Year: 1867

this Territory (Sec 6 think it equally apnlicabla


to the Legislative Assembly which enacted This law


1t has been decided as contended by the defendaT+


that the limitation of the Constitution upo Conrress


did not apply to the States. Barron. gs MayoT and


City Council of Baltimore, Peters Rep 243 Living


ston Us. Mayor of New York. 8 Wendell SO, But there


is wide distinction between the powers of a State


Legislature deriving its authority from the people of


the State, and the Legislature Of Territory deriving


Its powers, not from the people Of the Territory but


from the act of Congress, Organizing the Territory


dhe former are not boundby the limitations in the


SosutuIoq Qf the United States the latter bound


Dy tnose limitations, because the body which creates


Sne territorial Legislature, to wit: Congress, is


Congress have organized a Legislative Assemble


ior dano with authority to provide all rghtfuI local


eglslauon among which the right to lay and collect


taxes is clearly given; but Congress cannot under


Inc ConstltpLon lay Duties, imposts and exeses in


any other way than by uniform rule neither can its


creature, and any attempt to do SO issvoid In the
case OF Loughborough Us. Blake Wheaton 317 Il
was directly decided that Congress had the power Of
taxing the people Of the District of Columbia and tbe
Territories of the United States subject only to he


limitation above quoted, that the taxes should be laid


IN conformity to the rule of uniforniy prescribed in
the Constitution. AS Congress- through its accent
the Legislature of this Territory have undertaken to
exercise this right Of taxation hers it must be done
Dy the same rule which Congress itself should have
adopted in the exercise of the power primarily Sub
Ject to this limitation, the power of the Legislative
Assembly OF this Terroryto lay and collect taxes ia
as complete as the power of State and that has NO
State Constitution ~ 'n0


That the Legislature had the power to enact law
requiring the description of persons represented BY
ths plalntl to pay license of two dollars and nav
cents per day for each female employed / do not
doubt;sbut such tax must be uniform If such a
lax were imposed by municipal corporation for 30
nee or mumclpal purposes, although confined to a
Single locality in the Territory it might perhaps be
upheld But the present tax is not uniform for il
IS aneasure OF revenue and is divided between the
county ana Territory all other license taxes are
and 1t compels those persons who reside outside of
Idaho county, and the City of Lewiston in Nez Peree
county to pay more than double the tax for pursuing
tne business licensed IN this act, which is paid in
those localities If the Legislative assembly can saw
that resident of Boise county shall nav tax for
selling goods OF five per cent while the resident of
lqaho county shall pay but two it nav exenapt the
latter altogether, and if sufficient number of tbe
members from other counties could combine thew
might impose the whole burden of maintaining the
.oos soFernnlelt upon the inhabitants of single
county No such doctrine can be maintained The
have an undoubted right to tax trades
and professions but they cannot discriminate he.
eween @ persons or localities. Those taxed must be
taxed equally and in the case of the People u.s. Cole


man, 4tn Cat 56, Chief Justice Murray while affirm
ing tnat absolute uniformity was ntopian idea and
.a Tax on a1cnoneers OF foreign goods, by way of
aIoensete SELL was valid, declared sthat if the Ie-
gslature should pass act deSgedLy operatn0 ste-
4tdttg or aodnt OF uniformity apparent upos


0ce IL would be the duty of the Court to nGerpose
ana prevent the commission of so grave an Injustice


Here is an act designed to operate uneuuallv:,'
Its want of uniformity is apparent upon its face''
ana 10 upnold such statute would be giving effect
20 prlnclpe subVersiye OF all justice and fairness in
imposing taxes for the support of the povefnmerft
There is no similarity between this case and that of
laying special tax in particular locality for the
oeneht OF the locality so taxed 1t snot intended fer
Lhe beneht OF the locality which bears the higher rate
Of taxes but the taxes e6tected and part paid
INTO the Territorial Treasury for general purposes;
and II IS therefore revenue measure and cannot be
considered IN any other light The attempt to give
It the character OF police or criminal statute is
such an utter failure, that it leaves the act in its
naked detormity as areyenue measure utterly with
out support


Suppose the Legislature had required of every law
yer located III Boise County, license tax of fifty dol
ars peg annum, and imposed tax of twenty dollars
on lawyers located in the town of Lewiston-would
my one pretend that such tax was uniform !? 1t
Gould not be claimed Yet this is The case before us
Ehe proprietor of certain busiess in Lewiston paws
tax OF four dollars per day. where he employs four
PERSONS another man follows the same business in
Boise County, and employs the same number of per- !
'ons and is required to pay ten dollars think it's
7iolation Of the fundamental law too manifest for
dispute.


The third objection taken to the act that it COM
oines criminal statute with civil one would not
oe fatal II it were true The fautof the act is that
declares what shall constitute the crime and what
hall be- the punishment, but confines the means to .
8 suit, at law, Which is not process adapted to
he purpose. These provisions must therefore fail >
or want OF vitality. The conclusion to which have
rrlFed, ls that the act is invalid for the reasons a


gned and that the law existing prior to the passage
It the act OF December 1866 is the only one now in
orce relating to hurdy gurdy or dance houses


regret to be compelled to make this decision but
Vhen the duty OF the Judge is plain and he is called
pon to decide between the binding force of the fun
amena law OF the land, and local enactment which
in conflict with it, hesitation would be discredita
lie. shall therefore enter Judgment for plaintiff
7ith costs.