restraints on alienation: in general it is impossible to give one complete ownership of a thing without at the same time giving him complete jus disponendi. In connection with prohibition and similar social legislation, courts have found it necessary to recognize the possibility of limiting this jus disponendi, at first evasively, as in this case, but finally, frankly. The occupations listed below, as subject to licenses, are in many instances nothing but exercises of jus disponendi over one's own property.

§30. Licenses.-"As proper subjects for license or tax the following occupations or privileges have been sanctioned by the courts: Any commercial or professional business; corporate franchises and privileges; dealing in 'futures'; the keeping and use of animals; the keeping of billiard or pool tables for profit; the keeping of bowling alleys; the keeping of concert and dancing halls; keeping laundries; keeping a restaurant; mechanical trades and pursuits in general; mercantile business in general; publishing a newspaper; raising or grazing sheep; sales of goods; sales on exchanges; selling certain publications; selling foreign merchandise; selling newspapers; selling to employees or tenants; theaters and shows; vehicles and means of transportation in general; vehicles used in carrying passengers or property for hire or profit; vehicles used by merchants or manufacturers in their own private business; and vessels. And among the persons whose occupations have been declared to be properly subject to license or tax are the following: Architects; attorneys; auctioneers; bakers; banks; bill-posters; brewers; bridge companies; brokers; carriers; cigar and tobacco dealers; confectioners; corporations; dairymen; dealers in or sellers of oleomargarine; dealers in second-hand goods; dealers in tradingstamp enterprises; dentists; detectives; domestic corporations; druggists; drummers and canvassers; emigrant agents; employment agents; express companies; factors and brokers; farriers; ferries; foreign corporations; foreign insurance companies; grocery dealers; hawkers and peddlers; hospitals; ice dealers; innkeepers; insurance brokers or companies; itinerant merchants or traders; junk dealers; dealers in second-hand goods; keepers

Cf. Gray, Restraints on Alienation, 2d ed. 1905.

of gaming houses; liquor dealers; livery-stable keepers; lumber dealers; manufacturers; meat dealers; merchants; milk dealers; money lenders; note-shavers; packers and carriers of oysters; patent medicine vendors; pawnbrokers; persons dealing in food; pharmacists; photographers; physicians and surgeons; pilots; pipe line companies; plumbers; produce dealers; railroad companies; sewing-machine agents; soda-water dealers; steamship companies; street railroad companies; teachers; telegraph and telephone companies; turnpike companies; vendors of lottery tickets; warehousemen; water companies; and wood dealers." (25 Cyc. 614-621.)

§31. The Bases of Trade Licenses. In this list of licenses it is interesting to consider the primary purpose of each type of licensing law and also the incidental functions served by the law. Some are manifestly attempts to control dangerous or even pernicious practises; others are attempts to safeguard the public health; a few seem to be based on determining whether the public interest requires new establishments of certain types (for example, in Massachusetts before the incorporators of a trust company are allowed to begin business, they must obtain a certificate that public convenience and advantage will be promoted by the establishment of the company); some are designed to protect the public from incompetent practitioners of various kinds; still others seem to be means primarily of raising revenue. For a discussion of these and other elements in licensing laws, compare the following cases.

1

$32

BRAUN v. CHICAGO

Supreme Court of Illinois, 1884 [110 I. 186.]

WALKER, J.: These cases were commenced and tried separately, before the justice of the peace and in the circuit court

Whatever the purpose, the close relationship between licensing and the "police power" of the state has tended to make the modes of enforcement quite drastic. Thus, though if a corporation is improperly organized no one but the state may take advantage of the defect, if a corporation or individual proceeds to do business without a license it is generally provided that any one may take advantage of the deciency in his dealings with the delinquent. As to what constitutes "doing business" every statute must stand on its own bottom. The decisions interpreting the expression are an instance in which the quantitative deluge defies qualitative analysis.

of Cook county; but inasmuch as the same questions are presented in both cases, they have been argued and submitted as one in this court. We shall therefore consider them together.

In the circuit court it was stipulated that Braun was engaged in selling, in the city, produce, such as butter and eggs, belonging to other persons, when sent to him for that purpose; that he sold to such persons as would buy; that he also negotiated sales of such produce for others, without having possession of the property-and for such business so conducted by him he received as compensation therefor a percentage on the gross amount of such sales. It was also stipulated that appellants Lyman & Giddings were engaged in the city in negotiating the sale of, and did sell real estate, situated in the city and elsewhere, for persons owning the same, and in bringing together persons desiring to sell and purchase, and they sold such property, and for such services they received a compensation determined by receiving a certain percentage of the price of real estate sold, or received a specific sum agreed upon between them and the seller. In both cases the parties were prosecuted for failing to obtain a license under the city ordinance, and fined before the justice of the peace, and appeals were prosecuted to the circuit court, where on trial de novo, they were again fined. They appealed to the Appellate Court for the First District, and in that court the judgments were affirmed, and they bring the records to this court by appeal.

Appellants insist that the city ordinance imposes a tax, and that it is not uniform, as required by the constitution, nor is it imposed by a general law; that the city charter does not authorize the adoption of an ordinance that would embrace the occupations or business in which the appellants are severally engaged, and that the legislature was powerless to enact the provision of the charter under which the ordinance was adopted. The provision of the charter referred to is clause 91, of section 62, of the general law incorporating cities, villages and towns. (Rev. Stat. 1874, p. 223.) It reads: "To tax, license, and regulate auctioneers, distillers, brewers, lumber yards, livery stables, public scales, money-changers and brokers." The ordinance adopted under this provision is this:

"SECTION 1. It shall not be lawful for any person to exercise within this city the business of a moneychanger or banker, broker or commission merchant, including that of merchandise, produce or grain broker, real estate broker and insurance broker, without a license therefor.

"SEC. 2. A merchandise, produce or grain broker is

one who, for commission or other compensation is engaged in selling or negotiating the sale of goods, wares, merchandise, produce or grain belonging to others.

"SEC. 3. A real estate broker is one who, for commission or other compensation, is engaged in the selling of or negotiating sales of real estate belonging to others, or obtains or plans loans for others on real estate.

"SEC. 4. An insurance broker is one who is engaged in procuring or places insurance on buildings, vessels and other property, for others.

"SEC. 5. There shall be collected, annually, for every license granted for any banker, the sum of $100; and there shall be collected, annually, for every license granted for any broker, or commission merchant, or money-changer or broker, the sum of $25; and there shall be collected, annually, for any license granted any real estate broker, the sum of $25; and there shall be collected, annually, for every license granted for any insurance broker, the sum of $25.

"SEC. 6. That any person violating any provision of this ordinance shall be subject to a penalty of not less than $25 nor more than $100, and to the same penalty for every subsequent violation thereof."

We have so repeatedly and uniformly held that a license fee is not a tax, in the constitutional sense, that it may be regarded as settled.

The ninth section' provides that the legislature may authorize the corporate authorities of such municipalities to levy taxes for corporate purposes. This is the source of their power to impose such taxes. But the power of the legislature and the corporate body is limited to uniformity as to persons and property within the corporate limits of such bodies. Any attempt by the legislature or the corporate authorities to depart from such uniformity as to persons or property is prohibited, and such an effort would be void. The tenth section is a limitation on the power of the legislature to impose taxes on municipal corporations, or the persons or property thereof, for corporate purposes, but it may require taxes, uniform as to persons or property therein, to be imposed for the payment of corporate debts. Thus it is seen municipal taxes are specifically provided for by these sections. It is manifest that such taxes do not depend upon, nor are they controlled by, the previous sections of that article.

Of the Constitution of Illinois.

If these fees, as contended, are taxes, do they conform to the requirement of the ninth and tenth sections of that article? They are manifestly uniform as to all persons of the same class within the limits of the city. The provisions of these sections are similar to the same provisions in the constitution of 1848, and under that instrument it was held that a tax or license fee was only required to be uniform as to the class enumerated within the corporate limits. (See East St. Louis v. Wehrung, 46 Ill. 392, and the same case of the January term, 1868, unreported.) The provisions in each constitution being the same, they will admit of but one construction. Nor do we see any reason for departing from the construction then given to these provisions. So it is seen that whether these licenses be regarded as fees or taxes, they are fully justified by the constitution, nor do they violate any of its provisions. There is no limitation on the legislative power to invest such municipalities with the power to tax for corporate purposes, but they shall be uniform as to persons and property within the corporate limits. If such power has been conferred, and properly exercised, then, if a tax, as claimed, it must be sustained.

It is, however, urged, that the 91st clause of section 62 of the city charter is repugnant to the latter clause of section 1, of article 9, of the constitution. If this is a tax, it in no sense depends on that section for its validity. As we have seen, this tax is dependent alone on the 9th and 10th sections of that article, and can not be controlled by the 1st and 2d sections because they refer to other and entirely different taxes, levied for other than city purposes. It is true that this clause of section 62 does not require uniformity, but it does not attempt to dispense with it, and the constitution does require it, and the ordinance conforms to the requirement, and that satisfies the constitution.

If this is a tax, then there can be no question that the General Assembly had the power to authorize its imposition. Judge Cooley, from the adjudged cases, states the general doctrine to be: "The power to impose taxes is one so unlimited in force, and so searching in extent, that the courts scarcely venture to declare that it is subject to any restriction whatever, except such as restrains the authority which exercises it. It reaches every trade or occupation; to every object of industry, use and enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of government affect more constantly and intimately all the