Vol. II.] YOUNGBLOOD v. SEXTON. [No. 12. least, it is not a bona fide controversy. The legal points involved in the merits have been presented in good faith, and we have no reason to suppose that, should the controversy be presented again in a more regular form, the case would assume any different phase in the argument. There is, besides, abundant reason apparent on this record for believing that the public interest demands an early determination of the questions involved. The pendency of this suit has, to some extent, delayed for a considerable period the enforcement of a state law which is supposed to be of high importance; and if this should go off on the jurisdictional question, there is reason to look for further litigation which would constitute a ground, or at least a pretence, for further delay. Under all the circumstances we are agreed that an examination of the case on the merits, and an opinion thereon, are not only justifiable, but are demanded by considerations of public importance. The question which lies at the foundation of the litigation relates to the validity of the act for the taxation of the liquor traffic, passed May 3, 1875. General Laws of 1875, p. 274. The complainants, it appears, have severally been assessed a tax as dealers in liquors, and they contest the payment on the ground that the legislature had no constitutional authority to impose it. A number of reasons are assigned for the invalidity of the tax, and these we shall consider separately. I. It is objected that the tax is a state specific tax, and that the law imposing it is unconstitutional, because it devotes the money raised to the use of the towns, villages, and cities in which the business taxed is carried on, in violation of article 1, section 14, of the Constitution, which provides that "all specific state taxes, except those received from the mining companies of the Upper Peninsula, shall be applied in paying the interest upon the primary school, university, and other educational funds, and the interest and principal of the state debt, in the order herein recited, until the extinguishment of the state debt, other than the amount due the educational funds, when such specific taxes shall be added to and constitute a part of the primary school interest fund." The only question that arises upon this objection is whether this tax is a state tax or not. It was settled in People v. Wolcott, 17 Mich. 68, that the state might pass laws. for the levy of new specific taxes, and in Kitson v. Ann Arbor, 26 Mich. 325, that local specific taxes might be authorized. The substantial difference between this case and the one last cited consists in the fact that there the tax was levied under a city ordinance, and here it is levied by general law. In both cases the money was to be put to local purposes. In one sense, undoubtedly, any tax levied by a general law is a state tax; but if the moneys are to be put to local uses, the only substantial difference between that and one levied by local action consists in this: that in one case the state levies the tax, and in the other it authorizes the levy. All taxation must be authorized by the state; and we know of no reason why all taxation for the ordinary purposes of government may not be levied under general laws when no express provision of the Constitution forbids it. Such legislation is no novelty in this, state or elsewhere. Highway and school taxes are very commonly levied in that way, the local authorities, as to some of them, having no option, but being put under legal compulsion to assess and collect them. The school mill tax Vol. II.J YOUNGBLOOD v. SEXTON. [No. 12. may be taken as an illustration: collected under a general law, it was nevertheless put to the uses of the community which paid it; and it was in no proper sense anything more than a local tax. Neither is the tax now in question. us. II. It is said the tax is invalid because it is not levied on any principle of equality or uniformity, and consequently lacks one of the essential elements of lawful taxation. If the precise point here is that the tax is unequal and unjust because it is not levied in proportion to the business done, then the objection is without force. It may possibly be true that an apportionment according to the business done would have been more just; but a question of this nature concerns the legislature and not Courts cannot annul tax laws because of their operating unequally and unjustly. If they could, they might defeat all taxation whatsoever, for there never yet was a tax that was not more or less unequal and unjust in its practical workings. Kirby v. Shaw, 19 Penn. St. 268; Commonwealth v. Savings Bank, 5 Allen, 426; Allen v. Drew, 44 Vt. 174; Grim v. School District, 57 Penn. St. 433; People v. Worthington, 21 Ill. 171; Coburn v. Richardson, 16 Mass. 213, 215; Coite v. Savings Bank, 32 Conn. 173, 184. But the objection to a want of uniformity is wholly misplaced here. Uniformity is the very basis of this tax. It is levied entirely without discrimination, and the real objection made to it is, not that it lacks uniformity, but that the legislature were unjust in making it uniform instead of levying it by some standard of discrimination. The objection presents a case of misapplication of terms. It is also presented to the wrong tribunal. The question whether a tax is just and equal or not is not a question of law. And this will meet any objection to the law, based upon the fact that other kinds of business are not similarly taxed. Apportionment of taxation is purely a legislative function. III. It is argued that the tax is void as a local tax, because the municipalities have no voice in its levy and collection. In support of this objection, decisions are cited in which this court affirmed the right of the inunicipalities to choose their own local officers, and to decide for themselves whether they would burden their property with taxes for mere local conveniences, in which the people of the state at large had no interest. Those decisions were made in cases in which the municipality was objecting to unusual legislation, which proposed to subject it to extraordinary burdens. There is nothing of the like nature here. The municipality is not complaining, and the legislation proposes to make its burdens lighter instead of heavier. The complaint, if any local rights are invaded, comes from the wrong source. The city ought to be here showing cause why she should be compelled to receive the tax, instead of these complainants showing cause why they should not pay it over to the city. When the city of Detroit shall object to having the money thrust upon her, it will be time enough to inquire whether any of her privileges are taken away by the law. At present it is sufficient to say that parties whose interests are directly antagonistic to those of the city, in regard to the particular matter in controversy, are not to be heard objecting on her behalf that the rights of the city are violated by the collection of a tax for her use. But it cannot escape even the most common observation that the purpose of this legislation, so far as it involves local rights, is directly Vol. II.] YOUNGBLOOD v. Sexton. [No. 12. the opposite to that which was held inadmissible in People v. Hurlbut, 24 Mich. 44, and Park Commissioners v. Common Council of Detroit, 28 Mich. 228. The legislation which came under consideration in those cases was designed to eventuate in taxation of the people of Detroit against their opposition. This only provides for a general tax, which, so far as it is collected within any particular locality, is handed over to the local authorities, and credited to the local contingent fund. As a part of that fund it will be put to such purposes as the local authorities may agree upon, and presumptively these will be the general purposes of local government. The law therefore favors the localities instead of forcing unusual burdens upon them. IV. It is objected that the sheriff is made the collector of township, village, and city taxes under this law, when by right that duty, and the fees which are given for its performance, belong to the township, village, or city collector, or treasurer. This objection, like the last, comes from the wrong source. Those on whose behalf it is made are not here as parties, and we are not aware that they complain. The parties taxed are the persons who manifest this decided interest in the constitutional emoluments of the office of collector, and not those who are said to be entitled to the fees. If the objection were a valid one, it is not clear that it could invalidate the tax; it might only raise the question of the right of a particular officer to collect it. It is certain that it could constitute no objection to the tax in equity; for as between the town or city and the party taxed, the equity of the tax is not in the least affected by the circumstance that the wrong officer is deputed to collect it, if that constitutes the only valid objection. But we think the objection is without force either at law or in equity. Admitting what these complainants insist upon, that the township and city collectors have a constitutional right to perform all the duties that belong to their offices when the Constitution was adopted, it does not follow that they are entitled to collect this tax. A constitutional right to perform the old duties cannot be extended to cover new duties, merely because they happen to be of a similar nature. This law takes from the local officers nothing; the complaint of it is that in providing for a new duty, it confers it upon another officer, instead of upon the township and city officers. In this there is nothing unusual. Sheriffs in many states are collectors of taxes, and in this state they have always in some contingencies been collectors. It is true that in collecting this tax, the sheriff acts on behalf of the municipalities; but so he does in any case where the tax warrant is delivered to him; and so do the county treasurer and auditor general, in collecting taxes; for they collect the local taxes as well as those levied for state purposes. The whole tax system is something in which the state at large is concerned, and the rules by which it may be made to operate harmoniously cannot be rules so inflexible as not to yield to circumstances when the legislature deems it essential. But there is another consideration that is conclusive on this point. This objection, like the last, is supposed to find support in the reasoning of this court in People v. Hurlbut, 24 Mich. 44. But in that case we took special pains to show that for some purposes the townships, villages, and cities of the state could not be permitted to act independently, but were Vol. II.] YOUNGBLOOD v. Sexton. [No. 12. and must be subject to compulsion by the state. The case of taxes for general purposes was especially instanced, and it was said the municipalities could not be left to collect these, or to refuse to collect them at their own volition; they must collect them, and they must sustain local government, whether willing to do so or not. To that extent every part of the state was concerned in the action of every other part, because disorder in one locality would derange more or less the whole system. In the previous case of People v. Mahaney, 13 Mich. 487, it had been decided that the state had power to take control of the police of the city; and this was cited with approval in People v. Hurlbut, on the express ground that the police of the state, and the preservation of order in every locality, was matter of state concern, and not of mere local interest. It requires no argument to demonstrate this; the effect upon the whole state of abrogating local government in a single city or township, and leaving everything to disorder and to the unrestrained, passions of bad men, would inevitably be pernicious beyond estimate. Now the law under consideration, though having revenue for one object, has the police of the state for another. It was deemed important to adopt it as a matter of police regulation. The legislature saw fit not to leave it to the localities to enforce it or not at their option, and it is a matter of reasonable inference, that they refrained from doing so, because the refusal of a locality to enforce it would introduce disorder into the system. Whether that was the reason or not, they had, as we think, an unquestionable right to make all such provisions as they deemed essential to preclude the probability of the law being nullified in any quarter. If to accomplish this it was deemed essential to commit the execution of the law to county instead of municipal officers, we know of nothing to preclude it. There is certainly nothing in the previous decisions of this court that is incompatible with this feature of the law. V. The objection which appears to be principally relied upon is, that a tax on the traffic in liquor under this law is equivalent to a license of the traffic, and therefore comes directly in conflict with that provision of the Constitution which declares that "the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits, or other intoxicating liquors." Const. art. 4, sec. 47. In order to arrive at the exact meaning of this provision, and to show what the convention and the people had in view, and intended to accomplish in adopting it, no little industry has been expended in sifting the proceedings of the convention, and in bringing before us the expression of views by the different members of that body upon the subject of the liquor traffic. But one needs to give very little attention to the proceedings in order to be convinced what in fact is a part of the public history of the time-that members of the convention who expressed views leading to the same result in shaping the instrument to be submitted to the people had objects in view which were totally different, and expected, or at least hoped to accomplish, wholly different ends by means of the provision finally agreed upon. The provision itself is experimental, and no one could safely predict the consequences; but while those who favored the total destruction of the traffic in ardent spirits hoped to accomplish that object by means of a prohibition of license, others, not willing to destroy the trade, regarded the in Vol. II.] YOUNGBLOOD v. SEXTON. [No. 12. hibition of license as a removal of embarrassing restrictions and impediments. The provision agreed upon was not of itself a prohibition of the traffic, and upon this the most diverse views might be concentrated; but beyond this there was no harmony of purpose whatsoever. With license prohibited, a broad field was still left for legislation, and each side might hope to obtain the advantage in that, and not to find the constitutional provision interpose any serious obstacle. For these reasons the proceedings of the constitutional convention are as nearly as possible worthless for any purpose of giving aid in the construction of this provision; and we can only take it as it stands, and seek the meaning in the words employed to express it. Does, then, a tax upon the traffic in liquors come within the condemnation of this provision of the Constitution, as being equivalent to a license of the traffic? Is it the same in legal effect, or is it the same according to the popular understanding of the term license? This is the question that presents itself for decision on this branch of the case. The popular understanding of the word license undoubtedly is a permission to do something which without the license would not be allowable. This we are to suppose was the sense in which it was made use of in the Constitution; but this is also the legal meaning. 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, 49. Within this definition a mere tax upon the traffic cannot be a license of the traffic, unless the tax confers some right to carry on the traffic, which otherwise would not have existed. We do not understand that such is the case here. The very act which imposed this tax repealed the previous law which forbade the traffic and declared it illegal. The trade then became lawful, whether taxed or not; and this law, in imposing the tax, did not declare the trade illegal in case the tax was not paid. So far as we can perceive, a failure to pay the tax no more renders the trade illegal than would a like failure of a farmer to pay the tax on his farm render its cultivation illegal. The state has imposed the tax in each case, and made such provision as has been deemed needful to insure its payment; but it has not seen fit to make the failure to pay a forfeiture of the right to pursue the calling. If the tax is paid the traffic is lawful; but if not paid the traffic is equally lawful. There is consequently nothing in the case that appears to be in the nature of a license. The state has provided for the taxation of a business which was found in existence, and the carrying on of which it no longer prohibits, and that is all. But it is urged that by taxing the business the state recognizes its lawful character, sanctions its existence, and participates in its profits, all of which is within the real intent of the prohibition of license. The lawfulness of the business, if by that we understand that it is no longer punishable, and is capable of constituting the basis of contracts, was undoubtedly recognized when the prohibitory law was repealed. But as the illegality of the traffic depended on that law, so its lawfulness now depends upon its repeal. The tax has nothing to do with it whatever. Now it is not claimed, so far as we are aware, that the repeal of the prohibitory law was incompetent; and if not, the mere recognition of the lawfulness of the traffic cannot make the tax law or any other law |