right of eminent domain. But these are mere suggestions. Perhaps the only remedy against such taxation by the cities and counties, should it become burdensome, is an application to the legislature of the State, the fountain of the taxing power.

A city may tax avocations pursued in the city, though the persons taxed may reside elsewhere.1 So a stage company is liable to a license tax in a city for carrying passengers from that to another city, and the fact that the carrying is without the limits of the city, does not make the receiving and discharging of passengers and contracting for them a business conducted out of the city. A tax on the gross sales of a commission merchant is valid, although the owner of the goods may not be a resident of the city, or even of the State, and so is a tax on the gross sales of produce sold from flat boats landing in the city. An ordinance imposing a tax on all articles of trade and commerce sold in the city, includes the sales of goods made by the traveling agents of a merchant, though the sale actually be made in another State.5 In this case the agents had authority to contract for the sale of goods, the contracts were forwarded to the merchants in Pittsburgh, and the order filled from goods in their store in Pittsburgh, and shipped to the purchasers.

§ 132. Taxing Power, when changed-License Tax and Police Power-Levy of the Tax.-Speaking of municipal corporations, in a recent case, Judge Clifford says: "Corporations of this kind are properly denominated public corporations, for the reason that they are but part of the machinery employed in carrying on the affairs of the State, and it is well settled law that the charters under which such corporations are created may be changed, modified or repealed as the exigencies of the public service may demand." The case was one in which a county had incurred a large indebtedness for county purposes, and subsequently two other counties were created out of a portion of the same territory. The indebtedness was paid by the old county and suit brought against the new counties for contribution. The action was not sustained, the court taking the view that the rights of counties were such only as designated in the statute, and as this division was made without any provision as to the payment of

A

1 State v. City Council, 2 Speers (Law), 623, 719.

City of Sacramento v. California Stage Co. 12 Cal. 135.

3 Pearce v. Augusta, 37 Ga. 597; Padelford v. Mayor of Savannah, 14 Ga. 438; Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, 8 Wall. 148.

4 Harrison v. Vicksburg, 4 Smed. & Marsh. 581.

Shriver v. Pittsburgh, 66 Penn. St. 446.

Bd. of Co. Commissioners of Laramie . Bd. of Co. Commissioners of Albany, 13 Alb. Law Jour. 230; s. c. 2 Otto, 307.

the debt of the old county, it succeeded to the debts and property of the original county, and could not claim contribution from the new counties. The principle has been often applied in cases where new districts have been created for purposes of police or health out of one or more counties, or portions of counties, and large powers vested in boards of officers appointed to exercise police powers in such districts.1 The same principles apply to the taxing powers conferred upon counties or cities. They are derived from the legislature, and are delegated for public purposes, to enable the local subdivisions of the State to administer the powers of local government which have been intrusted to them. Where a tax was assessed under authority delegated to a city, and after the assessment, the act was repealed by the legislature, and proceedings to enforce the collection of the tax prohibited, the act was sustained, the court holding that the assessment of the tax did not create a debt, and that the powers vested in cities might be changed by the legislature at any time. While it would seem to be necessarily true of all subdivisions of the State, that powers delegated for public purposes, for the more convenient administration of the government, might be changed whenever the legislature deemed that the affairs of State would be conducted in a more acceptable manner, yet there are opinions sustaining a modified view of the question. In People v. Draper,3 Brown, J., dissented, but the dissent was based rather on what he claimed the Constitution of the State guaranteed to the counties, the government of their local affairs by local officers, elected by the people. The creation of a district different from the counties, and vesting governmental powers in a board of officers not appointed by the people he considered as violating that provision.

A well considered case in Iowa, decides exactly opposite to the view of the case from Maine. A tax was levied on a railroad, and subsequently the legislature released the railroad from taxation. It admits the general doctrine that the legislature may modify or change the powers of municipal corporations at any time, yet when the power of taxation has been delegated, and that power has been exercised by the levy of a tax, it vests a right of property in the corporation, which is protected as well as the rights of individuals. The opinion claims that there is no distinction between public rights and

1 People v. Draper, 15 N. Y. 532; Met. Bd. of Health v. Hester, 37 N. Y. 661; Baltimore v. Bd. of Police, 15 Md. 376; Darlington v. Mayor, 31 N. Y. 164.

2 Augusta v. North, 57 Maine, 392.

4

* 57 Maine, 392; 39 Iowa, 56.

3 15 N. Y. 532.

private rights, though there is between public and private wrongs, but that the legislature has no more authority to divest vested rights of public corporations than it has to divest the rights of private corporations or individuals. It is admitted that the legislature has full control of the property of municipal corporations, but it is claimed that its control is limited to the purposes for which the municipality exists. They exist for governmental purposes, and the legislature may designate how their property is to be used for these purposes, but it cannot destroy their property. The tax when levied was considered as a debt due the city. Where money was raised by a city by taxation for the purpose of building a high school, an act of the legislature applying the money thus raised to the purchase of a site for a normal school was declared void. The city was said to have a vested right in the money raised for a municipal purpose, which could not be divested. While the cases from Iowa and Wisconsin cannot be reconciled with that from Maine, yet they may well consist with the general principle, that the powers of cities and counties may be changed at the will of the legislature, the change being limited only by the restriction that rights of property which have become vested shall not be divested.

License Tax and Police Power.-The power to regulate various pursuits or occupations in cities or counties, or the police power, is generally conferred by statute, and usually exercised by requiring the parties to obtain a license from the local authorities. Under the taxing power a license may also be required, and the payment of the tax made a condition precedent to issuing the license. When a city has the power both of taxation and police delegated to it, it is immaterial under which the license is required. Under the taxing power there is no limit as to the amount which may be charged, but under the police power the fee charged must be reasonable, and so must the regulation which is enforced. An ordinance requiring a license fee of five dollars for the use of stalls outside of the market house is reasonable, and so is an ordinance regulating draymen and requiring a license fee of three dollars. An ordinance conferring on the mayor the power to revoke the license under circumstances designated is reasonable. The license fee is not limited to the mere costs of issu

1 City of Dubuque v. Ill. Central R. R. Co. 39 Iowa, 56.

2 State v. Haben, 22 Wis. 660; Milwaukee v. Milwaukee, 12 Wis. 93.

3 Ash v. People, 11 Mich. 347; Chilvers v. People, 11 Mich. 43, fifty dollars for a

ferry license; Burlington v. Putnam Ins. Co. 31 Iowa, 102.

4 City of Cincinnati v. Bryan, 10 Ohio, N. S. 625.

'Wiggins v. Chicago, 68 Ill. 372.

ing the license;1 indeed it is often sufficiently high to raise a fund to be used in enforcing the regulations adopted to restrain the improper exercise of the avocation or pursuit licensed. A license of $250 on the retailing of liquors was sustained as a police regulation proper for a business of that character, and was not considered as a tax.3

It often happens in certain avocations, as the retailing of liquors, the keeping of bars, of saloons and places of amusement, that the power to tax is used in aid of the police power, either by devoting the fund to the payment of the police force, or by making the tax so high as to be in its nature prohibitory. An ordinance prohibiting the keeping a saloon without a license, and imposing a tax on such business is valid, notwithstanding the Constitution prohibits licenses for the sale of intoxicating liquors. The power to tax or restrain the sale of liquor includes the power to license. But it is said that under the grant of the police power to pass ordinances for the security, welfare and convenience of the town, an ordinance requiring a license fee of $1,000, and imposing a fine of $50 per day for its violation, is a prohibitory law, and not within the police power delegated." When there is a grant of the police power it confers no power to tax, and if it appear that the amount charged is fixed for the purpose of revenue, it will be void. "To regulate and restrain tippling houses," confers no power to tax them, "to license innkeepers," no power to tax them for the license, and an ordinance taxing hucksters and ginshops, is not valid under an authority delegated to "make police regulations," 10 nor under a similar power, an ordinance, requiring persons selling at stands in the street, or hawking through the streets, to pay the sum of five cents, valid." There is no power to tax conferred, and it is not reasonable as a police regulation. The charter of the city of Cincinnati prohibited any charge on provisions brought to market in wagons, but allowed the city to prevent huckstering. An ordinance that certain persons should be deemed hucksters, and requiring

9

'Carter v. Dow, 16 Wisc. 298, 566.

2 Fire Department v. Milwaukee, 16 Wisc. 136; Smith v. City of Madison, 7 Ind. 86. 3 Baker v. Panola Co. 30 Texas, 86; Burch v. Savannah, 42 Ga. 596; State v. Doon, R. M. Charlton, 1.

Durach's Appeal, 62 Penn. St. 391; State v. Parker, 32 N. J. Law, 426; Fletcher v. Oliver, 25 Ark. 589.

Kitson v. Mayor of Ann Arbor, 26 Mich. 325.

Mt. Carmel v. Wabash Co. 58 Ill. 69.

* Ex parte Burnett, 30 Ala. 432; Craig v. Burnett, 32 Ala. 728.

8 Mayor v. Beasely, 1 Humph. 317.

9 Freeholders of Essex v. Barker, 2 Halsted, 67.

• Dunham v. Trustees of Rochester, 5 Cow. 462.

11 Kip v. Patterson, 2 Dutch. 298.

them to pay a license tax of thirty dollars, was considered a tax which could not be imposed under pretense of preventing huckstering.1 But under a subsequent charter allowing the city to regulate markets and market places, a license tax of twenty-five cents on the same class of persons for occupying with a wagon stands in the market, was deemed valid. An ordinance as to market wagons selling articles of a perishable nature, that they are not to remain on the stand more than twenty minutes between one and four o'clock P. M. is valid as a police regulation.3

The difference between a license fee and a tax is well pointed out in a case in New Jersey. The power delegated was "to regulate the building of vaults, and laying of water or gas pipes in or under the streets, so as to secure to the public and adjoining properties, the safe and convenient use of the streets and sidewalks." The ordinance under this power required every person desiring to build a vault, if it was to a private or dwelling-house, to pay twenty cents for every square foot of earth removed, and if it was a store or shop, forty cents a square foot. This assessment was considered a tax, not a license fee under the police power. "The functions of the police power are not primarily for raising revenue, though incidentally they may benefit the treasury by the fees for licenses which are exacted, but the fee must be reasonable. The power conferred here is to regulate, and the license fee in such cases must be such that the court must see that it is adapted to the maintenance of good order, and is a reasonable means of attaining that end."4

Where a street railroad was chartered by the legislature, subject to municipal regulation, an ordinance requiring each car to be numbered, and a license to be placarded in each car, for which a fee of five dollars, and afterwards of thirty dollars, was charged, was sustained as a police regulation. It was not considered as a tax, and that the sums received were for the use of the city, did not show that it was for the purpose of raising revenue; all fines under the police power incidentally benefit the treasury. A similar ordinance in New York was considered a tax and not a regulation of internal government. But there is a considerable difference in the cases. In this latter case in December, 1852, the city granted to Pearsall and others the privilege of constructing a street railroad, and all the details of the contract

1 Mays v. The City of Cincinnati, 1 Ohio, N. S. 268.

2 City of Cincinnati v. Buckingham, 10 Ohio, N. S. 257.

3 Commonwealth v. Brooks, 109 Mass. 355. 4 State v. Hoboken, 33 N. J. Law, 280. 5 Frankfort R. R. Co. v. Philadelphia, 58 Penn. St. 119; Johnson v. Philadelphia, 60 Penn. St. 445.