, even though payment of the tax and procurement of a license were made conditions precedent to the right to pursue any of the taxed occupations or avocations. The ordinance declares in the first section, and in the title, that its purpose is to tax occupations and businesses. There is no attempt whatever at regulation; nothing is commanded except the payment of the tax, and nothing is forbidden except engaging in a taxed occupation or business before payment has been made. The object of the municipal authorities being to raise revenue, and not to prescribe rules of conduct for the security, convenience or comfort of the public, or to guard and conserve their health or morals, it is entirely plain that the ordinance is referable to the taxing power, and is not a police regulation. Mays v. City of Cincinnati, 1 Ohio St., 268; City of New York v. Second Avenue R. Co., 32 N. Y., 261; 1 Desty, Taxation, 305. It must be conceded, as counsel for relator insist, that the mayor and council intended to make payment of the tax and procurement of a receipt or license conditions precedent to the right to engage in any of the taxed occupations or lines of business; but that fact, in view of the clearly expressed purpose of the ordinance, is immaterial, whether the section providing for fines and penalties is void or valid. The writer thinks the section is valid. The charted expressly declares that all ordinances may be enforced by the infliction of fines and penalties (Compiled Statutes, 1901, ch. 14, art. 1, sec. 69, subdiv. 12), and it is not perceived upon what ground this provision is claimed to be in conflict with the higher law. The constitution, it is true, forbids imprisonment for debt, but a tax is not a debt; and, even if it were, the infliction of a fine or penalty would not necessarily result in imprisonment. Our cases upon this point seem to rest on no [832] principle, and they ignore the fact that penalties are, and have ever been, important incidents of all revenue measures; they run counter to the decisions in other jurisdictions (City of St. Louis v. Sternberg, 69 Mo., 289; Denver City R. Co. v. City of Denver, 21 Colo., 350; Campbell v. City of Anthony, 40 Kan., 652) ; and, since they have not become either a rule of property or procedure, there is no reason why they should be adhered to. In any view of the case, the conclusion reached by the district court is right, and should be AFFTBWED.