delivered the following dissenting opinion:
The opinion of Mr. Justice Harris on rehearing, affirming the Circnit Court in sustaining the demurrer to the complaint, is based upon the views he expressed in Portland v. Portland Ry., L. & P. Co. An analysis of this latter opinion shows that it depends very largely, if not exclusively, upon the new matter in the answer. In the present case the issue of law is waged upon a demurrer to the complaint. That pleading contains no intimation of the various defenses set up in the other case. The only feature in common between these two cases is the applicability of subdivision 21 of Section 73 o'f the Portland charter, stating the powers of the council and reading in part thus:
“To grant licenses with the object of raising revenue or of regulation or both for any and all lawful acts, things or purposes and to fix by ordinance the amount to be paid therefor, and to provide for the revoking of the same. No license shall be granted to continue for a longer period than one year from the date thereof.”
The opinion seems strictly to construe the term “license,” and to teach that the only way in which the city could exercise the authority conferred by the subdivision quoted would be to say that it shall be unlawful for any person or corporation to sell gas in the City of Portland without paying a license of 3 per cent of the gross receipts of the business, and to impose a *210penalty for the violation of such ordinance. The Laundry Case (D. C.), 22 Fed. 701; Reser v. Umatilla County, 48 Or. 326 (86 Pac. 595, 120 Am. St. Rep. 815), and Home Ins. Co. v. Augusta, 50 Ga. 530, are cited in support of this doctrine. In the first of these cases Judge Deady held that the power to “regulate and control washhouses and public laundries” justified a reasonable license fee to cover the expense of issuing a permit, but did not authorize any excess of that amounting to a revenue or tax. This construction of that charter provision is much shaken, if not entirely overthrown, .by the decision of this court in Abraham v. Roseburg, 55 Or. 359 (105 Pac. 401, Ann. Cas. 1912A, 597), where it was decided that “to license and regulate all such callings, trades and employments as the public good may require to be licensed and regulated” was broad enough to sanction a revenue measure framed under such a charter provision. Besides, Judge Deady put his decision of the Laundry Case on the ground that:
“A power to license should be used only for regulation unless there is something in the language of the grant or the circumstances of the case clearly indicating that it was also intended to be used for the purpose of revenue.”
Taking the language of his opinion thus quoted as the reason for his judgment, we have ample ground to distinguish the instant case from the question under his consideration. Since the present Portland charter gives authority to impose licenses “with the object of raising revenue or of regulation or both,” the Laundry Casé is no obstacle to the purpose of the ordinance in question, for the intention to provide revenue by a license system is plainly expressed in the excerpt quoted above. The present case would be like Reser *211v. Umatilla County, if the statute had attempted to charge dealers in gas a certain amount on every cubic foot of that article which they sold. The Beser Case declared that a specific sum charged upon each sheep driven into Oregon from another state for pasturage here was a tax, and hence void for want of uniformity on an -ad valorem basis. This is not applicable to the present contention for that reason. The Home Insurance Case says:
“A license is a right granted by some competent authority to do an act which without such authority would be illegal.”
This is sound lexicology, but it is curious to observe that in that very case the count refused to enjoin the collection of what was called “a license tax,” an exaction practically the same as the city would enforce in the present instance.
To place the decision on a strict technical definition of the word “license,” without regard to the wider scope of the charter provision, is in my judgment to sacrifice substance for form. The declared object of the provision, among others, is that of raising revenue. It may be coupled with regulation, or not, in the discretion of the council. The power may be applied to lawful acts, things, or purposes. These are lawful to begin with, and it is not necessary, for revenue purposes, at least, to declare them unlawful as a means of collecting taxes. In construing this statute we must look at the substance as well as the letter. As said bv Mr. Justice Holmes in Galveston etc. Ry. Co. v. Texas, 210 U. S. 217 (52 L. Ed. 1031, 28 Sup. Ct. Rep. 638):
“Neither the state courts nor the legislatures, by giving the tax a particular name, or by the use of some *212form of words, can take away our duty to consider its nature and effect.”
True, it is that, if the city chose to do so, it could grant a permit to a person or corporation to sell gas within the municipal boundaries, providing a certain fee was paid for the privilege, and could enforce the same by some form of punishment, including the revocation of the license. Even then payment of the fine would not liquidate the tax imposed. But these powers and the manner of their exercise are permissive. Considered as a revenue measure, the subdivision mentioned establishes an occupation tax. Invested as it is with authority to perform all public services and with all governmental powers, the City of Portland could provide any other lawful procedure for enforcing the payment of the impost upon the occupation of the defendant. As well it might, it has chosen a means of collection by an action against the delinquent who fails to pay the license charge prescribed by the ordinance. The same result is attained as though it had chosen to issue a paper to be styled “a license to sell gas,” and provided for a fine or other lawful punishment for doing business without sucha document. The legislation devised by the city to enforce the occupation tax under the name of license is within the reason and spirit of subdivision 21 of Section 73. The question of the tax being’ exorbitant and confiscatory is not before us in this suit. We are not at liberty to divine what defenses the defendant may be able to present, nor to suppose they will be the same as those urged in the other case. The complaint states a cause of action and is not amenable to the general demurrer.
For these reasons, I am unable to assent to the conclusion reached by my learned Brother.
Mr. Chief Justice Moore concurs in this dissent.