(dissenting.) — The authority of the legislature to tax occupations has been maintained in repeated judicial decisions, both state and federal, and by almost universal practice. The right to engage in any useful and necessary pursuit is above all human constitutions and laws, which are instituted especially for its protection. This duty of protection involves authority in the government to regulate the engaging in, and carrying on, any business, when necessary; and to prohibit altogether such as prove to be hurtful. Of course, the exercise of this power must be by “due course of law,” or according to the “ law of the land.”
The practice of law is, by the general concurrence of governments, deemed such a one as is necessary to be regulated by the grant of a license, or privilege, to carry it on. When such license is once granted, it cannot be withdrawn without cause given by the party receiving it. This license is not the grant of any exclusive privilege, for such would be in violation of our State Constitution. It is the means adopted by the State to protect society generally, which is deemed unnecessary in respect to such pursuits as agriculture, mechanics, and the like. Therefore, the lawyer cannot claim any exemption from taxation of his occupation, on account of his license, not enjoyed by those above mentioned.
But a license, under the revenue law, to carry on a business, not being the subject of the mala prohibita, is purely a tax, the failure to pay which is no more than the failure to pay a debt. There is no indication of any attempt to regulate the business, or of any necessity for so doing. No more is required of the citizen than simply to pay the price affixed. If the license is only a tax, its payment may be enforced by a sale of the deinquent’s property. A judgmei^g the nature of a pecuniary *117penalty may be recovered against Mm. But be cannot be imprisoned, under our Constitution, forbidding imprisonment for debt.
Blackstone, speaking of tbe effect of imposts out of proportion to the value of the article, says it gives rise to smuggling, “ and its natural and most reasonable punishment, viz., confiscation of the commodity, is, in such cases, quite ineffectual,” on account of the lucrative employment. “ Recourse must, therefore, be had to extraordinary punishments to prevent it, perhaps even to capital ones, which destroys all proportion of punishment, and puts murderers upon an equal footing with such as are really guilty of no natural, but merely a positive of-fence.” 4 Bl. Com. 318.
If smuggling, which is an active evasion of revenue laws, is properly punishable only by confiscation of the goods, because personal punishment would confound it with murder and other atrocious crimes, what shall be said of imprisoning the person because of the non-payment, from inability to do so, of a valuation, assessment, or due placed on him, for the support of the government. Cooley says, “ the (revenue) licenses give no authority, and are mere receipts for taxes.” Cooley’s Const. Lim. pp. 584, 496 ; License Cases, 5 How. 632; Meeker v. Van Rensselear, 15 Wend. 397. There is no element of offence, or misdemeanor, in the mere omission or failure to pay a tax to the ■government. Evil intention is an essential ingredient of crime. It does not appear in simple delinquency of tax-paying. The government wants the person’s money, not his liberty. The Constitution says there shall be no imprisonment for debt.
I except from this reasoning those pursuits which, for substantial reasons, public sentiment consents to regard as of evil tendency, such as selling intoxicating liquors, and the like.