Town of Paris v. Graham

Dryden, Judge, delivered the opinion of the court. The only question arising in this record which this court need consider is as to the legal force of the ordinance of the town of Paris, passed the 14th of April, 1859, for the violation of which these proceedings were instituted. ' The ordinance establishes a fixed uniform tax of sixty dollars to be paid to the corporation on every dram-shop license, in every period of six months, within the limits of the town. The town charter (private and local acts of 1855, p. 174) giving authority the the council “ by ordinance, to tax, license and regulate dram-shops and tippling houses,” is silent as to the amount of tax which may be imposed on each license ; but by the 24th section of the general law regulating dram-shops, approved 18th December, 1855, (R. C. 1855, p. 686,) the council was restricted to a sum “not exceeding the amount levied for State purposes,” which, according to the 9th section of the last named law, was “not tq be less than fifteen nor more than one hundred dollars for every period of six months, the amount of tax to be determined in every instance by the court or clerk granting the license.” Thus it is seen, that, in granting the licenses under the general law of the State, the amount of tax within the limits named, to be levied for State purposes, is to be determined by the court or clerk, not in advance, but at the time of granting the license; and the town authorities being restricted in their power to a sum not exceeding the amount of the State levy, it necessarily follows that in every instance the corporate authorities must postpone the question of the amount of their imposition until the levy for State purposes is first determined. The facts of this case afford a fit illustration of the working of the rule. The tax imposed upon the appellant for State purposes was twenty dollars; before proceeding further, upon the supposition that the ordinance is obligatory, he must pay to the corporate authorities the sum of sixty dollars — ■ three-fold what, if we are right, they could lawfully demand. [97] The council, in the passage of the ordinance under consideration,' ignored the restriction imposed upon their authority, and by determining in advance an arbitrary amount to be paid on each license, sought to establish a rule which was in contravention of the law of the land; and for this reason the ordinance was of no binding obligation. The Circuit Court erred in not declaring the ordinance a nullity, as asked by the appellant. Its judgment is therefore reversed and the cause dismissed.