State v. Bengsch

SHERWOOD, J.

Prosecution for alleged violation of some of the provisions of an act approved April 17, 1901, entitled as follows:

“An act to provide for a State license tax on distilled liquors, including whiskey, brandy, rum, gin and distilled spirits of all kinds, wines and all kinds of vinous liquors; to create the office of special license commissioner, and to provide for the appointment thereof by the governor.”

As the act in its entirety will accompany this opinion it is deemed unnecessary to set it forth here at large. But such sections of it which occasion demands, to be specifically discussed, will be set forth herein;, among such sections thus requiring specific discussion, is the last one of the series, which reads this way:

“Sec. 25. There being a deficiency in the revenues of the State, creates an emergency within the meaning of the Constitution; therefore, this act shall take effect and be in force from and after its passage.”

The information which was filed to enforce certain provisions, and to punish certain alleged violations of the act, is in these words:

“Miles S. Horn, prosecuting attorney within and for the county of Bates in the State of Missouri, informs, the court that Paul Bengsch on the 15th day of February, 1902, at the county of Bates and State of Missouri, being then and there a dramshop-keeper, did then and there unlawfully and knowingly take and receive into his dramshop one barrel containing forty-gallons distilled liquor, commonly known as whiskey, which said barrel containing whiskey as aforesaid, did. not have affixed thereto adhesive special license tax stamps of the value and at the rate of ten (10) cents for-each gallon of said whiskey then and there contained, in said barrel; contrary to the statute in such case made and provided and against the peace and dignity of the-State.

*101 “And the said Miles S. Horn, prosecuting attorney as aforesaid, of the county and state aforesaid, further informs the court that the said Paul Bengsch, on the 15th day of February, 1902, at the- county of Bates, and State of Missouri, being then and there a dramshop-keeper, did then and there unlawfully and knowingly sell one gill of distilled liquor, commonly known as whiskey, which said liquor was then and there unlawfully and knowingly drawn from a barrel, which did not then and there have affixed thereto adhesive special license stamps of the value and at the rate of ten (10) cents for each gallon then and there contained in said barrel; contrary to the statute in such cases made and provided, and against the peace and dignity of the State.

“And the said Miles S. Horn, prosecuting attorney aforesaid, further informs the court that the said Paul Bengsch, on the 15th day -of February, 1902, at the county of Bates and State of Missouri, being then and there a dramshop-keeper, did then and there unlawfully and knowingly sell to one John Doe, whose real name is to informant unknown, one ... of distilled liquor, commonly known as whiskey, without first having had, obtained and received from the special license commissioner of the State of Missouri, a permit authorizing and entitling him, the said Paul Bengsch, to purchase special license stamps from the said special license commissioner; contrary to the statute and against the peace and dignity of the State. ’ ’

Responding to this information, defendant filed a motion to quash it, which, omitting caption, alleges the following grounds:

“Comes now the defendant herein and moves the court to quash the information heretofore filed in said cause and each count thereof, for the following reasons:

1. That the act of the General Assembly of Missouri of April 17, 1901, upon which said information is based, is unconstitutional, inoperative and' void, because :

. (a) Said act violates section' 28, article 4 of the *102 Constitution of Missouri, which provides that no bill (except certain bills therein specifically designated) shall contain more than one subject, which shall be clearly expressed in its title.

(b) Said act is violative of section 8 of article 10 of the Constitution of Missouri, which provides that the State tax on property, exclusive of the tax necessary to pay the bonded debt of the State, shall not exceed twenty cents on the hundred dollars valuation, and whenever the taxable property of the State shall amount to nine hundred million dollars, the rate shall not exceed fifteen cents.

(c) Said Act of April 17, 1901, violates section 4 of article 10 of the Constitution, which provides that all property subject to taxation shall be taxed in proportion to its value.

(d) Said act violates section -3 of article 10 of the Constitution of Missouri, which provides that taxes may be levied and collected for public purposes only, and that they shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax,- for the reason that if the act is not a tax upon property, it is a tax upon an occupation and lacks uniformity, and that those engaged in the same class of business are required to pay different amounts and for the further reason that it requires one who sells spirits brought into this State to pay for the privilege of selling; whereas nothing is required to be paid for the privilege of selling distilled spirits which are manufactured in this State.

2. Said act is. violative of the Constitution of the United States, in that:

(a) It violates the fourteenth amendment to said Constitution, which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws.

(b) It violates section 8, article 1 of said Constitution, which gives Congress the exclusive right to regulate interstate commerce,

(c) It violates the second clause of section 10, *103 article 1 of said Constitution, which, prohibits any State from laying an impost upon an import.

3. Because said Act of April 17, 1901, is inoperative and void for uncertainty and for want of adéquate and practical provisions to early it into execution.

4. Because it does not sufficiently appear in the information what the spirits are which defendant is charged to have sold.

5. Because the package from which the spirits are alleged to have been sold is not sufficiently described in the information.

6. Because it is not sufficiently charged in the information whether the spirits in. question were manufactured or distilled in this State or whether they were manufactured or distilled in some other State or country, and brought into this State for sale herein.”

1. The first point which will receive discussion is the sufficiency of the information, treating the act on which it is bottomed as constitutionally valid.

Section 4 of the act has these provisions: ‘ ‘ There shall be paid for the right and privilege to manufacture for sale in this State distilled liquors, including whiskey, brandy, rum, gin, and distilled spirits of all kinds, wines of any kind and every class of vinous liquors, and for the right or privilege to sell all such distilled or vinous liquors or products, brought or shipped into this State for sale herein, a special license tax of ten cents for every gallon and at a like rate for any other quantity or fractional part of a gallon contained in a receptacle of any kind or character whatever.”

This section, as will readily be noted, applies alone to two classes of persons, .and demands at their hands, “a special license tax”; first, those who “manufacture for sale in this State distilled liquors, including whiskey, rum, gin and distilled spirits of all kinds,” etc., etc; second, those who ‘ ‘ sell all such distilled or vinous liquors or products brought or shipped into this State for sale herein.” Unless the whiskey belongs to one of -these classes, it is quite too obvious for discussion that no tax is imposed by, or collectible under, the statute.

*104 For instance, if the whiskey were manufactured in this State for sale outside of this State, no tax, under the very terms of the act, could be imposed upon it. Or, if the whiskey were manufactured in this State prior to the taking effect of the act, or had been brought into this State prior to that time, inasmuch as the act is to be taken as prospective, and not retrospective, in its operation, the information would charge no offense; and it is the duty of the draftsman to so draw the information as to make it show a prima facie case; and unless it does this, it charges no offense, since it is unquestionably necessary that every thing requisite to be proved must be alleged in order to conviction; and the law in the same beneficent spirit which presumes innocence until guilt be established, will also presume that what the information does not charge, does not exist. [Mears v. Com., 2 Grant’s Cas. (Pa.) 385; State v. Barbee, 136 Mo. loc. cit. 444; State v. Hayward, 83 Mo. loc. cit. 308, 309, 310, and cas. cit.] “The defendant must be specially brought within all the material words of the statute; and nothing can be taken by intendment. ” [1 Whart. Cr. Pl. and Prac. (9 Ed.) sec. 22C; 1 Bishop Cr. Proc., secs. 81, 86, 88, 519; State v. Sekrit, 130 Mo. loc. cit 406; State v. Burke, 151 Mo. loc. cit. 140, 141, 142, and cas. cit.]

And it is one of the tests of the insufficiency of an indictment that every allegation may be taken to be true, and yet the defendant be guilty of no offense. [Com. v. Harris, 13 Allen 539 ; Com. v. Collins, 2 Cush. 558 ; Turner’s Case, 9 Q. B. 80; Reg. v. Harris, 1 Denison C. C. 466; Reg. v. Rowlands, 2 Denison C. C. 377.]

Here, if defendant merely sold whiskey, he was plainly guilty of no violation of the statute of prosecution.

The same defective allegation as to the kind of liquor is Apparent in other counts of the information, and consequently it was properly quashed, regardless of other considerations.

2. To such o,ther considerations we now address ourselves.

*105 Objection is taken here, as in tbe lower conrt, to tbe title of tbe act in question. Section 28, article 4, of onr Constitution, with one exception, commands that: "No bill shall contain more than one subject, which shall be clearly expressed in its title;” Section 32, article 4, of the Constitution of 1865, is couched in this-language: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be clearly expressed in the title.” So it seems that section 28 is the m6re stringent of the two provisions.

In State ex rel. v. Mead, 71 Mo. 266 , it was ruled that where the title of an act was, “Concerning popular elections,” and the body of the act provided that vacancies occurring might be filled by gubernatorial appointments, such provision was germane to the subject treated of in the title, and therefore in accord with the constitutional command.

And in State v. Brassfield, 81 Mo. 151 , where the title was, “Crimes and Criminal Procedure,” it was ruled that such a title clearly indicated what the bill contained.

In City of St. Louis v. Weitzel, 130 Mo. 600 , the city charter was modeled after the provisions of section 28, aforesaid; and there, the title of the ordinance discussed was: “An ordinance regulating the keeping, storing and hauling and licensing the removal of garbage, grease, offal and other refuse matter composed of either animal or vegetable matter, ’ ’ and to repeal a prior ordinance on the same subject, “and prescribing penalties for the violation thereof, and fixing a license tax on vehicles used for the removal of garbage,” is not in violation of a charter provision that no bill shall contain more than one subject which shall be clearly expressed in its title, where the ordinance itself relates only to garbage and offal.

And upon this it was ruled that such ordinance did not conflict with the charter provision aforesaid; this court remarking: ‘‘ The evident object of the provision of the organic law relative to the title of an act was to have the title like a guideboard, indicate the general *106 contents of the bill, and contain bnt one general'subject which might be expressed in a few or a greater number-of words. If those words only constitute one general subject; if they do not mislead as to what the bill con-' tains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions. The same line of remark applies to the title of an ordinancce when drawn as above said. But doubtless á much more abbreviated title for the present ordinance would have answered every purpose for including in its body matters gem mane to the general subject of which its various provisions treat.”

In other words, the title of an act, under our Constitution, is to be but a general indicator of the subject treated of in the body of the act; that subject must, indeed, be clearly expressed in the title, but that title need do no more; it need not descend into details, nor make a digest of the statute, of which it forms the head-piece.

In New Jersey, under a similar constitutional provision, an act entitled, “An act relating to the assessment and revision of taxes in cities of this State, ’ ’ was held not to infract the constitutional provision in question notwithstanding the body of the act related to the mode of appointing the members of boards of assessment and revision- in cases of taxation, and that the title' sufficiently expressed the subject. [State ex rel. v. Hammer, 42 N. J. L. 438.]

Treating of this topic, Bishop tersely says: “The title need indicate the subject only in a general way,, without entering into details;' and all auxiliary provisions properly attaching to it, and constituting with it one whole, may be embraced within the enactment.” [Statutory Crimes (2 Ed.), sec. 36a.] .To the like effect is the ruling in Bockstruck’s case, 136 Mo. 335 .

Under these authorities, the title to the act before the court is not obnoxious to objection, albeit capable of much valid abbreviation.

*107 For illustration, in the present instance, abbreviation in the title would not invalidate should it take this form: “An act relating to the manufacture and sale of distilled and vinous liquors.” ' Under such a comprehensive title, the mere matter of detail, such as a license tax, etc., etc., would be entirely germane to that title.

3. But the contention of the State is that the litigated tax is not “a tax on property,” but a tax on the business or occupation of the liquor dealer. If this contention of the State be valid, then it must be so upon the theory that although we have a case where the title of the act, its guidepost, signboard and indicator, speaks of “a State license tax on distilled liquors,” yet the body of the act may validly treat of a tax on the occupation or business of the liquor-dealer. But if this contention is to be held valid, it must be so held alone on the basis that it does not violate the Constitution for the title of an act to announce a tax on property and the body of the act to announce a tax on a business or occupation. But on this hypothesis, what becomes of the constitutional command that the subject of the act ‘ ‘ shall be clearly expressed in its titlel”

4. The act, however, shows not only in its title, its alpha, that it is a tax on property, but when it comes down to its omega, to-wit, its twenty-fifth section, it then and there proclaims the nature of the exigency of the situation, by declaring not that there will be danger to the public morals to let the statute run and reach its customary consummation in a period of ninety days, but'on the contrary thereof asserts that: “There being a deficiency in the revenues of the State, creates an emergency,” etc. In other words, the public morals might “go hang,” just so that the coveted revenues could be promptly secured. And yet this statute, with a property tax at its one end, and an emergency clause “for revenue only,” at its other, is stoutly asserted to be, and designated as, simply a mere police regulation. And in order to countervail and meet, if possible, this palpably incorrect declaration of the.purpose of the act, *108 it is urged that: “The emergency clause is no part of the hill; in fact, the hill might become a law without the emergency clause. Had it been defeated, and failed to receive the necessary two-thirds vote in either branch of the Legislature, it wpuld not have appeared in this case and defendant would not then have had the opportunity to assert that it indicated the full context of the act and was the only meaning that should be given to it.” While it is true that “the emergency clause is no part of the bill; in fact, the bill might become a law without the emergency clause,” yet it is equally true, as stands confessed in the statement above quoted, that it required a two-thirds vote in each branch of the Legislature to carry the emergency clause through; and therefore it is pretty good evidence of the intention of more than a majority of the legislators^ to their reason and purpose for enacting the law. Because, whenever doubts may arise as to legislative action, to-wit, its intention in enacting a law; in order to solve and settle such doubts, resort may be had to, and examination made of, other laws, whether in pari materia or on merely cognate subjects, enacted by the Legislature of the same State, whether at recent or remote periods.

On this subject an eminent text-writer (Sutherland on Stat. Constr., sec. 288), says: “Fbr the purpose of learning the intention, all statutes relating to the same subject are to be compared, and, so far as still in force, brought into harmony, if possible, by interpretation, though they may not refer to each other, even after some of them have expired or been repealed.”

Pursuing the same line of thought and theory, this court has recently determined that in order to discover the intention of the Legislature in enacting a certain law, it was entirely legitimate to search for the intention of the Legislature in enacting such law, among the provisions of a statute approved on the day after such law was enacted, although such subsequently-approved law had been pronounced by this court, months before our recent ruling, as clearly unconstitutional. [Sales v. Barber Asphalt Co., 166 Mo. 671 .]

*109 Now, if laws passed at remote periods, laws in pari materia, or cognate-subject laws, laws that have expired or been repealed, unconstitutional laws, may have the’ shell of tbeir legislative nuts cracked by the hammer of judicial investigation, in order to extract the kernel of their intention, then a fortiori, may a similar result be reached where the shell of the legislative nut has been cracked by the legislators themselves, and the kernel of their intention extracted and spread on the platter of an emergency clause ready for immediate use. We •hold the emergency clause in this instance as conclusive evidence of the legislative purpose, and that purpose, revenue.

5. But there are other considerations which support the just-expressed view that the act is a revenue measure. In the first place, whenever it is ascertained that a license fee is a tax when imposed mainly for the purpose of revenue, as is abundantly established by authority (Dillon’s Munic. Corp., sec. 768; Ward v. Maryland, 12 Wall. 418 ; Cooley’s Const. Lim. pp. 201, 494; Railroad v. Hoboken, 41 N. J. L. 71; Glasgow v. Rowse, 43 Mo. 479 ; Cooley on Taxation, 403, et seq.); it is competent for the courts to make examination and see if, under a mere power to license, the power of taxation for revenue is exercised. [Burlington v. Ins. Co., 31 Iowa 102 ; Muhlenbrinck v. Commissioners, 42 N. J. L. 364; s. c., 36 Am. Rep. 518 .]

In City of St. Louis v. Spiegel, 75 Mo. 145 , the litigated ordinance showed that it was imposed for the purpose of revenue, and upon this, this court said: “In this case it is apparent at first blush that the license fee is imposed for the purpose of revenu'e. That such fee is also imposed for the purpose of regulation does not deprive it of the salient characteristics of a tax.”

So also in City v. Weitzel, supra, we drew the obvious distinction between an exorbitant charge if made by ordinance for affixing garbage plates to each wagon, and an ordinance which authorized only a reasonable charge for so doing; a charge covering the actual expense of each plate; and holding that the latter would be *110 regulation and not taxation, and that the former conld not be nsed as a cloak for the latter, approving the ruling’ in Spiegel’s ease, above cited.

And in Cooley’s Const. Lim. (6 Ed.), p. 242, it is said: “A license is issued under the police power; but the exaction of a license fee with a view to revenue would be the exercise of the power of taxation.” In another work of the same eminent author, it is said: “The right of any sovereignty to look beyond the immediate purpose to the general effect neither is, nor can be, disputed. The government has general authority to raise revenue and to choose the methods of doing so; it has also general authority over the regulation of relative rights, privileges and duties, and there is no rule of reason or policy in the government which can require the Legislature, when making laws with the one object in view, to exclude from its attention the other. Nevertheless, cases of this nature are to be regarded as cases of taxation. Revenue is the primary object, and the regulation results from the methods of apportionment that are resorted to in obtaining the revenue. Only those cases where regulation is the primary object can be specially referred to the police power.” [Cooley on Taxation (2 Ed.), 587.]

Under these authorities, every symptom of the questioned act points towards revenue and not towards regulation; the saloon-keeper under this act sells his beverages as was his wont before, without let or hindrance, except on such terms as the act provides. There are no provisions looking to any inspection of the 'liquors sold across the bar, nor any other safe-guarding of the public morals, but at every turn the act has simply and solely a reverme aspect. And' this, it seems, was the contemporaneous construction placed upon the act by those officials on whom was laid the duty of enforcing, and executing in detail, its provisions. And inasmuch as the State has interposed no denial of what is charged in defendant’s brief to be such construction, it is here inserted: For instance, the Attorney-G-eneral has ' placed his construction on the bill, and given it to the *111 chief executive of the State, in which, among other things, he says: “I do not believe that liquors manufactured in this State and shipped into.other States are Subject to the provisions of this bill. ... It is also my opinion that a fair and reasonable construction of the bill will exclude from its provisions pure alcohol sold in this State for manufacturing and other purposes.” And his views are .further contained in the following published statement of the Governor when he signed the bill : “I have signed the bill, and, as construed by Attorney-General Crow, it is not complicated or ambiguous in its term's and can be readily enforced without vexation or annoyance to the interests affected. The construction of the Attorney-General as to the legal effect of this law will be followed in the enforcement of its provisions by the executive department. The provisions of the law may be concisely stated: It imposes no taxes upon wines, either domestic or foreign, It exempts pure alcohol from taxation. It exempts from taxation all brandy, whiskey, rum and gin sold for consumption in other States. The law imposes a tax of ten cents a gallon upon whiskey, brandy, rum and gin and all other distilled and vinous liquors except such as are exempted as herein set forth sold for use in this State. This, in the opinion of the Attorney-General, is the proper interpretation of the law, and, as I have stated, will be the interpretation followed by the officers .immediately charged with the enforcement of the law. It may be well to make this1 statement in view of the widespread misapprehension of the provisions of the law.”

Even the stamps issued pursuant to the act and signed by the State Treasurer confirm this view, for on them is printed: “Act approved April 17, 1901, taxing distilled liquors ten cents per gallon.”

But aside from the tacit admission of the statement above quoted, courts will take judicial notice, if necessary, of the facts of contemporary history, in order properly to construe a statute. [Lake v. Caddo Parish, 37 La. Ann. 788 .] But such adventitious aids *112 •are, however, quite unnecessary here, since the act is so plain as to be its own interpreter. The familiar rule being that where the Legislature has in its own enactment stated the meaning it intends to convey, such statement is conclusive. [Sutherland’s Stat. Constr., sec. 307, and cas. cit.] Elsewhere, the same learned author treats of the same topic, thus: “Any provision in a statute which declares its meaning or purpose, is authoritative. Whether it relates to the object of a whole act, or of a single section, or of a word, it is a declaration having the force of law. It is binding on the courts, though otherwise they would have understood the language to mean something different.” [Ib. sec. 402.]

6. But pursuing other branches of the subject-matter presented by the record, we come to the ruling made in Welton v. Missouri, 91 U. S. 275 ; where it was settled that a tax, the amount of which is dependent on the amount of the property sold, is in fact, a tax on the property itself. Such being the case, the act under review must be held to- impinge on the provisions of section 3 of article 10 of our Constitution, which declares concerning taxes, that: ‘ ‘ They shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax.”

In City v. Spiegel, supra, where it was held that the license fee was a tax, such tax was held invalid as not conforming to the constitutional provision above quoted, in that it discriminated in favor of meatshops in one portion of the city, and against others in another portion thereof; imposing in the first instance a tax of $25, and-ón the second a tax of $100.

But right here it is proper to remark that there is no discrimination made, or unequal taxation imposed, by the law in question in so far as concerns liquors “manufactured for sale in this State,” and liquors brought or shipped into' this State for sale herein,” because in each instance a tax of ten cents per gallon is imposed on every gallon of liquor whether manufactured in, or brought into, this State, etc. This tax *113 on liquor brought into this State, being of tbe same amount as that required to be placed on liquor manufactured witbin our borders, constitutes what is termed in Hinson v. Lott, 8 Wall. 148 , “a complimentary provision necessary to make the tax equal on all liquors sold in the State. ”

But while this is true, it is equally true that section 24 of the act under review prevents and prohibits a repeal of the provisions of chapter 22, Revised Statutes, 1899, which relates to dramshops. Now, under the provisions of section 3015 of that chapter, express permission is given to wine-growers of this State “to sell wine of their own production in any quantity on their own premises.” Not so, however, with the seller of wine brought or shipped into this State for sale herein, for he has to pay his “special license tax of ten cents for every gallon, ” etc., whether sold on his own premises or elsewhere.

But the above is not the only instance where unjust discrimination occurs in the act under discussion, for while the manufacturer in this State of distilled and vinous liquors, manufactured for sale within our borders, pays his tax, the manufacturer in this State, who manufactures such articles for sale beyond our borders, pays nothing. Now suppose our Legislature should enact a law that a man who raises horses for sale in this State should pay for such right and privilege a tax of ten cents a head for every horse thus raised, but that the man on an adjoining farm who raises horses for sale in other States, should have that right and privilege without paying a cent of tax therefor; would any one contend that such a tax law could stand for a moment when brought for investigation before a court of justice? Will it be said that when the Constitution says, ‘ ‘ Taxes shall be uniform upon the same class of subjects within the territorial limits of the authority leving the tax,” such rule of uniformity holds good as to every sort and species of personal property except whiskey? What authority is there for such assertion? We hold there is none.

*114 And although defendant is not prosecuted as a manufacturer of either distilled or vinous liquors, yet if it is apparent on the face of the act that it was framed and enacted as an entirety, and would not have received the legislative sanction but for the fact that it was intended to operate as a whole, then, this being the case, any party prosecuted under the challenged act may raise the question of the unconstitutionality of a portion of the act in the circumstances already related, and thereby show the invalidity of the whole. We hold the whole act must go by the board in consequence of those circumstances. [State v. Bockstruck, 136 Mo. 353 -4.]

We therefore are of opinion that the act in question, violating, as it does, the rule of uniformity prescribed by the Constitution in the various particulars mentioned, is altogether invalid.

7. And the questioned act not only violates the constitutional rule as to uniformity, but also contravenes the rule prescribed by section 4 of the' same article, which commands that: “All property subject to taxation shall be taxed in proportion to its value.” Of course, this is not done, and can not be done, if some property is taxed, and other of like kind, exempted altogether. Besides, section 6 of the same article specifically describes what property shall be exempt; and section 7 of that article declares: “All laws exempting property from taxation, other than the property above enumerated, shall be void.” Will it be pretended that whiskey manufactured in this State for sale outside of this State is not property ? If property, by what authority does the Legislature, in defiance of the plain language of section 6," add to the list of exemptions in that section contained? The bare fact that section 6 specifically defines what property shall be exempt from taxation, is an affirmative prescription of the Constitution equivalent to a negation or prohibition against any act of the Legislature being enacted which should add'to the list of exempts. And, under repeated rulings of this court, it was beyond the power of the *115 Legislature to add to or swell the list designated in section 6, since the maxim, expressio unius, controls such designation and forbids any augmentation whatever. [Bank v. Graham, 147 Mo. 250 ; Henderson v. Koenig, 168 Mo. 356 ; Ex Parte Arnold, 128 Mo. loc. cit. 264; Marx & Haas Clothing Co. v. Watson, 168 Mo. 133 .]

Not content, however, with the affirmative prescriptions of section 6, above said, the Constitution-framers ordained section 7, aforesaid, which nullifies any law extending or enlarging such exemptions. The ■foregoing remarks will also include alcohol, whether •manufactured within this State for the purpose of exportation or not, or whether such fluid be regarded or not as a “distilled liquor.”

8. But the rule of uniformity established by section 3 of article 10, supra, is eo-extensive with every form and phase of statutory enactment, whereby the exodus of money may be compelled from the pockets of the taxpayer into the hand of the taxgatherer. This rule extends even to police regulations.

Thus, it has been determined in regard to such regulations when pertaining to the liquor traffic, that they should conform to constitutional restrictions on the taxing power in so far as to secure uniformity in their operation upon manufacturers or dealers of the same class. [Black, Intox. Liq., secs. 55 and 109; 17 Am. and Eng. Ency. Law, 223, and cas. cit.] The act under review makes that very unconstitutional discrimination already pointed out, since it coerces payment from some manufacturers while wholly omitting others; and pursues the like discriminatory course towards the ordinary seller of vinous liquors as already pointed out. So that, should the contention of. the State be correct that the act being investigated is only a'“police regulation,” still, even under that view, the act stands condemned for its lack of uniformity.

9. What is known as the “Wilson Law” was approved August 8,1890, Under its terms it is provided: “That all fermented, distilled, or other intoxicating liq- *116 ors or liquids transported into' any State or Territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of snch State or Territory enacted in .the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” This statute removed the difficulty which had formerly prevailed, so far, at least, as liquors were concerned, as to state statutes interfering with importations from foreign countries or other States of the Union, in regard to ‘ ‘ original packages” being non-taxable by state laws or affected by state police regulations, so long as such packages remained in an unbroken state, etc.; and subjected such original packages to the immediate operation of the state laws, so soon as landed in the State into which shipped. This law was held to have this effect and to be constitutionally valid, which effect is mentioned in In re Rahrer, 140 U. S. 545 . Prior to that statute and ruling, however, under the provisions of what is known as the ‘ ‘ commercial clause ’ ’ of the federal Constitution, to-wit, prohibiting any State from laying ‘ ‘ any imposts or duties on imports or exports” (sec. 10, art. 1, U. S. Const.), and under the provisions of section 8 of the same article which gives Congress power “to regulate commerce with foreign nations, and among the several States and with the Indian tribes,” it had frequently been ruled that while the original package which had been imported from a foreign country or another State remained unbroken, it could not be subjected to state legislation looking either to state taxation or police regulation without interfering with the power of Congress to regulate commerce with foreign nations and among the several States; but that after such package had been broken, then it would thereby become merged in the general mass of property, and be subject to the same laws as then .prevailed as to personal property, the pro *117 duct of such state; but that prior to that time such taxation or such regulation which discriminated against such foreign product, and in favor of a home product, could pot be tolerated without usurping the constitutionally granted power of Congress regarding such matters. [Welton v. Missouri, 92 U. S. 275 ; Tiernan v. Rinker, 102 U. S. 123 , and prior and subsequent cases. ]

But the Wilson Law obviated,, as above seen, all trouble on that subject, so far as concerns liquors, and now they are subject to state laws and regulations precisely the same as home products of that character. For ■these reasons it is that no question can possibly arise on this record in regard to the challenged statute contravening the power of Congress to “regulate commerce with foreign nations, and among the several States,” etc.

10. But though this is the case, still the statute under revision requires those who manufacture for sale in this State, liquors, to pay a tax of ten cents a gallon, yet from the manufacturer who manufactures in this State, liquors for sale in other States, no tax is demanded, and in so doing, the act violates that portion of the fourteenth amendment of the Constitution, which guarantees to each citizen of the United States and of each particular State “the equal protection of the law.”

As resulting from these views, the judgment of the trial court should be affirmed.

Burgess, C. J., and Robinson J., concur in toto; Marshall, J., concurs in holding the act unconstitutional, and, hence, concurs in the result.

“I agree to an affirmance of the judgment on the grounds stated in the first and tenth paragraphs of the opinion, and for the further reason that the title of the statute does not conform to the requirements of section 28, article 4, of the State Constitution.” Brace, J.

Gantt, J., concurs in holding the information insufficient whether the act be held constitutional or unconstitutional, and that the act is unconstitutional because the title to the act is misleading, and is not appropriate to an act levying a license tax. He holds, however, that *118 no provision of the Federal Constitution is violated by the act. He concurs in paragraph 9 of the opinion, but not in the argument and' conclusions reached in the other paragraphs of the opinion.

Valliant, J., concurs in the result for the reason only expressed in his separate opinion filed.

SEPARATE OPINION.

VALLIANT, J.

In my opinion, the judgment of the circuit court sustaining the motion to quash the information should be affirmed, but as I do not concur in all that is said in the majority opinion in this case,I deem it proper to state very briefly the ground upon which I concur in the result.

I am of the opinion that the information is sufficient to charge a misdemeanor under the statute, if the statute itself is valid. If the information were not sufficient, then the question as to the validity of the statute would not be before us for decision.

I am also of the opinion that if the passage of the act in question was an exercise of the police power of the State, then it is not rendered invalid because a revenue incidentally results therefrom. But, on the other hand, if the passage of the act was an exercise of the power to tax for revenue, then it must be judged in the light of article 10 of the Constitution.

When the validity of an act of the legislative department of the government is called .in question it is the duty of the court to resolve every reasonable doubt in favor of the act and to pronounce it invalid only when it clearly violates a provision of the Constitution. Taking the act of the General Assembly now in question as a whole, considering both its letter and its spirit, I can make nothing else out of it than a purpose to levy a tax of ten cents a gallon on distilled liquors manufactured in the State for sale here or brought into the State for that purpose.

Section 6 of the act may have been designed to give to it the aspect of police regulation, but if so that aspect *119 appears in that section only, which, is complete in itself. It imposes a special tax of $1.50 for the license.reqnired, which is independent of the tax of ten cents a gallon on the distilled liqnors,. Section 7 forbids the license commissioner to sell stamps to any one not having snch license. The effect of section 6 is to give censorship over the persons to be permitted to engage in the business, and that of section 7 to limit the privilege to such persons, and to that extent the act does provide police regulation, but the regulation thus provided does not extend beyond the issuance of the license. All there is of police regulation in the act begins and ends in those two sections. It has no connection with the tax imposed in the fourth section. It is argued that the imposition of a high license tax is in itself a form of police regulation. That is so when it is imposed on the privilege to do business, but when the law prescribes conditions as prerequisite to the right to do the business, then when those conditions have all been satisfied the property employed in the business is subject to taxation only as required in article 10 of the Constitution.

It is argued that so complete is the police power of the Legislature over the liquor traffic that, for the purpose of restricting • it, even a direct property tax may be levied in excess of the constitutional limit as to other property. But that proposition is not in this case; its discussion will be timely when the Legislature passes a property tax with a view to restricting the traffic; here we have simply a property tax laid only to raise revenue.

The title is, “An act to provide for a state license tax on distilled liquors,” etc. There is an inconsistent association of words in that sentence. A license tax is one thing, a property tax another; the one is a tax on a privilege or occupation, the other a tax on property. We must understand the Legislature to have intended the one or the other, that is, either a license tax or a tax on distilled liquors. There is no such thing as a license tax on distilled liquors. To give effect fo the word “license” in the sentence quoted, we must supply *120 other words to indicate a privilege, and what privilege is intended to he exercised in regard to the distilled liquors, which wonld be to take a great liberty with the act. The only way to render the sentence intelligible is to discard the word “license,” and that we may do because in that connection it is meaningless. With that word discarded we have the title,'‘An act to provide for a state tax on distilled liquors, ... to create the office of special license commissioner and to provide for the appointment thereof by the Governor.”

It is in section 4 of the act that the tax is imposed. The terms used in that section show a design to give it the aspect of a license or privilege tax, and to the extent to which that design is effected it is in conflict with the subject of the act as expressed in the title. The language is: “There shall be paid for the right and privilege to manufacture for sale in this State distilled liquors . . . special license tax of ten cents for every gallon, ’ ’ etc. If the language had been ‘ ‘ There is hereby imposed a tax of ten cents on every gallon of distilled liquors manufactured for sale in this State, ’ ’ etc., the effect would have been exactly the same as that intended by the language used, and it would then have been in harmony with the title of the act. In Brookfield v. Tooey, 141 Mo. 619 , this court held a tax that was in form and by name a license tax to be a tax on property. That was not a liquor-traffic license and, therefore, all that is said in that case may not be applicable here, but it is to this extent applicable, viz;: the court is not bound by the mere form of expression used in the act if the purpose is otherwise manifest; is not bound to adjudge it to be a license tax merely because it is so named, if on the whole act it clearly appears to be a property tax, which in my judgment this is. As a property tax it is indefensible under the Constitution, and for that reason the judgment of the circuit court was right and should be affirmed.