Omaha daily bee., 1902-03-11
TAKES REVENUE OF SCHOOLS
Supreme Court Decision Shuts Of Saloon
Money in Many Cities.
INSANITY EXPERTS IN MURDER CASE
shotgun EHpIodes and wounds Harry
JOhnson-LineOIn e. set Against
slot Maehfnes-GeneraI
state News.
TrOm a stan correspondent

prom a stan Correspondent
LINCOLN, March 10.-(Specisl 1.-THE SUI
preme court has given a decision which will
have the effect in many cities Of taking
away from the schools the revenue de-
rived from the occupation tax assessed
against keepers Of saloons. The holding
is in a case appealed from Nemaha county,
in which the city Of Auburn claimed a right
to all money recovered from saloons through
the levy Of the occupation tax. The opinion
YVES written by Chief Justice Sullivan.
In the syllabus OF the opinion the court
declares that whether money raised under
the provision Of a municipal ordinance re-
curing every person engaged in q certain
occupation OF business to pay a fixed sum
annually into the city treasury. is license
money, within the meaning Of the consti-
tuition, depends upon the substance and
purpose Of the ordinance rather
than upon its form 1t is held
that II the purpose Of the city authorities
in adopting the ordinance was to raise
revenue then the money exacted was a
tax, but IL regulation was the end and OBJ
ject in view the money results from an ex-
ercise Of the police power and is license
money. An ordinance having no element
OF regulation and showing on its face that
the sole purpose of the city authorities
IN hQOplluB II was 70 Idlht TWELVE Is
held 10 be a tax ordinance. even though
the right to engage in the business or
calling taxed is made to depend upon pay
ing the tax and obtaining a license.
Question Depends on Constitution.
The only question involved in the case
was whether or not certain funds collected
by the city treasurer of Auburn were
license moneys within the meaning 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 one section Of this or
dinance 1t was made unlawful for any
person to engage in any Of these occupa-
tions upon which a tax was imposed until
the tax has first been paid and the fact OF
payment evidenced by the treasurer's re-
oeipt, countersigned by the mayor. An
other section provided penalties for the
violation Of the provision The contention
Of the school authorities was that the
money raised under the ordinance was Ii
cense money because the right to engage
in any Of the occupations did not exist
until the tax had been paid and re-
ceipted for. 1t was argued that the re-
ceipt was in form and substance a license
ard that the money paid as a condition Of
obtaining It resulted, therefore. from the
exercise Of the power TO license and not
from an exercise Of the power to lay and
collect taxes.
The court says its view Of the matter Is
that the money in question belongs to the
city. not because OF the form Of the ordi-
nance or Of the form of the receipt or Ii
cense, but because II was clearly and un-
m~istakably 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 we're made conditions precedent to
the right to pursue any Of the taxed occu-
pations or avocations," continues the court.
THE ordinance declares in the first sec
tion and in the title that its purpose is to
tax occupations and businesses. There is
no attempt whatever at regulation. Moth
ing Is commanded except the payment of
the tax and nothing is forbidden except en-
gaging in a taxed occupation or business
before payment has been made. The OBJ
| ject 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 con-
serve their health and morals, 1t is entirely
plain that the ordinance is referable to the
taxing power and is not a police regula-
tion.
ut must be conceded that the mayor and
council intended to make payment of the
tax and procurement of a receipt or IL
censs conditions precedent TO the right 20
engage in any Of the taxed occupations or
lines of business, but that fact. in view OF
the clearly expressed purpose Of the ordi-
nance, is immaterial. whether the sec
tion providing for fines and penalties is
void or invalid. The writer thinks the
section is valid"
Judge HOIcOmb Partly COncurs.
Judge Holcomb sppends a concurrlng
opinion. in which he says: 81 concur only
in the conclusions reached by the chief jus
tiee in the foregoing opinion, but md my
self wholly unable to agree TO many Of the
views therein expressed. To my mind the
tendency OF the opinion is to unsettle. If
not directly overthrow. several prior deci-
sions OF this court on the same general
subject. This court has frequently ex-
pressed itself on the question OF distinc-
tlon between a license and an occupation
tax. II has also laid down the doctrine
that 20 engRge in business declared unlaw-
ful unless a license is first obtained may