Year: 1867

The facts of this case are as follows: The plaintiff


Is the keeper OF pubic dance house, or ':hurdy
Igurdy, as defined by the statutes of the TERRITORY


is resident of Boise county and doing business at
Idaho City. By the statutes of this TERRITORY Tsee


Rev. Laws 4th session, page 1871 license tax is i'm
posed upon the class of PERSONS of whom plaintiff is
one, OF four dollars per day, and no license shall
issue for less time than ten days. and the Tax Col


ector IS authorized to make dsaint of property for
the payment OF said license, in case the keeper of
any such house refuse to take out license as required
by law. Thus stood the Revenue law of 1864


IN December, 1866 a law was passed by the legis-
lat1ve assembly of this Territory and approved by
the Governor, which repealed SO much of the act
above referred to as conflicts with its provsions and
enacts that after the first Monday of March, 1867 the
Incense tax on each hurdy gurdy dance house shall
be at the rate of two dollars and fifty cents per
for each girl employed in such house; except that in
the city OF lewiston in the county of Nez Perce the
existing law shall remain unchanged and that in the
county OF Idaho the rate of the license tax shall be
one dollar and fifty CENTS for each female EMPLOYED
1t also provides that in the last mentioned place the
proceeds OF all such license shall go into the Forty


five per cent Fund, and that in all other places affect
ed BY the law the county portion of the proceeds of
Isuch License shall be equally divided between the
ECounty School Fund and the Forty per cent Fund


1t further provides that any keeper of dance house
who shall fail or neglect to secure license as re-
quired by the Act shall be punished by ine on con-
Vlctlon OF the same, in any not less than one
nor more THAN two thousand dollars, and imprison-
ment not less than three months nor more than one
year, and requiring the Sheriff to prosecute and in
nlcrn8 penalty OF fve hundred dollars in of
his neglect so to do.


In obedience to this law the Sheriff whois exofico
Collector OF licenses, demanded the license of two
dollars and fifty cents per day for each hrdy gurdy
or dancing girl employed in plaintiffs house: the,
plaintiff refused to pay the same whereupon the
Sheriff threatenedto to prosecute the plaintiff as pro-
yded by the law; and the counsel Of the respective
parties having agreed to statement Of facts the case
is submitted to the Court by consent for the purpose
of determining the validity of the said statute of 1866
-reservlng the right to appeal to the Supreme Court
by either OF the parties.


The case was elaborately argued by Frank Miller.
Esq, for the plaintiff and by District Attorney May
and r. E. Foote, Esq, for the defendant
After taking the case under advisement the fol-
lowing decision was rendered by Chief Justice
Mcbride:


The case presents but one vital questionable 9th
ers are merely incidental The plaintiff insists that
the Act of 1866 is vod 1st Because it is unjust ex
torhonate and oppressive 3D. Because it is not uni
form and 3D. That it combines in one Act civil and
criminal proceedings against any one who fails to
comply with its provisions. ,s


The defendant argued that the first objection was
one that could not be properly addressed to the judi
clal department-that If it true, the remedy is
with the legislature, and that no law could be an
nulled by the judiciary on the ground that it was un
wise or even oppressive.


70 the second objection, the defendant insisted
that the provision in the Constitution of the United
States, that all duties, imports and excises shall be
uniforms does not bind the Territorial Legislature
that It Is Limitation on the power OF Congress- but
not upon the States the legislative power of or
ganzed Territories.


AS to the third objection, that it constituted no





provisions methods OF proceeding which were both
civil and criminal


1t wasaso insisted that if the legislature possessed
authority to enact portions of the law that such
provisions should be upheld although portions of the
same Act might be adjudged void for excess of
authority.


This statute is in many respects very singular
one. The first FIVE sections devoted to prescrib
ing the amount of the tax license the manner of
collecting by whom and to what funds it shall be APP
propriated. The sixth section provides the penalty





tion The seventh section requires the Sheriff (he
collector p to prosecute the S contemplated by this
act none is provided for in the actsrid if he fails
negIects to prosecute he forfeits the sum of $780,


The eighth section repeals all laws in conflict with
the provisions of this act and contains provisions
saving the city of Lewiston from its effect and modi-
lying the tax or license to dollar and fifty cents
III Idaho county. That it is inartifcally and bung-
ngy drawn, is apparent to the most casual exaiina-
tion The provisions imposing the license tax pro
Ydng for its collection and the purposes to which
shall be applied sufficiently simple and plain
The sixth section, though somewhat obscure by the
use Of the term 'sui instead of prosecution or in
dlctment is perhaps sufficiently clear to know what
was intended.


! The seventh section is certainly an absurdity It
requires SuH to be brought "as provided in that |
section when none is provided; it REQUIRES
f'suit as contemplated by the Act'-which can
only mean prosecution for a criminal offense: and
the person who drew the act seemed to have no per-
cepton OF the legal distinction between a ctv1 pro
ceedng by suit at law, and criminal prosecution to
punish by fine and Imprisonment. The acttseems to I
me to be hopelessly lame in these two sections
that any attempt to enforce them would be utterly
vain. Ii the Sheriff should bring "suit' to en-
force the fine and imprisonment provided by the act
the offender would claim the benefit of an Indictment
by Grand Jury of his peers and all the benefits Oft
the criminal Iaw-and such civil proceeding must
fail Ii he were indicted he would claim that the f
statute directed the Sheriff to proceed by suit" So
that it seems the act has by its own confusion of
terms and proceedings, completely neutralzed itself
What the legislature intended to do is clear enough
but the means which it has provided cannot be ap-
piled by any Court. The Court cannot sentence an
Offender to fine and imprisonment without an indct.
ment and conviction while this act provides that it
shall be only by suit.
can conceive Of no way of giving effect to these
sections OF this act. This much by way of obserVa-
Gion upon the form of the act in question.
y I now proceed to examine the objections of the
plaintiff in the order in which they are presented.
The plaintiff urges that this act is void because it
is extorionate and oppressive.
This is question of fact and not of law. I do not
know that the license required is high or low Ii
eense TIE amount of tax is subject of legislative
To the taxpayer, taxes always seem high
but whetheE thelegislature have exceeded the Just
Whatever tax the citizen pays is imposed by himself
through his legislative agents. and the remedy is i'll
bis hands-not in that of any court
1t is true that tax may be manifesty invidOus
unequal, and 91olafve of the fundamental principles
Of taxation, as toTeqrb the Intervention of the u
dietary; but that Can never be the simple ground
that 1T is unjust ard oppressive When it is incon-
slstent with some gLdranteed fundamental right Of the


aze may be set aside to prevent oppression but
only in some such extreme case, and do not per- !
ceYe this to be one This disposeS of the authorities
cited in the Pacific Law Magazine (the Utah easel
md the reference to the caseof the People Cole
man. 4th Cal Rep. Sc +
The second objection Of the plaintiff to this act is
hat it violates the provision OF the 8th section of the
Constitution of the United States, which says that
I fan duties, imposts and excises shall be uniform