The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-04-09
He is NOT FULLY CONVINCED
AS TO THE LEGAL STATUS OF THE
BILL TO BE
PASSED.
COURTS SHOULD HAVE A CHANCE
To Determine It's ConstitutionalHty
if Legislators Are Convinced as
to It's Expediency-

occupation tax bill, at the request OF a
senator who has taken an active inter-
est in the matter:
You are so familiar with the provisions OF
the bill in question, that l shall content my
self with a brief reference TO only few OF
it's most salient features. Personal property
is grouped by it into forty-eight distinct
classes, which are intended to and do embrace
every article Of merchandise. BY its terms,
it Is designed to tax occupations and prlv1i-
eyes, ''to provide for the current expenses
of city government Cities are divided by 1t
for purposes of taxation, into the three classes
authorized by the constitution. The bill fixes
maximum taxes upon occupations and privt-
leges within which limitations municipalities
may prescribe by ordinance the taxes to be en-
forced. Only those engaged in dealing IN
more than three classes of business, as de-
fined by the bill, become subject to Its pro-
visions. No account is made as to the vol
ume of business transacted, or the valuation
of the stock in trade, or capital invested;
hence the tax is to be purely arbitrary in its
nature, and will increase With the increase
in the number Of kinds Of business transact
ed by the same individual, with no regard TO
ratio whatever. Under the operation Of the
bill, one who Is subject to the tax therein
authorized, by reason Of engaging in four or
more classes of business cannot engage IN
an additional class without becoming subject
to tax ranging from $50 to $4,000, providing
the maximum rates are adopted
Two questions have suggested themselves
to my mind in considering the bill:
First-Is 1t a revenue measure and there
fore in violation of article 4, section 10, Of
the constitution which provides that every
such measure shall originate in the house OF
representatives?
Second-Does 1t violate article 9, section l
of the constitution, requiring equality and
uniformity Of taxation?
/ find no difficulty in answering the first
question in the negative. 1t is not measure
for raising revenue, within the meaning Oh
the constitution. That provision contem-
plates revenues for state, as distinguished
from municipal purposes. But whether this
be true or not, the bill does not levy tax,
but merely confers authority to levy one for
local purposes. Even concedng that article
of the constitution is restrictive to great
err extent than that above suggested, the bill
is not even then revenue measure (dar-
per VS.. Commissioners, % Ga, 570)
2. The remaining question is not so easily
disposed of. Indeed, l am not fully satisned
that the bill can be sustained as valid
measure, either for purposes OF taxaton or
| police.
| 1 have no doubt that occupations and privi-
| leges may be taxed; nor do | entertain any
| doubt that such form Of taxation may exist
| concurrently with the taxation OF property
| in specie. The authorities upon this PROPOSE
| ton are numerous and decisive. While there
! are decisions containing dicta to the con-
| trarv it Is my view of the law that where
a business or occupation is taxed, the tax
must be laid with substantially uniform
! hand upon every business or occupation Of
! the same class
to be and what is claimed for it by it's friends
a measure authorizing the levy OF tax FOL
municipal purposes, there is then but one
theory upon which it can be sustained L
at ali and that is, that it contemplates a tax
upon the privilege Of doing four or more o
the kinds or classes Of business enumerated
| therein. regardless Of their character Iher'
( are certainly, authorities holding that tht
| privilege of doing business is taxable, and !
| is, perhaps, competent for the legislature tt
| prescribe the same tax for the privilege o
! doing a given number of the said classes o.
| business yet 1 am far from satisfied that the
! principle contended for can be succesS1ully
applied in the case Of the bill in question
The privilege of doing any kind Of bushes:
| is deemed a valuable property right, which
! enhances with every increase in the scope o
the business transacted and justiies heavi
| err tax; but the question naturally arises
| whether the tax is one Wnlch Will receive
! judicial sanction.
By the terms Of the bill, one who desires
to engage in twenty Of the lines OF business
enumerated, will be required to pay an an
nual tax, in round numbers, OF $z0,O0O, !
the maximum amounts adopted. 1t is saf
to say that such rate of taxation is noWher
approached in our present system OF ia.
legislation The very burdenSomeness OF sue
| a tax suggests that the bill seeks anothe
object than revenue namely, regulation. Tn
subject of the regulation is obvious enough.
Instances are not wanting where taxes nav
been laid both for purposes OF revenue an
police. Where the subject is a proper one
such legislation, in the absence of an eX
press or necessarily implied constitutions
prohibition is competent. The power o
police and taxation are closely allied, an
the discretion of the legislature as to bot
are very large. In laying an occupation ia
the legislature not only may select the sub
iect but it may do so regardless OF its acuo
As to other subjects. 1t will discharge 1t
full constitutional duty in so laying a ia
that it shall fall equally upon all who engag
in the particular occupation
While all this is true, there is no dout
| a limitation as to the extent of the burde
which may be imposed. Taxes must
levied for the public good and from SCUM
public motives. While it is true as a priI
| ciple that the power to tax implies the powe
to confscate. it may well be doubted whethe
any court in an enlightened country Woul
sanction its arbitrary, unreasonable ana OF
pressive application to the extent OF conflscat
ing property where the public good did NJ
seem to require 1t.
While the reaSonableness OF the regulatio
tax depends very largely upon the legis
lative discretion such tax should not, as
general proposition. exceed what is neceS
sary to cover the expenses incident to publ
supervision. (32 Mimi. 1861
The bill presc-i5es maximum taxes, lea'
ing 1t to municipalities to fix them with
the limitations imposed. 1t was said in Gil
of st. Paul VS.. Coulter, II MINI. 10. tn;
what limits should be imposed upon tt
licensing power was a matter for the legisl
ture to determine, matter dependent up6
ture In such case we do not think it prop
to question the exercise OF legislative dfscr
tion 1t is possible there may be instance
where this discretion is so grossly and man
, testify abused that the courts may be call'
upon to pronounce its exercise usurp
; ton; but 1t will be time enough to dispo
Of the questions which might arise und
such circumstances when they are preSent'
for adjudication
: Ordinarily, whara regulation Is the pr
mary purpose, a license fee is prescribed; b
the proposed measure not only does not CO.
3 ! tain such a provision, but it in terms pu
| ports to be for the purpose Of comforting upC
city councils power to levy and assess
annual tax to provide for the annu
q But the courts will be governed by the /
Y tent rather than the language Of the b
: and adjudge rights under it accordingly.
Applying tbs provisions Of the bill to d
I aimed, is that institution Of such charact
8 as to require police regulation?
Y It should not be overlooked in this co
nection that the legislature cannot cha
acterize a useful harmless business as
O. nuisance, or an evil, and thereupon visit up
it unreasonable and oppressive burdeT
Speaking of the police power, 1t W
>, said in State VS.. Donaldson, Al Mimi. 50, ''tf
$ within it's legitimate sphere a very usef
. one. 1t is wholly within the discreti
- of the legislature when to exercise 1t, and
: determine what are the best means to g
I. complsh the desired object. Courts will new
@ assume to determine whether the law is
II wise one, or whether the legislature ha
adopted the best means. Yet there is a lin
:. TO this power"
partment store is a matter with which y
are as familiar as myself. 1t may perha
10 be generally said Of 1t that II both hui
% and benefits That 1t has given rise to mo
= or less popular prejudice by reason Of its
- feet upon other kinds of business viii not
questioned. But granting all that is charg
n a character as to warrant public regulate
,e When a business becomes affected with