dissenting:
I can not concur in this decision. The power to impose this burden upon this ferry company is claimed by the city under a clause in its charter, granted in 1869, wherein power is conferred upon the city, in general terms, “to regulate, tax and license ferry boats.”
I concur in the view that this ordinance is not an exercise of the power to “tax” ferry boats. The ordinance imposing this burden does not profess to impose a tax. A tax on “ferry boats” is a tax on property, and as such, under the constitution of 1818, as well as that of 1870, can only be imposed by valuation. Nor does this ’profess to be a tax upon the business of running or keeping a ferry. The decision in this case does not place the validity of the ordinance upon the power to tax. Obviously the passage of this ordinance was not an exercise of the power to regulate ferry boats. There is not a word in the ordinance relating to the mode of operating the ferry boats in question; nothing relating to the material of which they shall consist, or the mode of their construction; or relating to the character or skill of those actually running these boats; or relating to the care to be exercised in receiving or discharge of passengers or goods, or . the manner of landing; or relating to any matter which can properly be classed under the exercise of police powers or the power to regulate. This ordinance is simply an attempt to exercise the power to “license, ” pure and simple. This power, where there is no attempt to regulate or to tax, can only be exercised in a case where the authority imposing the burden has the rightful power to prohibit the thing done, or, in its discretion, to permit it to be done. This doctrine is taught in The People v. Thurber, 13 Ill. 544; Insurance Co. v. Peoria, 29 id. 180; East St. Louis v. Wehrung, 46 id. 392.; Ducat v. Chicago, 48 id. 172; Walker v. Springfield, 94 id. 372. In The People v. Thurber, it is said of such a burden: “This is not a tax upon property, but is a burden * * * for the right of exercising a franchise or privilege which the legislature would have the right to withhold or inhibit altogether. ” This language is quoted with approbation in Walker v. Springfield, decided in 1880. The word “tax, ” as used in the constitution of Michigan, received the same interpretation, and was held not to embrace a license fee. (Chilvers v. The People, 11 Mich. 43.) It is there declared of a license fee, that “it is not a tax, ” in the sense of that word in their constitution and statutes, and that “it is a price paid for a franchise * * * vested in the individual. ”
The mere power to license and exact a license fee as-a source of revenue, is, and from its very nature should always be, confined to a permission granted to exercise some privilege or franchise, or to do some thing which may not lawfully be done without permission, or which the power exacting the same might lawfully prohibit altogether. Bemember, as was said in People v. Thurber, supra, a license fee proper,' exacted merely for the purposes of revenue, “is a burden” imposed as payment “for the right of exercising a franchise or privilege which the legislature would have the right to withhold or inhibit altogether; ” and that, as was said in the Michigan ease, “it is a price paid for a franchise.” The power to license, strictly and' properly speaking, is simply a power to sell a privilege, and hence is confined to the granting of a privilege to do a thing in a case where the privilege might be withheld, or the doing of the thing might lawfully be prohibited entirely. The ordinance assumes the right of the city in this case to prohibit.
There is a class of cases where the power is granted to require the taking out of licenses before doing certain things, and in which the right to do the thing in question can not lawfully be prohibited altogether. This class of license cases falls properly within the exercise of the power to regulate, where that power is given. Thus, where a municipal corporation has power to regulate the sale of intoxicating liquors, and to license tippling houses, hut has not the power to prohibit altogether, it may be required that a license shall be obtained, in order that only discreet persons may be allowed to make such sales, and that bond and security may be required for good behavior in so doing. Hack-drivers in a city may be required, for the better protection of the public, to take out licenses, and wear a number or a badge for identification,. and all this under the exercise of police or regulative powers. In this case, as we have already seen, there is no pretense of the exercise of the regulative or police powers,— it is simply the exacting of a license fee, for the purposes of revenue only.
This brings us to the question whether the city of East St. Louis was clothed with power to exact of this ferry company this license fee, for the mere purpose of revenue. Had the city power to prohibit altogether in this case ? If it has such power, it is derived from the State of Hlinois, contained in the charter granted in 1869. Unless the State of Illinois had at that time rightful power to exact such a license fee, it is plain the city can have no such power,—the stream can not rise higher than its source.
In 1819, on March 2d, an act of the legislature was passed granting to Samuel Wiggins, his heirs and assigns, authority to establish and maintain the ferry now owned by this ferry company, and to charge certain rates of ferriage. The second section of the act forbid the establishment of any other ferry within a mile of this ferry. The fourth section declared, that “the ferry hereby established shall be subject to. the same taxes as are now or hereafter may be imposed upon other ferries within this State, and under the same regulations and penalties; and if the provisions of the second section of this act should be made to appear to the General Assembly to be injurious to the public good, that then, and' in such case, the said second section may be repealed.” A sand bar having formed in front of the ferry landing at which Wiggins had established his ferry under the act of 1819, another act was passed on February 6, 1821, reciting the former grant to Wiggins, and granting to him the right to remove his ferry to another landing, “under the same privileges as prescribed in the act of March 2, 1819.” This was done, and the ferry maintained there by Wiggins, his heirs and assigns, until in 1853. In that year (1853) the Wiggins Ferry Company (the appellant in this case) was chartered, and authorized to purchase the ferry franchise granted to Wiggins, his heirs and assigns, by the acts of 1819 and 1821, and the ferry property thereto pertaining, and to exercise all the powers and enjoy all the privileges which had been so granted to Wiggins and his representatives. In that charter it was declared, that “nothing in this act shall be construed to create any private right, so as to interfere * * * with the right of the legislature at any time hereafter to create municipal corporations within the limits specified, and to confer upon such corporations all' such police poioers * * * as may be usually and properly conferred upon a city corporation under the constitution of Illinois." (Private Laws of 1853, p. 197.) Under this act the purchase was made, and when the charter of East St. Louis was granted, this ferry company was the owner of the ferry franchise in question. The burden here imposed does not seem to me to be in any sense the exercise of a police power.
The nature and character of that franchise was considered by this court in 1845, in the case of Mills et al. v. County of St. Clair, 2 Gilm. 197. It was there declared, that “the grant to Wiggins was essentially a contract between him and the State. By its terms, on his part, he is bound to run the ferry, to afford at all times a safe and speedy passage to travelers and their property across the river, to keep for this purpose a supply of boats and hands, and to propel such boats in the manner prescribed by'the act; and on its part, the State contracts that he may run the ferry. * * * The obligations imposed by the act * * * must, of necessity, be mutual. ” In an earlier part of that opinion it is said, in relation to this grant: “When a grant has once been made by legislative authority, * * * it can not be taken back * * * until the public interests and welfare shall demand its resumption, and provision shall have been made for just compensation to the owner, in the manner required by law. ”
Thus it is seen,.that at the time when the charter of appellee granted power to “license ferry boats,” this ferry company held, by contract from the State, the right to “run this ferry, ”—a right which could not be taken back by the mere fiat of the legislature,—and therefore the legislature had then no power to withhold from] this company such right, nor power to inhibit this company from running this ferry, and had not the power, by statute, to exact of this company a price to be paid for the privilege of running the ferry,—a privilege it already held by grant, and had paid for. Having no such power, the legislature could not grant such a power to the city. The use, then, of the general term, “to license ferry boats, ” made in the charter, should be held to grant only the power to exact a license 'fee, for revenue, from persons using ferry boats, who are not already clothed with the right to run without such license. Of course, a corporation has no higher rights than those of an individual under the same conditions. It has, however, the same rights. Had Samuel Wiggins continued to own this ferry franchise, could he have been lawfully subjected to this demand? I think not. This corporation stands in his shoes, and has the same rights in this regard.
This ordinance, in so far as'4t affects appellant, is merely an attempt to exact a license fee, purely for the purposes of revenue, as a price for a privilege which appellant already holds under purchase from Wiggins and others, who held the same by an irrevocable grant from the State, which the State itself could not, by mere legislative act, take away. It is a demand upon this company that it shall purchase from the city a privilege which it already owns by a title beyond the power even of the State to destroy or take away, save upon just compensation, under condemnation proceedings.
The ordinance, in so far as concerns this company, is, I think, incompatible with the statutes of the State granting this franchise to this company, and is therefore, in my judgment, inoperative upon this ferry company.