State ex rel. Troll v. Hudson

Per Curiam.

i. dbamsiioi? licenses: police power: taxing power. The State has the right, in the exercise of its police power, to prohibit the sale of intoxicating liquors without a license. Austin v. State, 1 0 Mo. 591 ; State v. Lemp 16 Mo. 389 ; State v. Searcy, 20 Mo. 489 . The license fee exacted by the general law regulating dramshops and the act amendatory thereof, approved March 24th, 1883, is not a tax within the meaning of sections 1, 3 and 10 of article 10 of the constitution, but is a price paid for the privilege of doing a thing, the doing of which the legislature has a right to prohibit altogether. Such laws are regarded “ as police regulations, established by the legislature for the prevention of intern *305 perance, pauperism and crime, and for the abatement of nuisances,” and are not regarded as an exercise of the taxing power. “ Pursuits that are pernicious or detrimental to public morals may be prohibited altogether, or licensed for a compensation to the public.” Cooley on Const. Lim., (4 Ed.) p. 727; Burch v. Mayor, etc., 42 Ga. 598 ; Bohler v. Schneider, 49 Ga. 195 ; Chilvers v. People, 11 Mich. 43 ; People v. Thurber, 13 Ill. 554 ; East St. Louis v. Trustees of Schools, 102 Ill. 489 ; s. c., 40 Am. Rep. 606 ; and cases cited; Henry v. State, 26 Ark. 523 ; loc. cit. 525. It does not follow because the license fee is large, or because it may become a part of the public revenue that it is, therefore, a tax. State v. Hipp, 38 Ohio St. 225 . Many fines, penalties and forfeitures become a part of the public revenue of the State that are not derived from taxation. The disposition made of the fund derived from the license fees does not necessarily determine the character of such fees. The legislature were evidently of opinion that the taxation of a large license fee would tend to diminish the number of saloons and improve the character of those licensed, and thereby secure to a greater degree compliance with all the regulations and restrictions which the law has thrown about such resorts. "We are of opinion, therefore, that the act of March 24th, 1883, is not unconstitutional.

2._. clty of st> Louis- We are further of the opinion that section 5441, as amended by the act of March 24th, 1883, is applicable to the city of St. Louis. It was said by the court in the case of the State ex rel. Attorney General v. McKee, 69 Mo. 508 , decided at the April term, 1879, that a general law with reference to the counties of the State would not apply to the city of St. Louis. But it is provided by section 3126 of the Revised Statutes, which took effect in November, 1879, that “whenever the word ‘ county ’ is used in any law general in its character to the whole State, the same shall be construed to include the city of St. Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially *306 applicable to such city.” We think it was the obvious purpose of the act of March 24th, 1883, to increase the license fee for the sale of intoxicating liquors throughout the State, and it is not, therefore, inconsistent with the evident intent of the act to declare it applicable to the city pf St. Louis. Nor is such construction inconsistent with any law specially applicable to the city of St. Louis. The only law on that subject applicable to the city of St. Louis is its charter, which authorizes it to license, tax, regulate or suppress saloons, beer houses, tippling houses, dramshops, etc., but the charter does not fix the amount of the license fee to be required, and the law in question, which limits the amount thereof, is, therefore, not in conflict with the charter, but is consistent with and supplementary thereto. It follows that the ordinance passed in pursuance of the charter fixing the amount of the license fee at $60 is repealed by the act of 1883, which prescribes a limitation as to the amount to be charged in conflict with said ordinance.

s.-. We are further of opinion that under the act of 1883 it is the duty of the municipal assembly of the city of St. Louis, and of the county courts of the several counties in this State to fix the amount of license fee to be charged under said act within the limits prescribed, and until such action is taken by said municipal assembly, and said county courts, no collector has a right to issue a license to any person as a dramshop keeper. As it does not appear from the agreed statement on which this 'cause has been submitted, that the municipal assembly has ever fixed the amount of license fee to be charged in the city of St. Louis, the collector has no right to issue a license, and the peremptory writ of mandamus will, therefore, be refused.

Judges Norton and Sherwood did not sit, being absent.