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respective jurisdictions, 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."
It is contended that the ordinance imposing the license was a revenue measure, not a police regulation, and that the law under which it was enacted, having been repealed, the suit abated. And, it is also contended, that there was no power to pass the ordinance. The latter contention is certainly untenable. Ex parte Mirande, 73 California, 365. The former requires some discussion. There are two parts to it—the character of the ordinance, as being for revenue or regulation, and the effect of the repeal of the ordinance. Under the authority of the California cases, it must be regarded as a revenue measure. 72 California, 387; 73 California, 365; 119 California, 119; Town of Santa Monica v. Guidinger, 137 California, 658; City of Sonora v. Curtin, 137 California, 583.
In Merced County v. Helm, 102 California, 159, the court said, distinguishing between the taxing power and the police power, that the latter “is exercised in the enforcement of a penalty prescribed for a non-compliance with the law, or for the doing of some prohibited act.” It was provided by the ordinance passed on that the license should be a “debt,” payable in advance and to be collected, in case of non-payment by suit. The absence of regulatory provisions has also been held to be an element in determining the character of an ordinance. Town of Santa Monica v. Guidinger, 70 Pac. Rep. 732. The ordinance in controversy in the case at bar was, at least, assumed by the Circuit Court of Appeals to be a revenue measure. This being its character, what was the effect of its repeal? It withdraws the power of collecting the tax, petitioner contends. The Court of Appeals did not take this view. The court regarded the right of the county as vesting at the date of the imposition of the license, and that the liability of petitioner was so far contractual as to be unaffected by the repeal of the statute giving power to the county to enact the
ordinance. We are unable to assent to this view. It is disputable under the authorities, and it is opposed to the decisions of the Supreme Court of the State of California.
The general rule is that powers derived wholly from a statute are extinguished by its repeal. Sutherland on Statutory Construction, $ 165. And it follows that no proceedings can be pursued under the repealed statute, though begun before the repeal, unless such proceedings be authorized under a special clause in the repealing act. 9 Bacon's Abridgement, 226. This doctrine is oftenest illustrated in the repeal of penal provisions of statutes. It has, however, been applied by the Supreme Court of the State of California to the repeal of the power of counties to enact ordinances for revenue.
Town of Santa Monica v. Guidinger, 137 California, 658, was an action for the recovery of $50 for license imposed under an ordinance of the town “for the licensing of business carried on in the town
for purposes of regulation and revenue.” The defendant was charged with two license taxes for $25 each for the year following the date of the ordinance, that being the annual date established by the ordinance, " for each person acting as agent or solicitor for any laundry whose plant or works are located without the corporate limits of the town." It was held that the license tax was repealed, and the right of action therefore extinguished, by section 3366 of the Political Code, added thereto by the act of March 23, 1901. This is the same section relied upon in the case at bar. The court said it was clear that the license tax in question was imposed for the purpose of raising revenue, and that the case was therefore substantially similar to that of City of Sonora v. Curtin, 137 California, 583. The ordinance involved in the latter case contained penal provisions, but they manifestly did not determine the decision. The court observed:
“The right is given by the ordinance to bring a civil suit to recover the amount so made a license tax. This civil remedy was created by the ordinance, and the remedy is repealed by the repeal of the ordinance as to revenue.
“In speaking of the rule as to enforcements of rights under repealed statutes, Endlich on the Interpretation of Statutes (sec. 480), says: “The same rule applies to rights and remedies founded solely upon statute, and to suits pending to enforce such remedies. If at the time the statute is repealed, the remedy has not been perfected or the right has not become, vested, but still remains executory, they are gone.'”
It is clear that the decision was not based alone on the penal character of the ordinance but on the broader principle that the power to enact it having been taken away the power to enforce it was also taken away. The cases cited by the court illustrate this. Among others, Napa State Hospital v. Flaherty, 134 California, 315, was cited. In that case the right given by a statute of the State to maintain an action against the father of an insane adult son was held to be taken away by the repeal of the statute conferring the right.
But if the ordinance passed on in City of Sonora v. Curtin was penal, the ordinance involved in the case at bar may be so characterized within the limits of the principle we are now discussing, as applied by the Supreme Court of the State of California. What it might be under broader considerations see Huntington v. Attrill, 146 l'. S. 657.
That there is a conflict between the Supreme Court of the State and the Circuit Court of Appeals respondent does not deny. Counsel, however, say the conflict "does not arise out of a construction of a statute of the State,” but (we quote the language of counsel)" as to the effect of the new statute, con
, strued by each court to be a repeal of a prior statute, upon the rights of the litigant granted under the prior statute, the Circuit Court of Appeals first assuming, but not deciding, that the ordinance may have been a revenue measure, and the Supreme Court of California deciding that in its cases the ordinance was a revenue measure. This question did not involve the construction of the statute; it was merely the determination of a question that depended upon the principle of general law and not upon a positive statute of the State.” The counsel further
say: "In such cases the courts of the United States are not required to follow the decision of state courts." The distinction made by counsel we cannot adopt. Whether a statute of a State is or is not a revenue measure certainly depends upon the construction of that statute. Besides, if in any case we should lean to an agreement with the state court, this is such a case. There is no Federal right involved. The question is one strictly of the state law; and the power of one of the municipalities of the State under that law. If we should yield to the contention of counsel we should give greater power to one of the municipalities of the State than the law of the State, as construed by the Supreme Court of the State, would give it. We should enforce against petitioner a tax which the Supreme Court of the State, construing a state law, would not enforce. The result of the contention indicates its error. Judgment reversed and cause remanded for further proceedings
in conformity with this opinion.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH
No. 122. Submitted January 12, 1905.-Decided February 20, 1905.
Decided on authority of Flanigan v. Sierra County, ante, p. 553.
The facts are stated in the opinion.
Mr. C. C. Cole, Mr. Joseph C. Campbell and Mr. Thomas H. Breeze for petitioners.'
Mr. U. S. Webb and Mr. L. N. Peter for respondent.'
Submitted simultaneously with Flanigan v. Sierra County. For abstract of arguments see ante, p. 553.
MR. JUSTICE MCKENNA delivered the opinion of the court.
This case was submitted with Flanigan v. Sierra County. It is also an action for the recovery of a sum of $2,100, alleged to be due for license tax, and $50 damages. The taxes were imposed under an ordinance of the county of Plumas, substantially similar to the ordinance passed on in Flanigan v. Sierra County. The action was brought in the Superior Court of Plumas County and removed, upon the petition of the petitioners herein, to the Circuit Court for the Northern District of California. In that court, petitioners demurred to the complaint, which, being overruled, and they declining to answer, judgment was taken against them by default. It was affirmed by the Circuit Court of Appeals.
The questions are identical with those passed on in Flanigan v. Sierra County, and on the authority of that case the Judgment is reversed and cause remanded for further proceed
McCAFFREY , MANOGUE.
APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF
No. 131. Argued January 17, 18, 1905.—Decided February 20, 1905.
The policy of the law in favor of the heir yields to the intention of the testator
if clearly expressed or manifested. The rule of law that a devise of lands without words of limitation or description gives a life estate only, does not apply, and devises will be held to be of the fee, where it is plain that the testator's intention was to dispose of his whole estate equally between his heirs, and there is no residuary clause indicating that he intended passing less than all of his estate, and all of his heirs at law are devisees under the will.