Reser v. Umatilla County

Mr. Chief Justice Bean

delivered the opinion.

1. It is conceded by the defendant county that if the law in question is a revenue measure, anl the sum required to be paid by the owners of foreign sheep a tax, it is void, because the tax is not uniform or levied according to value. But the contention is that the law was designed simply to regulate and control the pasturage of foreign sheep, and comes within the police power. There is no doubt that the keeping of live stock within the State is under police regulation. The State may prohibit the running at large of such animals, and compel their owners to keep them within their own inclosures, and it has been held that it may prohibit their grazing or being herded within certain prescribed territory: 2 Tiedeman, State and Federal Control, 838; Sifers v. Johnson, 7 Idaho, 798 (65 Pac. 709, 54 L. R. A. 785, 97 Am. St. Rep. 271); Sweet v. Ballentyne, 8 Idaho, 431 (69 Pac. 995); Spencer v. Morgan, 10 Idaho, 542 (79 Pac. 459).

2. And, as an incident to the power to regulate and control, it may be that the State can exact a charge or fee for the privilege of allowing stock to run at large. But we do not think the law under consideration is of that character.

3. It is sometimes difficult to distinguish between a tax and a license. Generally speaking, a tax is a charge or burden imposed on persons or property for the support of the government or for some specific purpose authorized by it. Its object is to raise revenue: Bouvier, Law Die. A license, however, is a permission to do what would otherwise be unlawful. The fee or charge often exacted therefor is in law supposed to cover the cost .of issuing the license and the expenses incident to regulating and controlling the business, although it may ultimately result in a source, of revenue. To relieve a law imposing a burden or tax upon persons or property from the operation of the constitutional provision relative to taxation, it must have for its primary object the granting of some privilege or the imposing of some restraint. A license is essentially a grant of a special privilege to one or more persons, not enjoyed hy citizens generally, or, at least, not enjoyed by the class of citizens to which the licensee belongs: Home Insurance Co. v. City Council of Augusta, 50 Ga. 530. “The object of a license,” says Mr. Justice Manning, “is to confer a right that does not exist without a license”: Chilvers v. People, 11 Mich. 43. And Judge Deady says that it is “a 'permission to do what was unlawful at common law, or is made so by some statute or ordinance, including the one authorizing or requiring the license”: The Laundry License Case (D. C.), 22 Fed. 703. And Mr. Justice Cooley says that the popular, as well as the legal, understanding of the “word ‘license’ undoubtedly is a permission to do something which without the license would not be allowable”: Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654). The distinction between a tax upon a business or property and a license may be said to be that the former is exacted by reason of the fact that the business is carried on or the property is within the jurisdiction of the taxing power, and the latter is required as a condition precedent to the right to carry op such business or have such property within the jurisdiction.

4. Within these definitions a mere tax on sheep of nonresident owners cannot be said to be a license unless the payment of such tax confers some right or privilege upon such owners which otherwise would not exist. We do not understand that such is the ease here. The law is entitled, “An Act to Tax All Foreign Sheep Coming Into the State of Oregon,” etc., and simply provides the amount of such tax and the manner of its collection. No' special privileges are granted to the nonresident owner by reason of the payment of the tax, nor is the payment of such tax made a condition precedent to the right to bring sheep into the State, if, indeed, such legislation would be valid: 21 Am. & Eng. Enc. Law (2 ed.), 799; Farris v. Henderson. 1 Okl. 384 (33 Pac. 380). Nor does the failure to pay the required tax render the pasturing of sheep in the State illegal, any more than the failure of a man to pay the taxes upon his farm renders the occupation of farming illegal. The law does not pretend to impose any restraint upon the sheep industry and no privilege is granted by its terms. The burden imposed is upon the property, and not upon the business, and applies alike to the man who brings his sheep into the State to pasture them on land of his own or that of the government and the man who brings his sheep into the State to pasture them upon the land of the State. We are therefore forced to the conelusion that it is essentially a revenue law and void, within the rule announced in Ellis v. Frazier, 38 Or. 462 (63 Pac. 642; 53 L. R. A. 454), because the tax is not uniform and equal, nor levied with reference to the value of the property.

And such is the conclusion reached by other courts upon substantially the same character of legislation. Thus an act of the legislature of Colorado providing that nonresidents grazing cattle in any county of the state should pay a certain fixed sum per head in lieu of all taxes was held void, because in violation of the constitutional provision that all taxes shall be uniform upon the same class of subjects: Kiowa County v. Dunn, 21 Colo. 185 (40 Pac. 357). So, also, a law providing for a special tax of a stated amount for the benefit of public roads upon all road wagons and other vehicles, irrespective of their value, was declared invalid by the Supreme Court of Alabama: Smith v. Court of County Commissioners, 117 Ala. 196 (23 South. 141). Likewise an act requiring every corporation or company operating a railroad or any part of a railroad within the state to pay a fee of $1 a mile for each mile of track was held to contravene the provisions of the Ohio constitution, requiring equal and uniform taxation: Railroad Co. v. State, 49 Ohio St. 189 (30 N. E. 435). And in Georgia a municipal ordinance imposing a specific tax of $1 a head on each horse or mule sold by drovers in the city was declared void, because in violation of the provision of the state constitution that taxation shall be ad valorem and uniform on all property of the same class: Livingston v. City Council of Albany, 41 Ga. 21. So, also, an ordinance imposing on bicycles and other wheel vehicles a tax to be used for the improvement of the streets was declared to be within the inhibition of the state constitution of Illinois against double taxation, and void because unequal and not uniform: Chicago v. Collins, 175 Ill. 445 (51 N. E. 907, 49 L. R. A. 408, 67 Am. St. Rep. 224). Minnesota has a constitutional provision similar to ours, and in State v. Lakeside Land Co. 71 Minn. 283 (73 N. W. 970), it was held that a law providing for a system of taxation on mining property and products by the payment of a fixed sum per ton for all ore mined or shipped was void, the court saying: “It would be difficult to conceive of a system of taxation’ more obnoxious to the constitution.” Under a similar constitution the Supreme Court of Louisiana held that the legislature could not levy a tax upon cotton by the pound: Sims v. Parish of Jackson, 22 La. Ann. 440.

It follows that the judgment of the court below must be affirmed, and it is so ordered. Affirmed.

Mr. Justice Hailey, having been of counsel, took no part in this decision.