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Argument for Petitioner.

196 C.S.


v. New York, 21 Wall. 196; Louisiana v. New Orleans, 109 U. S. 285; Freeland v. Williams, 131 U. S. 417; United States v. Tynen, 11 Wall. 88; Norris v. Crocker, 13 How. 429; Maryland v. B. &0. R. R. Co., 3 How. 534.

The ordinance was obviously enacted solely for raising revenue. It was not a licensing ordinance. Sonora v. Curtin, 137 California, 583; Cooley on Taxation, 573; Mayor v. Charlton, 36 Georgia, 460. A license confers a privilege, and makes the doing of something legal, which, if done without it, would be illegal. Insurance Co. v. Augusta, 50 Georgia, 530; Burch v. Savannah, 42 Georgia, 596; Chilvers v. People, 11 Michigan, 43; Robinson v. Mayor, 1 Humph. 156; Ould v. Richmond, 23 Gratt. 464; Reed v. Beall, 42 Mississippi, 472.

The effect of the ordinance is not otherwise than if it had provided that all sheep owned by those engaged in this business, should be taxed ten cents a head; that upon the payment of the tax the owner should be entitled to a tax receipt evidencing such payment, and that if it were not paid, it should become a debt due the county to be collected by a civil suit. Calling the tax receipt a “license" and the tax a “license tax" does not confine the lawful authority to transact this business to those who have paid the tax and procured the "license" any more than an ordinary tax on property creates a right or authority to own property. A license is a police regulation controlling the exercise of a profession, business or occupation. Cache County v. Jensen, 61 Pac. Rep. 303; Mayor v. Second Ave. R.R. Co., 32 N. Y. 261; Mays v. Cincinnati, 1 Ohio St. 268; Am. Fertilizing Co. v. Board of Agriculture, 43 Fed. Rep. 609; Flanigan v. Plainfield, 44 N. J. L. 118; Cooley on Taxation, 597; Merced County v. Helm, 102 California, 159, 163; Kiowa County v. Dunn, 40 Pac. Rep. 357. As to power of county to enact revenue and license ordinances, see Political Code, $ 3366; California Statutes, 1900, passed March 23, 1901, c. 209, p. 635; Ex parte Pfirrmann, 134 California, 143 ; Sonora v. Curtin, 137 California, 583, and cases cited.

Irrespective of the decisions of the courts of other States and of their rulings on the effect of similar statutes, the de

196 U. S.

Argument for Respondents.

cisions of the Supreme Court of California in the construction of a statute of that State must be read into that statute and conclusively control the Federal courts in their determination of its object and effect. Brown v. New Jersey, 175 U. S. 172; Noble v. Mitchell, 164 U. S. 367; Illinois Cent. R. Co. v. Illinois, 163 U. S. 142; N. Y., L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431; Leeper v. Texas, 139 U. S. 462; M., K. & T. Ry. Co. v. McCann, 174 U. S. 580; Cravens v. N. Y. Life Ins. Co., 178 U.S. 389; Morley v. Lake Shore & M. S. Ry. Co., 146 U. S. 162; Lapp v. Ritter, 88 Fed. Rep. 108; Southern Ry. Co. v. North Carolina Corp. Comm., 99 Fed. Rep. 102; O'Brien v. Wheelock, 95 Fed. Rep. 883, 905.

Mr. Frank R. Wehe, with whom Mr. W. J. Redding and Mr. C. N. Post were on the brief, for respondent in No. 121; Mr. U.S. Webb and Mr. L. N. Peter for respondent in No. 122, involving a similar ordinance, submitted:

The ordinance was passed in the exercise of police power and for the purpose of regulation, and was not, therefore, repealed. When petitioner commenced to do business in the county he became indebted to respondent in the amount due for the license. The right to the sum due vested in the county; hence no repeal could affect it. All constitutional questions raised have been decided adversely to petitioner by the Supreme Court of the State of California. The ordinance was in the exercise of police power and was not repealed. California Const., Art. XI, $ 11; County Government Act, $ 25, subd. 25, Stat. 1897, p. 465; In re Guerro, 69 California, 90; Ex parte Mount, 66 California, 448; Ex parte Mirande, 73 California, 374; El Dorado County v. Meiss, 100 California, 270; Inyo County v. Erro, 119 California, 120; Ex parte Ah Toy, 57 California, 92; Ex parte Pfirrmann, 134 California, 147; Ex parte Roach, 104 California, 276; Los Angeles County v. Eikenberry, 131 California, 461; Cooley on Taxation, 599; 1 Tiede

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1 Wheeler v. Plumas County, post, p. 562.

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Argument for Respondents.

196 U.S.

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man State & Federal Control, 483. Ordinary expenses are
raised by taxes but in licensed businesses such as sheep raising
there are extra hazards involving extra governmental expenses
which must be met by police regulation. St. Paul v. Coulter,
12 Minnesota, 16; Postal Tel. Cable Co. v. Charleston, 153
U.S. 691; Western Union Tel. Co. v. New Hope, 187 U. S. 419;
Atl. & Pac. Tel. Co. v. Philadelphia, 190 U. S. 160; Philadelphia
v. Atl. & Pac. Tel. Co., 89 Fed. Rep. 460; Chilvers v. People,
11 Michigan, 43; Fayetteville v. Carter, 52 Arkansas, 301;
Lumber Co. v. Arkadelphia, 56 Arkansas, 370; Ash v. People,
11 Michigan, 347; Littlefield v. State, 42 Nebraska, 223; Jack-
sonville v. Ledwith, 26 Florida, 163; Tomilson v. Indianapolis,
114 Indiana, 142; White v. Redmond, 43 Minnesota, 250;
Marmet v. State, 45 Ohio St. 63; Ferry Company v. East St.
Louis, 107 U. S. 365. Petitioner refused to try the question of
the reasonableness of the fee. He declined to answer and make
the issue, and, in the absence of a trial, it must appear from the
face of the ordinance that the fee is so excessive that the court
can infer as matter of law that the purpose of the ordinance
was to raise revenue and not to reimburse the county for the
cost of regulation of the business licensed. Glenn v. Mayor,
5 Hill & J. 424; Merced County v. Fleming, 111 California, 46,
51; Brooklyn v. Breslin, 57 N. Y. 591, 596; Price v. People, 193
Illinois, 114; Grand Rapids v. Brandy, 105 Michigan, 671;
Atkins v. Phillips, 26 Florida, 281; Uttumwa v. Zekind, 95
Iowa, 622; Burlington v. Unterkircher, 99 Iowa, 401; Vansant
v. Harlem Stage Co., 59 Maryland, 335; People v. Russell, 49
Michigan, 633.

The legislature of California has expressly authorized the county to license and fix the rate of license tax.

As to reasonableness of fee, see Duluth v. Krupp, 46 Minnesota, 435; Sifert v. Johnson, 65 Pac. Rep. 710; 2 Tiedeman, State & Federal Control, 838; Lawton v. Steele, 152 U. S. 135; Sutherland, $335.

The moment the license was prescribed by the county the transaction of the business was forbidden unless the license

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was taken out, hence the issuance of the license permits the person to transact the business. Ex parte Christensen, 85 California, 210.

The constitutional questions involved have been decided against the petitioner by the Supreme Court of California. A license fee is not a tax. Santa Barbara v. Stearns, 51 California, 499; State v. Cassidy, 22 Minnesota, 318; Ex parte Robinson, 12 Missouri, 263.

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MR. JUSTICE MCKENNA delivered the opinion of the court.

This action was brought by respondent against petitioner in the Superior Court of the County of Sierra, State of California, and removed on his motion to the United States Circuit Court.

The action was brought to recover the amount of license ordained under an ordinance passed May 31, 1900, by the supervisors of the respondent county, under what is known as “The County Government Act." California Stat. 1897, c. CCLXXVII. The act gave power to the boards of supervisors of counties as follows:

“To license for regulation and revenue, all and every kind of business not prohibited by law, and transacted and carried on in such county, and all shows, exhibitions, and lawful games carried on therein, to fix the rates of license tax upon the same, and to provide for the collection of the same, by suit or otherwise." Sec. 25, subd. 25.

In pursuance of the power conferred the ordinance in controversy was enacted, section 1 of which is as follows:

“Each and every person, copartnership, firm or corporation engaged in the business of raising, grazing, herding or pasturing sheep in the county of Sierra, State of California, must annually procure a license therefor from the license collector, and must pay therefor the sum of ten (10) cents for each sheep cr lamb owned by, in the possession of, or under the control of such person, copartnership, firm or corporation, and used in such business in said county.”

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Application for a license is required to be made by affidavit, stating the number of sheep owned by and in possession of the applicant. “The license tax,” it is provided, “shall be deemed a debt due to the county,” which the district attorney of the county is directed to sue for; and a judgment is authorized. In case of recovery by the county, $50 damages and costs must be added to the judgment. All money collected for license, less a fee of ten per cent for collection, “shall be paid over to the county treasurer, as other moneys are, and be placed to the credit of the general funds of the county." Years within the meaning of the ordinance shall commence on the first day of January and end on the thirty-first day of December.

The petitioner between the first of May and the twentyfifth of June, 1900, engaged in the business described in the ordinance, and had in his possession and under his control 25,000 sheep. He failed to apply for a license, and became, it is alleged, indebted to the county for the sum of $2,500, and became further indebted to the sum of $50 by way of damages for his neglect. Payment of both sums was demanded.

Petitioner demurred to the complaint, which, being overruled, and he having declined to answer, judgment was taken against him. It was affirmed by the Circuit Court of Appeals. 58 C. C. A. 340.

The ordinance was passed on the thirty-first day of May, 1900, and suit was brought on the twenty-fifth day of June of that year. On March 23, 1901, by an amendment to the Political Code of the State of California, section 3366, Stat. Cal. 1900, 1901, p. 635, the authority of the board of supervisors to license for revenue was repealed. The repealing provision is as follows:

“Boards of supervisors of the counties of the State, and the legislative bodies of the incorporated cities and towns therein, shall, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise, have power to license all and every kind of business not prohibited by law, and transacted and carried on within the limits of their

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