I agree with my associates that the city is vested with authority to regulate the business of selling beer, but I cannot agree that section 11, chapter 204, S. L. 1933, (Sp. Sess.), (House Bill No. 28), operates to prohibit the city from charging a fee for a permit for the operation of such business within the city limits so long as the fee for such permit does not exceed the actual cost of issuing the license, inspecting and regulating the business.
Ordinance No. 4485 of the city of Oklahoma City prohibits the sale or distribution of any nonintoxicating alcoholic beverages within the city of Oklahoma City without a license issued by the city clerk; provides for a regulation and inspection fee of $15 per year for each, place of business where such alcoholic beverages are sold or distributed for consumption on the promises, and a fee of $10 per year for each place of business where said beverages are sold in the original container and not for consumption on the premises; it further prohibits the adding of alcohol to any nonintoxicating alcoholic beverages for the purpose of raising the alcoholic content above 3.2 per centum; prohibits the sale of beverages containing more than 3.2 per centum of alcohol; prohibits the permission of any violation of the prohibitory law on the premises of the licensee; prohibits the sale of any nonintoxicating alcoholic beverages to a minor under the age of 21 years; prohibits the placing of any colored glass, curtain, screens, or partitions on outside windows or doors on any place where such beverages are sold or distributed so as to exclude the public gaze therefrom; prohibits the use of the word "saloon" in any sign or advertisement concerning the sale of such beverage; requires that the premises shall be kept in a clean and sanitary condition and provides for the sterilization of all receptacles used for the serving of such beverages; provides that all persons handling such beverages shall procure a health certificate from a licensed physician at least twice a year showing that they are free from infectious or contagious diseases; provides that any officer acting in pursuance of the authority granted by the ordinance shall have authority to enter and inspect any place where such beverages are sold or distributed, and further provides that an inspection shall be made at least every three months or as often as necessary. A violation of any of the provisions of the ordinance is made a criminal offense, punishable by a fine not to exceed $19 and $1 costs. Ordinance No. 4493, amending section 6 of Ordinance No. 4485, supra, prohibits any violation of the city ordinances or the laws of the state relating to gambling on the premises of any licensee, and prohibits the licensee from *Page 27 permitting any intoxicated person to loiter about the premises, or from permitting persons who have congregated on the premises from using violent, abusive, vile or profane language in such manner as to disturb the quietude of the neighborhood. It further provides that upon request of a duly authorized inspector each licensee must furnish a sample of any nonintoxicating alcoholic beverage for the purpose of analysis and examination by the city chemist to determine its alcoholic content.
We have set out at length the provisions of the ordinance for the purpose of showing that the position of defendants herein that the ordinance is a police regulation enacted in the interest of the public peace, order, health, morals, safety, and general welfare of the people, is well taken. The authority of the city to enact ordinances of this nature is discussed in the case of In re Simmons, 4 Okla. Cr. 662, 112 P. 951, wherein it is said:
"Under the constitutional provision (section 3, art. 18, Const.) providing that 'any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state,' a city adopting a charter is accorded full power of local self-government, and, as such municipal corporation under its charter, it has power to enact, ordain, and enforce ordinances for the purpose of protecting the public peace, order, health, morals and safety of the inhabitants, even though general statutes exist relating to the same subjects.
"The adoption of the prohibition ordinance by the people, and the enactment of the prohibition law, does not prevent cities of the first class from enacting ordinances prohibiting the sale of intoxicating liquor within the limits of such cities.
"The same act committed by a person may constitute a crime against the state law and a different petty offense against the city ordinance, and, the two offenses being different, the offender may be proceeded against under either the city ordinance or the state law, or both."
See, also, Ex parte Simmons, 5 Okla. Cr. 399, 115 P. 380; Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537; Ex parte Johnson,20 Okla. Cr. 66, 201 P. 533; Cumpton v. City of Muskogee,23 Okla. Cr. 412, 225 P. 562.
The only limitation on the ordinances of the city are that they must run in the same direction and not contrary to a state law. This is illustrated by the following quotation from the case of Ex parte Johnson, supra:
"Where the Legislature has made or may by general law make a specific police regulation, that fact of itself will not prevent the lawmaking power of a city from making further regulations on the same subject, not inconsistent with general laws. A municipality may move in the same direction as the Legislature, but not contrary to nor in an opposite direction."
In the case of Mitchell v. City of Lawton, 124 Okla. 60,253 P. 999, it is said:
"A city ordinance which has for its purpose the prevention of an offense, or protection of the public morals, safety, or welfare, or prescribes rules for carrying on an occupation or business in order to prevent injury to the public, is, in its nature, a police regulation as distinguished from a revenue measure."
Evidence was offered on behalf of plaintiff to the effect that the approximate cost of the issuance of a license was 64 cents each; however, no evidence was offered as to the cost of regulation and inspection. Plaintiff contends that there would be no additional cost or expense for that purpose, since inspection and regulation were already provided by other city ordinances which would not be increased under the ordinance involved herein. The defendants introduced evidence showing that there would be approximately $5,340 in fees paid to the city under the provisions of the ordinance and the expense of issuing the licenses, inspecting and regulating the business would be approximately $7,515.60. The record is clear that the enforcement of the ordinance would create additional expense for inspection and regulation. The city chemist testified that it would be necessary to hire an additional assistant in his office for the purpose of making analyses of the beverages sold in Oklahoma City to determine their alcoholic content and it would be necessary to provide additional equipment for the same purpose. It was also shown that it would be necessary to assign three additional policemen to the liquor and vice squad to take care of the arrests necessarily made around the places where alcoholic beverages were sold. In the light of all the evidence it is evident that the fee charged by the city was not in excess of the actual cost of issuing the licenses and regulating and inspecting the businesses. Since the authority of the city to regulate the business of selling and distributing beer is admitted by counsel, conceded by my associates, and established by the authorities *Page 28 hereinabove quoted, I shall express my views relating to the authority of the city to exact a fee commensurate with the actual cost of such regulation. As to this point, we are not without valuable precedent.
In 1915 the Legislature enacted chapter 173, Session Laws 1915, which in part provides:
"Sec. 3. * * * The registration fees imposed by this article upon motor vehicles, other than those of manufacturers and dealers, shall be in lieu of all taxes, general or local, to which motor vehicles may be subject as personal property under the laws of this state * * *
"Section 8. Subject to the express provisions of this article, local authorities shall have no power to pass, enforce or maintain ally ordinance, rule or regulation requiring from any owner to whom this article is applicable any tax, fee, license or permit for the free use of the public highways, or excluding or prohibiting any motor vehicle registered in compliance with this article from the free use of the public highways or the accessories used thereon, and no ordinance, rule or regulation in any way contrary to or inconsistent with the provisions of this article, now in force or hereafter enacted, shall have any force or effect. * * *"
Thereafter the city of Muskogee enacted an ordinance fixing an occupation tax of $25 per month upon jitney busses. The ordinance was declared invalid in the case of City of Muskogee v. Wilkins, 73 Okla. 192, 175 P. 497, for the reason that it was a revenue measure and not a license fee collected on account of necessary police regulation and prohibited by the above act. Therein it is said:
"It will be observed that the ordinance in question provides that the mere payment of the monthly tax entitles the one sought to be charged, as of right, to pursue the occupation of operating a jitney bus as defined in such ordinance. This court in Ex parte Mayes [64 Okla. 260, 167 749] supra, quotes with approval from Royall v. State of Virginia, 116 U.S. 572, 6 Sup. Ct. 510, 29 L.Ed. 735, as follows:
" 'That the party complying with the statutory conditions is entitled as of right to the license is conclusive that the payment is a tax laid for revenue, and not an exaction for purposes of regulation. Mayor, etc, v. Second Ave. R. R. Co.,32 N.Y. 261 State v. Hoboken, 33 N.J.L. 280; 2 Dill., Mun. Corp. 766, c. 19, sec. 768. The occupation, which is the subject of the license, is lawful in itself and is only prohibited for the purpose of the license; that is to say, prohibited in order to compel the taking out a license, and a license is required only as a convenient method of assessing and collecting the tax. Cooley, Tax. 407. Such a license fee was held to be a tax by this court in the cases of Brown v. Maryland, 12 Wheat. (25 U.S.) 419, 6 L.Ed. 677, Ward v. Maryland, 12 Wall. (79 U.S.) 418, 20 L.Ed. 449, and Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347.'
"Applying the foregoing doctrine to the particular provision of the ordinance under consideration, it would seem that the purported pecuniary imposition is an ineffectual attempt to tax for revenue, and not an exaction for the purposes of regulation. If the actual motive of the city authorities in passing and attempting to enforce such ordinance was to exercise the municipal police power for the purpose of regulation, yet it would appear from the face of the ordinance that the fee exacted is excessively disproportionate to a sum necessary to cover the expense to the city in the way of licensing, inspecting, and supervising the vehicles and occupation contemplated by the ordinance. This also specifically appears by the evidence and is in effect found by the court."
The city of Pawhuska also enacted an ordinance fixing a tax on taxicabs at $25 per annum. The ordinance recited that the tax was for the purpose of raising revenue. This ordinance was declared invalid in the case of Ex parte Mayes, 64 Okla. 260,167 P. 749, as being in conflict with the act of the Legislature above referred to. The opinion concludes as follow:
"The purpose of the Highway Act, or at least one purpose, is to take from the municipal authorities the power to levy and collect a tax for the free use of the public highways, and that whether the tax be levied upon the vehicle, upon the owner, or upon the occupation in which he is engaged. The power toregulate and control, though in the form of a tax, and wherethe revenue to be collected is incidental to the regulation, isrecognized as an existing right of the local authorities. This,we think, is clear. As the ordinance under which petitioner was authorized to engage in the business of transporting passengers for hire, and the statute under which the power to impose such taxes is delegated, does not contemplate an exercise of the police power and of the rights of taxation incidental thereto, but a tax upon the business for revenue only, it follows that the judgment of conviction for violation of the ordinance is a nullity, and that the petitioner should be discharged, which is accordingly ordered."
Thus in each of the cases it is shown that the ordinances sought to levy a tax for the purposes of revenue only, and the authority of the local authorities to exact a revenue incidental to a lawful regulation under *Page 29 the police power is clearly recognized and carefully pointed out.
The city of Oklahoma City enacted an ordinance relating to motor vehicles for hire providing that all such vehicles should be registered with the city clerk and application be filed for a license and the license so received from the city clerk should be carried by the driver and displayed to any patron or public officer at any time; further providing that the vehicle should be subject to inspection and should not be operated for public use if found to be defective or unsafe; providing that if such vehicle be used in violation of the laws of the United States or the state or the city the certificate should be revoked; providing that certain parties should be disqualified as drivers of such vehicles; providing that a report be made of any change in drivers; providing for the giving of a bond on condition that the owner will respond in damages for any injury occasioned by his negligence; providing for a fee of $25 for the first car and $20 for each additional car, which fee should cover the cost of registration, supervision, and regulation. In the case of Ex parte Holt, 74 Okla. 226, 178 P. 260, the ordinance was held to be valid and not in conflict with the state laws hereinabove referred to. Syllabus paragraphs 1 and 2 of the opinion in said case are as follows:
" 'Under section 8, article 4, c. 173, Session Acts 1915, local authorities, such as cities, may "regulate vehicles offered to the public for hire," and in doing so may impose a license or fee when the purpose thereof is an exaction of regulation.' Ex parte Mayes 64 Okla. 260, 167 P. 749.
"The character of a municipal ordinance passed and sought to be enforced ostensibly for the purpose of regulation may be primarily determined from all of its provisions; and where no attempt appears thereby to raise revenue, as such, the only pecuniary charge imposed being designed merely to cover the expense of regulating an occupation which it is deemed desirous, or necessary to subject to inspection and supervision in the interest of public welfare and safety, such charge will not be treated as a tax for revenue."
We quote further from the body of the opinion:
"Obviously, by reason of the legislative enactment, supra, there was withdrawn from municipalities generally the power to pass, enforce or maintain any ordinance, rule or regulation imposing a pecuniary charge in the nature of a tax, license, or permit for the free use of the public highways by motor vehicles which have been registered in compliance therewith. (Ex parte Shaw, 53 Okla. 654, 157 P. 900; Ex parte Phillips,64 Okla. 276, 167 P. 221; and Ex parte Mayes, 64 Okla. 260,167 P. 749); but by virtue of the first proviso in section 8, the office of which is at least to restrict the general language preceding it (Brewer v. Rust, 20 Okla. 776, 95 P. 233), 'the powers given to local authorities to regulate vehicles offered to the public for hire * * * remain in full force and effect.'
"Thus it appears that where a motor vehicle has been registered conformably to the statute, a city may under no circumstances impose a pecuniary charge either upon the vehicle or its owner for the use of the public highways, but whenever such vehicle is offered to the public for hire, however strictly the foregoing proviso may be construed, the intent of the Legislature to reserve to and authorize the exercise by municipalities of the powers elsewhere given to local authorities to regulate vehicles so offered is manifest.
"The power of regulation granted to the city in the instant case clearly carried with it the authority to use all lawful means to accomplish the purpose of the grant.
" 'As an incident to this form of police regulation, it is reasonable and just that the expenses be paid by those who make them necessary, and it is not unusual to require a fee from every person who seeks to engage in an occupation to perform an act of this character as a condition to the issuance of a license or permit to engage in the occupation or perform the act.' 19 R. C. L. 951.
"In Ex parte Mayes, supra, it is held:
" 'Under section 8, article 4, c. 173, Session Acts 1915, local authorities, such as cities, may "regulate vehicles offered to the public for hire," and in doing so may impose a license or fee when the purpose thereof is an exaction of regulation. But when the primary object of the local legislation is to afford a revenue, the ordinance pursuant to which the same is levied is invalid, and cannot be enforced.'
"While the rule is well settled that unless authority to tax be granted, pecuniary impositions by municipalities for revenue purposes under the guise of the police power cannot be made, yet the doctrine is almost universally recognized that although revenue may incidentally result from the undisputed exercise of police power by a municipality acting within the scope of its authority to regulate occupations or the use of property, this result does not divest the regulation of its police character and render it an attempted exercise of the taxing power." *Page 30
Thus it is clearly pointed out that there is a definite distinction between a tax, license, or fee for the purpose of revenue and a tax, license, or fee for the purpose of enforcing a police regulation.
The majority opinion does not recognize this distinction, and I am unable to reconcile the rule therein announced with the doctrine of Ex parte Holt, supra. This distinction is carefully observed through all of the authorities.
In the case of Solberg v. Davenport (Iowa) 232 N.W. 477, it is said:
"Among the many powers possessed by the state there are two inherent powers with which we are concerned — one, known as the power of taxation; the other, as the police power. The police power in matters of this kind usually exercised by way of a license. State v, Herod, 29 Iowa 123; City of Des Moines v. Manhattan Oil Co., 103 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A. L. R. 1322; City of Des Moines v. Bolton,128 Iowa 108, 102 N.W. 1045, 5 Ann. Cas. 906; State of Iowa v. Manhattan Oil Co., 199 Iowa 1213, 203 N.W. 301. * * *
"It is the general rule that, where the charge for the license is imposed in the exercise of the police power, the amount which may be exacted may include and must be limited and measured by the necessary or probable expense of issuing the license and such inspection, regulation, and supervision as may be provided for in the act and may be lawful and necessary. State v. Manhattan Oil Co., 199 Iowa 1213, 203 N.W. 301; State v. Osborne, 171 Iowa 678, 154 N.W. 294, Ann. Cas. 1917E, 497; Keckevoet v. City of Dubuque, 158 Iowa 631, 138 N.W. 540.
"That there is a very definite distinction existing between a license fee when imposed under the police power and a tax imposed for revenue under the power of taxation is evidenced by the following cases: State v. Herod, 29 Iowa 123; City of Des Moines v. Bolton, 128 Iowa 108, 102 N.W. 1045, 5 Ann, Cas. 906 City of Ottumwa v. Zekind, 95 Iowa 622, 64 N.W. 646. 29 L. R. A. 734, 58 Am. St. Rep. 447; 37 C. J. 169, and notes."
In the case of Blue Coach Lines, Inc., v. Lewis (Cooee.)294 S.W. 1080, it is said:
"Authority under police power to regulate occupations tending to injure public carries with it power to collect fees, which, in the aggregate, are sufficient to defray administrative expenses, and to also repair any special injuries attributable to the occupation regulated or to the means and instrumentalities employed by it."
In the case of Vassan, Treasurer of Schoolcraft County, v. Minneapolis, St. P. S. M. Ry. Co. (Mich.) 212 N.W. 78, it is said:
"License fees exacted under police power of state for purpose of regulation do not become tax unless they are out of proportion to reasonable cost of regulation."
In the case of Duff v. Garden City (Kan.) 251 P. 1091, it is said:
" 'Regulation charge' is one exacted for privilege or as condition precedent to carrying on business, and is exercise of police power, while 'occupation tax' is imposed under power of taxation."
See, also, Portland Van Storage Co. v. Hoss, Secretary of State (Ore.) 9 P.2d 122; Pacific Tel. Tel. Co. v. City of Everett (Wash.) 166 P. 650.
I am of the opinion that the Legislature in using the language set forth in section 11 of the act, supra, did not intend to curtail or abridge the right of cities, granted by general laws, to require the applicants for permit to conduct places of business to which the act relates to pay the necessary cost incurred in the issuance of said permit and in the reasonable and proper inspection and proper regulation thereof.
I therefore respectfully dissent.