(dissenting):
Chapter 561 of the Laws of 1880, amends the charter of the city of Brooklyn. The part material to this controversy empowers the city “to regulate and license * * * vehicles of every description used on the public streets in the conduct and carrying on of any business * * * established and transacted in said city, provided that the license fee charged for any one vehicle shall not exceed three dollars per year.”
The complaint alleges that the defendant carries on business as a r livery-stable keeper, and lets single and double carriages to be used in the public streets of Brooklyn, and therefore that he is liable to exactions called license fees fixed by the common council pursuant to the act quoted.
The complaint was demurred to, the demurrer overruled, and this appeal is from the judgment in plaintiff’s favor.
The defendant urges that what this act calls a license fee is in reality a tax.
It is further argued that a tax cannot be imposed in the guise of a license fee under the police power “ to regulate and license,” and lastly that the tax is unconstitutional. '
*516If we were disposed to take a narrow view of this controversy,, it would suffice to say that it does not affirmatively appear on the-face of the complaint that the amount of the fees in question go beyond police expenses, and must result in revenue.
We presume, however, that this is a tax imposed for revenue-under guise of license fees. That it is the imposition of a duty on sums of money for the purpose of revenue. And still we are constrained to decide that there is no constitutional restraint upon the-power of the legislature; that the legislature has implied this intent to confer power upon the city of Brooklyn to tax under guise of licensing, and that the defendant is within the scope of the power conferred. Judge Dillon in his valuable work on municipal corporations, after making reference to adjudicated cases on the subject, appends this note: “ These cases show some diversity of opinion as to the right to tax particular employments as distinguished from property, but the correct view, it is submitted!, is this : Unless specially restrained by the constitution, the legislature may provide for the taxing of any occupation or trade, and may confer tliis power upon municipal corporations. But such taxes are apt to-be inequitable, and the principle not free from danger of great abuseITenee ordinances of this character ought not to be sustained, unless the authority be expressly or otherwise unequivocally conferred.” (Dillon on Mun. Corp. [2d ed.], note, p. 392.)
It was proposed in the constitutional convention of 1846 to make taxation uniform. (Debates Convention of 1846 [Atlas ed.], 104, 289.) ' But nothing came of the attempt, and to-day our constitution places no limit upon the power of the legislature to tax. (The People v. The Mayor of Brooklyn, 4 N. Y., 427.)
It results that the legislature of this State has power to tax vehicles, or any employment in which'they are used.
This view in no way conflicts with The Mayor v. Second Avenue Railroad Company (32 N. Y., 274). In that case the tax was imposed under a general power to “ regulate and license.” It was rightly decided this did not authorize a tax for revenue. (Cincinnati v. Bryson, 15 Ohio, 625.) These decisions went upon the theory that the legislature had not authorized a tax. No question was made of its power.
The power of the legislature to tax any trade or employment *517being perfect, the remaining question relates to the manner of its exercise, and in this case whether the tax can be covered with the guise of a license fee.
We think the legislature intended to empower the city of Brooklyn to collect revenue, by taxation of the several trades enumerated in the act. It certainly knew that each vehicle might be obliged to pay three dollars, for it fixed that amount as the limit. If such an exaction be a tax, it had in mind a tax. Other parts of this act, especially the exaction from each railroad car, beyond question, was intended to furnish revenue, and the doctrine noneitur a sooiis has especial application here.
“ The power to license and regulate particular branches of business or matters is usually a police power; but when license fees or exactions are plainly imposed for the sole or main purpose of revenue, they are in effect taxes.”
“ Ordinarily the mere power to license or to subject to police regulations does not give the power to tax distinctly for revenue purposes, hut it may give the power when such appears from the nature of the subject-matter, or upon the whole charter or enactment to have been the legislative intent, but not otherwise.” (Dillon on Mun. Corp., § 609.)
We think it was the legislative intent to impose a sum not to exceed three dollars upon every vehicle used in business on the streets of Brooklyn.
The inevitable result would be revenue, and we are constrained to hold that revenue was the legislative intent.
It may be true that the defendant is not within the class of hack-men and cabmen. These, especially for purposes of license and police regulation, are defined to be those who occupy stands in the public street and solicit custom. But the defendant does use vehicles “ on the public streets in the conduct and carrying on of his business.” All such are within the express terms of the act.
The judgment should be affirmed, without costs.
Judgment reversed, without costs.