state itself, or of the political divisions within the same, or which creates a monopoly.1 b. DELEGATION OF THE POWER.-In the absence of constitutional restrictions, the legislative power to tax occupations and privileges may be delegated to political subdivisions of the state, to be exercised within their corporate limits.2 The power does not exist in a municipal corporation, unless conferred by the legislature. And the power, when so conferred, must be exercised within the scope of the language used, which is not to be extended by construction, but which is to be construed strictly.4 A statute requiring a license from any person engaged in hiring laborers in the state, for employment beyond its limits,does not discriminate against nonresidents, nor is it otherwise unconstitutional. Shepperd v. Sumter County, 59 Ga. 535. 1. In Logan v. Pyne, 43 Iowa 524, it was held that a city charter granting the right to "exercise and enjoy all rights, immunities, powers and privileges appertaining to a municipal corporation," and to "license, tax and regulate hackney carriages, omnibuses," etc., does not authorize the city authorities to grant to one person the sole and exclusive right to run omnibuses in the city. 2. Butler's Appeal, 73 Pa. St. 448; Durach's Appeal, 62 Pa. St. 491; Tonti v. Allegheny County, 10 Pittsb. L. J. 241; Ex p. Montgomery, 64 Ala. 463; Montgomery v. Shoemaker, 51 Ala. 114; San Jose v. San Jose R. Co., 53 Cal. 475; Exp. Hurl, 49 Cal. 557; Sacramento v. Crocker, 16 Cal. 120; Wiggins v. Chicago, 68 Ill. 372; Fretwell v. Troy, 18 Kan. 271; Wiley v. Owens, 39 Ind. 429; Hodgson v. New Orleans, 21 La. Ann. 301; Simmons v. State, 12 Mo. 268; 49 Am Dec. 131; St. Louis v. Laughlin, 49 Mo. 559; American Union Express Co. v. St. Joseph, 66 Mo. 675; 27 Am Rep. 382; Mason v. Lancaster, 4 Bush (Ky.) 406; Rome v. McWilliams, 52 Ga. 251; Gilman v. Sheboygan, 2 Black (U. S.) 510. The municipality need not tax pursuits and occupations in the same manner as that adopted by the legislature in regard to state taxation. Nashville v. Althrop, 5 Coldw. (Tenn.) 554. An express provision that the legislature may tax business, etc., does not preclude the legislature from delegating the power. Huck v. Chicago, etc., R. Co., 86 Ill. 352; Wiggins v. Chicago, 68 Ill. 372. In Texas, under the constitution of 1876, no municipal corporation has power to tax an occupation to an extent beyond one half the amount levied by the state. See Exp. Gregory, 1 Tex. App. 753; Ex p. Ślaren, 3 Tex. App. 662. 3. Fowle v. Alexandria, 3 Pet. (U. S.) 398; New Iberia v. Migues, 32 La. Ann. 923; Mays v. Cincinnati, Ohio St. 268; Cincinnati v. Bryson, 15 Ohio 625; 45 Am. Dec. 593; Chicago v. Bartree, 100 Ill. 61; Bennett v. Birmingham, 31 Pa. St. 15; Baker v. State, 30 Fla. 41. A city charter providing that the council may raise annually by taxes and assessments such sums of money as it shall deem necessary to defray expenses, in such manner as it shall deem expedient, has been held to authorize the city to impose a tax upon lawyers. Ould v. Richmond, 23 Ġratt. (Va.) 464; 14 Am. Rep. 139. In Home Ins. Co. v. Augusta, 50 Ga. 530, the general power given to the city by its charter to make assessments upon the inhabitants, was held to authorize the imposition of taxes upon occupations, etc. But in Latta v. Williams, 87 N. Car. 126, it was held that the power to levy and collect the taxes on all subjects of state taxation, not to exceed one dollar on the poll and thirty-three and one third cents on real estate and personal property, etc., did not confer upon the city, power to tax occupations. County Taxes. In the absence of statutory provision, counties have no power to levy privilege and occupation taxes similar to those provided for under state authority. Gibson County v. Pullman Southern Car Co., 42 Fed. Rep. 572. 4. Joyce v. East St. Louis, 77 III. 156; Latta. Williams, 87 N. Car. 126; Kniper v. Louisville, 7 Bush (Ky.) 599; St. Louis v. Laughlin, 49 Mo. Under the power to license, regulate, or restrain, a municipal corporation cannot impose taxes for purposes of revenue.1 A municipality may tax the occupations of persons whose business is licensed by the state; 2 but while this is so, the municipality cannot require such persons to procure a license from it as a condition precedent to pursuing the occupation.3 Nor can a munic 559; Nashville v. Althrop, 5 Coldw. cago Packing, etc., Co. v. Chicago, 88 (Tenn.) 554. Ill. 221; 30 Am. Rep. 545. Authority to license, tax, etc., wagons and other vehicles, etc., and to "prescribe the weight of loads to be carried and the rates of carriage," has been held to be applicable only to such vehicles in respect of which it is proper and customary with municipal authorities to prescribe "rates of carriage." Joyce v. East St. Louis, 77 Ill. 156. And authority to tax carts, etc., using the streets of a town, does not authorize the imposition of a tax on wagons owned by non-residents of the town not habitually using the streets. Bennett v. Birmingham, 31 Pa. St. 15. 1. Burlington v. Putnam Ins. Co., 31 Iowa 102; Burlington v. Bumgardner, 42 Iowa 673; Chicago v. Bartree, 100 Ill. 61; New York v. Second Ave. R. Co., 32 N. Y. 261; Collins v. Louisville, 2 B. Mon. (Ky.) 134; Cincinnati t. Bryson, 15 Ohio 625; 45 Am. Dec. 593; Mestayer v. Corrige, 38 La. Ann. 707. The words "to license" may imply the power to tax, when such is the manifest intention, but taken disconnected and alone, they will not generally confer that authority. St. Louis v. Boatmen's Ins. Co., 47 Mo. 150. The power to tax tippling houses must be derived from the direct tax power conferred in the charter, and cannot be derived from the power to regulate and restrain them. Columbia v. Beasly, 1 Humph. (Tenn.) 240. In Essex County v. Barber, 7 N. J. L. 64, the power to license inns and taverns was held not to authorize the borough to tax inn-keepers and receive fees from them for their licenses. Nor, on the other hand, does the power to tax confer authority to license; the objects attained by the exercise of the respective powers are not the same. Burlington v. Bumgardner, 42 Iowa 674. The general power, however, to tax, restrain, and suppress, embraces the power to license. Mt. Carmel v. Wabash County, 50 Ill. 69. And the power to license may be authorized by the grant of the power to regulate. Chi In San Jose . San Jose, etc., R. Co., 53 Cal. 475, it was said that where power is conferred on a municipality to license and regulate occupations, the whole charter and all general legislation of the state pertaining to the subject, must be consulted, in order to determine whether the power to license and regulate includes the power to tax such occupations for revenue purposes. 2. Iberia v. Chiapella, 30 La. Ann. 1143; State v. Traders' Bank, 41 La. Ann. 329; Chicago Packing, etc., Co. v. Chicago, 88 Ill. 221; 30 Am. Rep. 545; Wright v. Atlanta, 54 Ga. 645; Mason v. Lancaster, 4 Bush (Ky.) 406; State v. Spencer, 49 Mo. 342; Sights v. Yarnalls, 12 Gratt. (Va.) 292; Ould v. Richmond, 23 Gratt. (Va.) 464; 14 Am. Rep. 139; Ex p. Schmidt, 2 Tex. App. 196. A city may be empowered to tax lottery offices, although licensed by the legislature, provided no bonus was given for the privilege. Wendover v. Lexington, 15 B. Mon. (Ky.) 258. The liability may be both to the state and to the city. State v. Traders' Bank, 41 La. Ann. 329. A county may levy a tax upon a license to brokers, granted by the state. State v. Spencer, 49 Mo. 342. An occupation may be subjected to the taxes imposed by the state, parish and corporation. Iberia v. Chiapella, 30 La. Ann. 1143. 3. Home Ins. Co. v. Augusta, 50 Ga. 530; Baldwin County v. Milledgeville, 42 Ga. 325; Wright v. Atlanta, 54 Ga. 645; Williams v. Garignes, 30 La. Ann. 1094; Napier v. Hodges, 31 Tex. 287. A physician licensed by the authority of the state to practice his profession cannot be required by a municipal corporation to take out a license before he can practice in the city. Savannah v. Charlton, 36 Ga. 460. But he may be required to pay a tax upon the exercise of the privilege granted by the license. Home Ins. Co. v. Augusta, 50 Ga. 530. Delegation of the Power to License.It is held that where the corporate authorities are empowered to grant a particular license, the jurisdiction of the ipality to which the power has been delegated redelegate the power to its officers.1 2. Taxable Subjects-What Usually Taxed-a. IN GENERAL.— Subject to constitutional restrictions, all occupations and callings may be subjected to taxation2 in the discretion of the legislature, which may select some for this purpose, and exempt others.3 Such occupations as are taxed as privileges are those other than the ordinary and every-day employments of life, or such as for the exercise of which a franchise is required.4 Exemption from these taxes cannot be claimed on the ground that the property employed in the business or occupation is state over the subject is withdrawn to that extent. Floyd v. Eatonton, 14 Ga. 354. See also Cuthbert v. Conly, 32 Ga. 214; although the state is not thereby prevented from imposing a special tax thereon. Decker v. McGowan, 59 Ga. 805. Contra: But in Simpson v. Savage, 1 Mo. 359, the contrary seems to have been held; and an auctioneer, who had paid a license fee to the corporation was compelled to obtain one from the state as well; and this view was adopted in Ex p. Liebenhauer, 14 Nev. 371. 1. East St. Louis v. Wehrung, 50 Ill. 28; Johnston v. Macon, 62 Ga. 645; Darling v. St. Paul, 19 Minn. 389; Brooklyn 7. Breslin, 57 N. Y. 591. The power conferred on the city council cannot be delegated to the mayor of the city by ordinance. Kinmundy v. Mahan, 72 Ill. 462. But in Decorah v. Dunstan, 38 Iowa 96, an ordinance authorizing the may or to fix the amount of the license was held to be valid. But see East St. Louis v. Wehrung, 50 Ill. 28, holding that a corporation is not warranted in delegating any discretionary authority to others. 2. Sacramento v. California Stage Co., 12 Cal. 134; Sacramento v. Crocker, 16 Cal. 120; Ex p. Hurl, 49 Cal. 557; Connecticut Mut. L. Ins. Co. v. Com., 133 Mass. 161; Portland Bank v. Althrop, 12 Mass. 252; Com. v. People's Sav. Bank, 5 Allen (Mass.) 428; Biddle v. Com., 13 S. & R. (Pa.)405; State v. North, 27 Mo. 464; Com. v. Moore, 25 Gratt. (Va.) 951; Nathan v. Louisiana, 8 How. (U.S.) 73; Bartemeyer v. Iowa, 18 Wall. (U. S.) 129; Savannah v. Charlton, 36 Ga. 460; Charleston v. Goldsmith, 12 Rich. (S. Car.) 470; Sinclair v. State, 69 N. Car. 47; State v. Columbia, 6 S. Car. 1; Charleston v. Oliver, 16 S. Car. 47; State v. Hayne, 4 S. Car. 403; License Tax Cases, 5 Wall. (U. S.) 472; Lanier v. Macon, 59 Ga. 187; Rome v. McWilliams, 52 Ga. 271. 3. People v. Coleman, 4 Cal. 46; 60 Am. Dec. 581; Connecticut Mut. L. Ins. Co. v. Com., 133 Mass. 161; Butler's Appeal, 73 Pa. St. 448; Durach's Appeal, 62 Pa. St. 491; New Orleans v. Mülé, 38 La. Ann. 826; Singer Mfg. Co. v. Wright, 33 Fed. Rep. 121. A license may be required for selling in particular places, even though revenue, as well as local policy, may be one of the objects of the requisition. Mork v. Com., 6 Bush (Ky.) 397. The legislature may impose a single tax upon a particular class of occupations and declare it to be in lieu of all other taxes, whatsoever. Vicksburg Bank v. Worrell, 67 Miss. 47. But where the legislature has imposed a license tax upon persons pursuing a certain business, it cannot, in the absence of any valuable consideration, exempt any particular person or persous pursuing that calling, from the payment of such tax. New Orleans v. Louisiana Sav. Bank, 31 La. Ann. 637. The question whether certain individuals fall within the class designated by the statute providing for the tax, is one of fact. Bohler v. Schneider, 49 Ga. 195; Decker v. McGowan, 59 Ga. 805. 4. Munn v. People, 69 Ill. So; Wiggins Ferry Co. v. St. Louis, 102 Ill. 5€0; Chilvers v. People, 11 Mich. 43; Drysdale v. Badat, 45 Miss. 445; Illinois Mut. F. Ins. Co. v. Peoria, 29 Ill. 180. In Tennessee, the exercise of “privileges," as that term is used in the constitution, is defined to be the exercise of an occupation or business which requires a license from some proper authority designated by a general law, and which is not open to all, or to any one, without such license. Columbia v. Guest, 3 Head (Tenn.) 414; Cate v. State, 3 Sneed (Tenn.) 121; Jenkins v. exempt,1 or has been already taxed; 2 or that the person or corporation pursuing the occupation pays an income tax.3 Certain pursuits and privileges are expressly exempted by constitutional provisions in several of the states. An enumeration, however, of some as subjects of taxation, is not a prohibition upon the power of the legislature to tax others.5 The statutes imposing these taxes must be construed strictly; 6 Ewin, 8 Heisk. (Tenn.) 456; State v. Crawford, 2 Head (Tenn.) 462; Pullman Southern Car Co. v. Nolan, 22 Fed. Rep. 276. The permission or license to retail goods is such a privilege, and subject to taxation, Mays v. Erwin, 8 Humph. (Tenn.) 290; or the business of a wholesale grocer, under a license. French v. Baker, 4 Sneed (Tenn.) 193. Any avocation may be made a privilege by the legislature by the requirement of a license tax for its exercise. Mabry v. Tarver, 1 Humph. (Tenn.) 94. Positive prohibition without license is not necessary. Dun v. Cullen, 13 Lea (Tenn.) 202. The license creating the privilege may be acquired by the payment of the privilege tax merely. State v. Schlier, 3 Heisk. (Tenn.) 281. In Arkansas, under a provision authorizing the imposition of taxes on privileges, those occupations only were held subject to taxation which were recognized as privileges at common law. Washington v. State, 13 Ark. 752. But in Baker v. State, 44 Ark. 134, it was held that the general assembly was not restrained from levying a tax upon the franchise of a corporation. And see Straub v. Gordon, 27 Ark. 625. A corporation, however, cannot create a privilege for the purpose of taxing it. Nashville v. Althrop, 5 Coldw. (Tenn.) 554. So, a city ordinance imposing a tax for keeping a livery stable, could not be sustained, the legislature not having made such an occupation a privilege. Columbia 7. Guest, 3 Head (Tenn.) 413. 1. Philadelphia Contributorship v. Com., 98 Pa. St. 48; Monroe Sav. Bank v. Rochester, 37 N. Y. 365; Provident Inst. v. Massachusetts, 6 Wall. (U. S.) 611. So a savings institution may be taxed, although its capital is invested in federal securities. Society for Savings v. Coite, 6 Wall. (U. S.) 594. Police Regulations. An exemption of a corporation from taxation, will not exempt it from license taxes imposed as reasonable police regulations. Frankford, etc., Pass. R. Co. v. Phila delphia, 58 Pa. St. 119; 98 Am. Dec. 242; Johnson v. Philadelphia, 60 Pa. St. 445. 2. Macon v. Macon Sav. Bank, 60 Ga. 133; Johnston v. Macon, 62 Ga. 645; St. Louis v. Green, 7 Mo. App. 468; Albertson v. Wallace, 81 N. Car. 479; Western Union Tel. Co. v. State, 55 Tex. 314; 40 Am. Rep. 99; State v. Stephens, 4 Tex. 137; Frommer v. Richmond, 31 Gratt. (Va.) 646; Wool man v. State, 2 Swan (Tenn.) 353; Lewellen v. Lockharts, 21 Gratt. (Va.) 570; Western Union Tel. Co. v. State, 9 Baxt. (Tenn.) 509; New Orleans v. People's Ins. Co., 27 La. Ann. 519; New Orleans v. Globe Mut. L. Ins. Co., 27 La. Ann. 656. 3. Pullman Palace Car Co. v. State, 64 Tex. 274; 53 Am. Rep. 758. 4. Constitutional Exemptions. In the constitution of Texas, power is given to the general assembly to tax all persons pursuing any occupation, etc., provided that the term "occupation, shall not be construed as including pursuits either agricultural or mechanical." This proviso is held to exempt from occupation taxes, agricultural and mechanical occupations. Higgins v. Ricker, 47 Tex. 393. In Ex p. Butin, 28 Tex. App. 304, it was held that a statute imposing an occupation tax upon persons or firms who peddle out cooking-stoves or ranges, does not conflict with the above provision. In Louisiana, there is a similar exemption. Const. Art. 206. But under it, a master builder or contractor who employs assistants may be compelled to pay a license tax. The exemption is held to include those persons only who are engaged in the actual manual labor. See Theobalds v. Conner, 42 La. Ann. 787. 5. State v. Lancaster County, 4 Neb. 537; Pullen v. Wake County, 66 N. Car. 364. 6. Sewall v. Jones, 9 Pick. (Mass.) 412; Savannah v. Hartridge, 8 Ga. 23; Joyce v. East St. Louis, 77 Ill. 156; Bangle v. Holden, 52 Miss. 804; St. only such occupations or privileges as are described clearly can be taxed.1 Where it is the occupation which is taxed, a single act or transaction is not such an engaging in it as will subject the person thus acting to the tax; 2 and one who acts for himself in his own private affairs is not subject to a tax imposed upon an occupation which consists of acts or transactions done for or on behalf of another.3 b. PARTICULAR PURSUITS (1) Professional Occupations.These taxes are imposed sometimes upon attorneys at law for the privilege of practising, even though they have obtained licenses to practise. So the practice of medicine has been subjected to Louis v. Laughlin, 49 Mo. 559; State v. Field, 49 Mo. 270; State v. Hall, 73 N. Car. 252; State v. Yearby, 82 N. Car. 561; Mays v. Cincinnati, Ohio St. 268; Pleuler v. State, 11 Neb. 547; Higgins v. Rinker, 47 Tex. 393. In Com. v. Campbell, 33 Pa. St. 380, it was held that an act requiring all merchants and dealers to take out an annual license, does not embrace manufacturers and mechanics, unless they keep a store or warehouse separate from the factory for the sale of their wares. If a billiard table be kept as an occupation, such keeping may be taxed under a provision imposing taxes upon those pursuing any occupation, trade, or profession; but trade or profession imports a profitable pursuit, and if the table is kept for amusement and not for profit, it is not subject to taxation. The question as to the purpose for which the table was kept is one of fact for the jury. Tarde v. Benseman, 31 Tex. 277. In New Orleans v. Clark, 15 La. Ann. 614, it was held that an ordinance imposing a certain tax on each printing office doing job work, does not apply exclusively to printing offices publishing a newspaper, and to job work conjunctively, but to any printing office doing such work. 1. New Iberia v. Mingues, 32 La. Ann. 923; Plaquemine v. Roth, 29 La. Ann. 261; Exp. Ah Pong, 19 Cal. 106; State v. Bowers, 14 Ind. 195; Sewall v. Jones, 9 Pick. (Mass.) 412; Society, etc. v. Diers, 10 Abb. Pr. N. S. (Ń. Y.) 216; Norris v. Com., 27 Pa. St. 494; Rowland v. Kleber, 1 Pittsb. (Pa) 68; Barton v. Morris, 10 Phila. (Pa.) 360. And see Com. v. Thayer. 5 Met. (Mass.) 246; State v. Walker, 28 La. Ann. 636. 2. Wooddy v. Com., 29 Gratt. (Va.) 837; State v. Whittaker, 33 Mo. 457; State v. Cox, 32 Mo. 566. Renting a single room for the purpose of dramatic exhibition, does not constitute carrying on a theatre business. Gillman v. State, 55 Ala. 248. A traveling peddler may make a valid sale and delivery of goods without a license, when not engaged in the business of peddling. Brett v. Marston, 45 Me. 401. The rule is different, where the imposition is on the performance of the thing or the transaction of the business and not the occupation. It is not necessary to establish that the defendant assume to act as a tavern keeper in order to recover a penalty for selling liquor without a license. Smith v. Adrian, 1 Mich. 495. 3. Joyce v. East St. Louis, 77 Ill. 156. By ordering sewing machines at the request of persons wishing to buy them, receiving them when sent in pursuance of the order, and delivering them to the purchaser, a merchant does not become a dealer in them or an agent to sell them, within the provisions of a law imposing a tax upon dealers and agents and persons engaged in selling sewing machines. Weaver v. State, 89 Ga. 639. So a farmer purchasing stock to consume the products of his farm, though with the intention of selling it again, is not subject to the tax on cattle broken. U. S. v. Kenton, 2 Bond (U. S.) 97 But one owning a cotton pickery cannot avoid the payment of a license fee imposed upon it on the ground that he did not use it except for the purpose of picking and cleaning his own cotton, which he had purchased to sell again; that in such case he is as much liable as they who use it for picking and cleaning cotton for other persons for a commission. State v. Hemard, 23 La. Ann. 263. 4. Cousins v. State, 50 Ala. 113; 20 Am. Rep. 290; State v. King, 21 La. |