IN BANK. Dec. Term, 1846 City of Cincinnati v. Bryson. We, however, do not view them in any such light. The employment gives the drayman or hackman special privileges, which he enjoys to the prejudice of the city, in the injury necessarily done to her streets and pavements, to an amount far greater than any benefit to be derived from the price of the license, excluding the necessary burden of supervision. Nor does the case show that three dollars is too much to pay as a reasonable fee for issuing the license, and the keeping the necessary registers. Judgment reversed, and the judgment rendered which should have been rendered by the Court of Common Pleas. READ, J., dissenting. I cannot concur in the opinion of the Court just pronounced. The charter itself fully establishes the distinction between the power to "license and regulate," and the power to tax. Sec. 11 provides, that the city council shall have power to license theatres, taverns, auctions and ferries, on the Ohio river; and, in granting the license, the city council may "exact, demand and ' receive such sum or sums of money as they shall think fit and 'expedient." Sec. 14 provides, that to defray the current expenses of the city, the city council shall have power to levy and collect taxes on the real and personal property therein, as the same has been, or shall be appraised and returned on the grand levy of the State. Sec. 13 provides simply, that the city council shall have power to license and regulate all carts, wagons and drays, and every description of two and four wheeled carriages, which may be kept in said city for hire. No power is given in this section, as is given by the eleventh section, to exact "such sum of money as they may deem fit and expedient.' The insertion of that power in section eleven, and the omission of it in section thirteen, is of itself sufficient to give a construction to the charter adverse to that claimed by the city council. I am of opinion that this construction is conclusive. But there are two other objections to the decision of the Court, viz: City of Cincinnati v. Bryson. First That, independent of the aid derived from a comparison of the different sections of the charter above quoted, the power to "license and regulate" does not embrace a power 'to raise a tax; and, Second: If even the charter did propose to confer that power, it would be unconstitutional and void, as an infringement of the right of every citizen to earn a livelihood by honest industry. I hold that the words to "license and regulate," in the city charter, do not confer the power to impose a tax upon the owners of drays and other wheeled vehicles, or to raise a fund from such owners for general city purposes. These words barely confer a police power, and may authorize the city council to require such owners to register their names, and number their dray or other carriage, and to charge a reasonable fee for such entry or registration, but nothing more. The charge of three dollars upon draymen, imposed by the ordinance, is not in the nature of fees, but of revenue, to go into the treasury of the city for general purposes. It is a tax upon employment, and not upon property. The property the dray and horse-is assessed according to its value, as other property, apart from the three dollars imposed by this ordinance. But it is said that Bryson, in this case, is not resisting the payment of the three dollar tax, but the penalty adjudged for not complying with the ordinance, requiring him to take out his license as a drayman. That will not help the case; because, if the city council had the power to compel every drayman to take out a license, and to impose a penalty for violation of the ordinance requiring such license, yet, if the city impose a condition precedent to the grant of such license, which is illegal and void, and refuse, under the ordinance, to issue the license unless such condition be complied with, the whole ordinance is void, and no penalty can be enforced for its nonperformance. If the city have no authority to require three dollars to be paid to obtain a license to exercise the employment of a drayman or cartman, and refuse to grant a license IN BANK. Dec. Term, 1846. City of Cincinnati v. Bryson. Dec. Term, 1846. IN BANK. unless such three dollars be paid, it would be absurd to say that a penalty could be imposed for the nonpayment of the three dollars and the not procuring a license. The city refuse to grant the license unless the sum of three dollars be first paid; and, if there be no authority to require the payment of three dollars, for a license, the coupling a power which they have, to wit, to license, with a power which they have not, to wit, to charge three dollars as a condition precedent to such license, renders the whole ordinance a nullity, and also all other ordinances, or parts of the same ordinances, which impose a penalty for its violation. This leaves the naked question, have the city the power, under their charter, to impose a tax upon the employment of draymen, cartmen, &c.? If the city have the power, it must be derived under the charter. Did the Legislature intend, by the words to "license and regulate," to confer upon the city council the general power to tax the employment of draymen and cartmen? Because, if the city have the power at all, it is a general power; for the amount of the tax is not limited by the charter, but left to the discretion of the city authorities. Hence, if they may impose a tax of three dollars, they may impose a tax of three hundred. But it is said that it is a power to impose a reasonable sum. Who shall judge of the reasonableness or unreasonableness of the sum imposed? If the power exists at all, it exists to be exercised at the discretion of the city council. If they exercise a discretion which they possess, who shall control it? What is the limit? what is the rule? Even could the exercise of this discretion be brought in review before the courts of the country, what would be the mode to determine whether the amount charged was too large? Nothing but the discretion of the Court. So, at last, the matter, in some shape, would be left to discretion. And if three dollars might be charged, so might a larger or an indefinite sum. But the truth is, if the city council have the power to tax at discretion, the exercise of that discretion, on their part, is the end of the matter, and it is not City of Cincinnati v. Bryson. Dec. Term, 1846. subject to review. The council, in such view, are the judges IN BANK. of their own discretion. It has been said, by high authority, that the power to tax implies the power to destroy'; and where the general power to tax exists, as in the State, I know of no limit to its exercise, except the discretion and judgment of those who are to exercise it, and that it must be equal and operate upon all alike. Did the Legislature intend, then, to confer any such power upon the city council? We find that in all cases where the city is authorized to raise revenue, the charter imposes a limit to its exercise. The words to "license and regulate," do not expressly confer the power to tax, but such power, if it exist, is implied. Now the power to tax is not necessary to the exercise of the power to "license and regulate," and hence, upon the well settled doctrine of construing charters, should be denied. Nor can it be presumed that the Legislature have conferred a power not expressly conferred, or absolutely necessary to the exercise of such power so conferred. In certain cases the Courts of Common Pleas are authorized to grant licenses; suppose such power to license was conferred upon the Courts of Common Pleas, and the statute conferring such power fixed no sum to be paid for the grant of such license, would any man in his senses contend that the Court would have the right to fix such amount as it saw proper, to be paid as a condition precedent to the grant of such license? The word "license," then, does not confer the power to tax, nor is the power to tax necessary to the exercise of the power to license. We must infer, then, that the Legislature intended merely to confer the power of police regulation, and not the power to tax or raise revenue. But it is said, it is reasonable to impose this tax upon draymen, cartmen, &c., because they wear out the streets. The suggestion is without force. The streets are not constructed or repaired out of the general funds of the city, but are a charge upon the owners of lots abutting upon such streets. Their property is only valuable in proportion as the streets are worn by use. Besides, the money raised by the tax imposed City of Cincinnati v. Bryson. Dec. Term, IN BANK. upon the draymen, is not applied to the repair and preservation of the streets, but is paid into the city treasury to swell the general fund. It is made a source of general revenne. 1846. It is suggested that the sum thus charged under this ordinance is to pay the expense of registration, &c., as fees. This is not only not true, but it is not even pretended by the city. The truth is, it is a naked and barefaced effort to shift the burdens of the city expenses from property upon labor, and to levy a tax, not in proportion to the value of property owned, or the moneyed ability to pay, but upon employment. In this there is not a shadow of equity, because, if the streets are never cut by drays, it is this very business that gives value to property, and increases rents. Besides, it should not be the poor drayman who should be taxed for the wear of streets, but the wealth and commerce which he is the humble instrument of transporting. I cannot believe that the Legislature intended to confer any such power, nor can it be inferred from any known rule of construction, but is in direct opposition to the well established rules applicable to the construction of charters, and, beyond all this, in the direct face of the constitution. Hence, the Legislature would have no authority to confer the power claimed. If there is a power to license, in the sense claimed, there is a power to prohibit. The Legislature has no power to prohibit a man from exercising an honest employment. The right to labor is an inherent and natural, as well as constitutional right. The law has assigned an ownership to all that can aid man to live-to all that constitutes food or clothing. The only mode by which those born naked into the world can obtain support, by acquiring that which will preserve life, is by the consent of the legal holder, or through the provisions furnished to the destitute under the poor laws. Property seldom comes by gift; the poor obtain it by labor. The right to labor is coupled with the right of life, and is a necessary principle of self-preservation. Without labor, man would perish. It is the |