exercise of the police power that the state or a delegated agency should impose a license fee upon the liquor traffic, since the business cannot be classed as a useful or honorable occupation.650 dinance was passed, not with a view to regulation, but of revenue. It may be conceded that a state or a municipality, exercising the sovereignty of the state, may not, under the guise of police regulation exact a tax; that if revenue only is designated, it is not a police regulation. It is doubtless true that the legislation must have reference to the supervision, control and regulation of some act or thing which may. in some way injuriously affect the peace, good order, health, morality, or safety of society; but we are unable to say that it clearly appears upon the face of this ordinance, that the purpose of it was to exact a tax and not to impose a license for regulation. The subject-matter is one peculiarly within the province of state regulation. The abuse of the appetite is productive of such evil tending to vice and immorality that the courts while zealous to protect the rights of property, should be alike careful not to invade the province of the lawmaking power of the state in the exercise of its police power to regulate those things which may become potential to the injury of society. It may be that the sale of liquor in original packages does not in itself require the same strict regulation as does the saloon; but it is not improper for a local legislature in view of the evil sought to be regulated, to impose upon the wholesale traffic such regulations as will effectually prevent the abuse of the right to sell at wholesale and to exercise the police power to that end." Town of Mt. Carmel v. Wabash County, 50 Ill. 69. See § 129, supra. 650 Intendant of Marion v. Chandler, 6 Ala. 899; Sheppard v. Dowling, 127 Ala. 1, 28 So. 791. The Alabama dispensary law (Acts 189899, p. 108), held constitutional. In re Jones, 78 Ala. 419; Barton v. Town of Gadsden, 79 Ala. 495; Tuck v. Town of Waldron, 31 Ark. 462. The charter authority to license or regulate the sale of liquor does not confer power to prohibit entirely its sale. City of Sacramento v. Dillman, 102 Cal. 107, 36 Pac. 385. The pow er to license confers a power to recover by civil action the amount delinquent upon a saloonkeeper's li cense. Los Angeles County v. Eikenberry, 131 Cal. 461, 63 Pac. 766; Ex parte Benninger, 64 Cal. 291; In re Bickerstaff, 70 Cal. 35; Daus v. City of Macon, 103 Ga. 774, 30 S. E. 670; Decker v. McGowan, 59 Ga. 805; Nathan v. City of Bloomington, 46 Ill. 347; People v. Town of Normal, 170 Ill. 468; Kiel v. City of Chicago, 176 Ill. 137; Lutz v. City of Crawfordsville, 109 Ind. 466; Wray v. Harrison, 116 Ga. 93, 42 S. E. 351. Town of Pikeville v. Huffman, 23 Ky. L. R. 1692, 65 S. W. 794. Cider held as an intoxicating drink. Hodgson v. City of New Orleans, 21 La. Ann. 301; Com. v. Brennan, 103 Mass. 70; City of St. Paul v. Troyer, 3 Minn. 291 (Gil. 200); Hennepin County Com'rs v. Robinson, 16 Minn. 381 (Gil. 340); Trustees of Aberdeen Academy v. City of Aberdeen, 21 Miss. 645; State v. Kantler, 33 Minn, 69. Leonard v. City of Canton, 35 Miss. 189. The power "to tax or entirely suppress all petty grocer It is also within the power of the state to impose a license fee on the right to sell liquors as a means solely of raising revenue.651 § 404. Nature of license. A license when issued is not generally considered in the nature of a contract,652 is personal,653 and may be revoked at any time without liability by the authorities granting it upon a failure to comply with the conditions imposed either by general ies" does not confer the right to license retailers of liquor. Licks V. State, 42 Miss. 316; Holberg v. Town of Macon, 55 Miss. 112; Boomershine v. Uline, 159 Ind. 500, 65 N. E. 513; Roberson v. City of Lambertville, 38 N. J. Law, 69; Williams v. Iredell County Com'rs, 132 N. C. 300, 43 S. E. 896; City of Portland v. Schmidt, 13 Or. 17. The sale of liquor cannot be absolutely prohibited under a power to restrain intoxication and provide for the good order of a city; its sale on particular days or at particular places may, however, be prohibited. Durach's Appeal, 62 Pa. 491; Schlaudecker v. Marshall, 72 Pa. 200; Bancroft v. Dumas, 21 Vt. 456; Moundsville v. Fountain, 27 W. Va. 182; Wallace v. Town of Cubanola, 70 Ark. 395, 68 S. W. 485. See, also, 10. Mun. Corp. Cas. 841. 651 Kitson v. City of Ann Arbor, 26 Mich. 325; Kansas City v. Richardson, 90 Mo. App. 450; City of Lamar v. Adams, 90 Mo. App. 35; State v. Bennett, 19 Neb. 191; Caldwell v. City of Lincoln, 19 Neb. 569; Harris v. State, 4 Tex. App. 131; Tonella v. State, 4 Tex. App. 312; Carr v. State, 5 Tex. App. 153. 652 Boyd v. State, 46 Ala. 329. After the payment of a license fee the privilege of transacting the business authorized for the time for which the payment was made cannot be taken away. Bishoff v. State, 43 Fla. 67, 30 So. 808. But it has also been held that it cannot be abrogated at any time without just and sufficient cause. City of St. Charles v. Hackman, 133 Mo. 634. 653 Powell v. State, 69 Ala. 10; Irving v. City of Highlands, 11 Colo. App. 363, 53 Pac. 234; Bishoff v. State, 43 Fla. 67, 30 So. 808; Lewis v. United States, 1 Morris (Iowa) 199. A license not capable of assignment. Columbus City v. Cutcomp, 61 Iowa, 672; Stokes v. Prescott's Adm'r, 43 Ky. (4 B. Mon.) 37; Mabry's Ex'rs v. Bullock, 37 Ky. (7 Dana) 337; Pfefferling v. City of Baltimore, 88 Md. 475, 41 Atl. 778; Calder v. Kurby, 71 Mass. (5 Gray) 597; Youngblood v. Sexton, 32 Mich. 406; City of Grand Rapids v. Braudy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116. But see Martin v. O'Brien, 34 Miss. 21; Reed v. Beall, 42 Miss. 472; Coulson v. Harris, 43 Miss. 728. People v. Commissioners of Pilots, 54 Barb. (N. Y.) 145. But a license cannot be revoked for the commission of acts prior to its date. State v. Morrison, 126 N. C. 1123; Branson v. City of Philadelphia, 47 Pa. 329. The right of the licensee is taken subject to the exercise of the power of eminent domain whenever the public good requires it. Gibson v. Kauffield, 63 Pa. 168. The license is a special personal privilege and cannot be used by an employe 655 law or special provision at the time it was granted.54 It further only affords protection for acts done within the period which it covers, and if one is exacted for the performance of certain acts, a violation of the law can be punished in the manner provided.656 The act, when in violation of the law that is without of the licensee. Martin v. McNight, 1 Tenn. (1 Overt.) 330; 2 Mun. Corp. Cas. 245. 654 Schwuchow v. City of Chicago, 68 Ill. 444. "Much stress is placed on the supposed vested right to the privileges conferred by the license. If, as we have seen, the control of the sale of liquors is a police regu. lation, then no one can obtain such a vested right in it as that it may not be resumed when the interests of society require it. In the cases (citing Illinois cases) this question was discussed and it was intimated that the legislature could not so far divest itself of the right to exercise the police power that it could not resume it, whether delegated to individuals or to corporations. So here we cannot infer that the legislature or the city intended to unconditionally part with the power for the period for which the license was granted. This being true, appellant took this license subject to be controlled by the police power. We can never hold that a person can acquire an absolute vested right to such a license for any definite period beyond the control of the police power of the state." Hurber v. Baugh, 43 Iowa, 514; Calder v. Kurby, 71 Mass. (5 Gray) 597; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; State v. Holmes, 38 N. H. 225; Child v. Bemus, 17 R. I. 230, 21 Atl. 539, 12 L. R. A. 57. 655 Elsberry v. State, 52 Ala. 8; State v. Lindsay, 34 Ark. 372; State v. Myers, 63 Mo. 324. An application for a license without securing it is no defense to an indictment for doing business without a license. City Council of Charleston v. Corleis, 2 Bailey (S. C.) 186; Davis v. State, 2 Tex. App. 425. 656 United States v. Smith, 75 U. S. (8 Wall.) 587. The penalty on a bond cannot be enforced for acts done after the expiration of the license granted in connection with the bond. See the cases of Aycock v. Town of Rutledge, 104 Ga. 533, 30 S. E. 815, and Papworth v. City of Fitzgerald, 105 Ga. 491, 30 S. E. 837, as holding that a statute conferring power on a designated court to punish the commission of acts already punished under the general laws of the state is unconstitutional as special legislation. Johnson v. City of Macon, 114 Ga. 426, 40 S. E. 322; Schwuchow v. City of Chicago, 68 Ill. 444. The punishment may in part consist of a revocation of the license granted. Jackson v. Boyd, 53 Iowa, 536; Com. v. Wilkins, 121 Mass. 356. The penalty may be so excessive as to be void under a power to pass reasonable by-laws and ordinances. City of St. Louis v. Green, 6 Mo. App. 591; Id., 7 Mo. App. 468. The nonpayment of a purely revenue tax cannot be made a misdemeanor. State v. Colby, 67 N. H. 391, 36 Atl. 252; Howe v. Treasurer of Plainfield, 37 N. J. Law, 145; Arnold v. Ford, 53 App. Div. 25, 65 N. Y. Supp. 528; City Council of Charleston v. the license, usually creates no civil or contract rights as between the parties to that transaction.657 § 405. License fee; when recovered. A public corporation which has collected an illegal and void tax or license fee is liable to the party paying it for the amount paid irrespective of its having been collected by compulsion or paid under protest," ,658 though some authorities hold to the contrary on this proposition.659 The principle controlling the right of recovery by an individual applies in cases where a portion of the license fee paid was illegal as well as in cases where it is entirely void. 660 Ashley Phosphate Co., 34 S. C. 541; State v. Manz, 46 Tenn. (6 Cold.) 557. 657 Bohon's Assignee v. Brown, 101 Ky. 354, 19 Ky. L. R. 540, 41 S. W. 273, 38 L. R. A. 503; Id., 20 Ky. L. R. 1496, 49 S. W. 450; Asher v. Com., 24 Ky. L. R. 96, 68 S. W. 130; Stanwood v. Woodward, 38 Me. 192. An innkeeper must prove himself duly licensed before he can establish a lien upon the property of his guests. Johnston v. Dahlgren, 166 N. Y. 354; Rearden v. Henson (Miss.) 29 So. 764. See, however, as holding that a valid sale and delivery of goods can be made without a license, the case of Brett v. Marston, 45 Me. 401, and see Jones v. Berry, 33 N. H. 209, where a peddler selling goods without a license was held to have the right to recover their price in a suitable action. Shepler v. Scott, 85 Pa. 329. To collect commission for a sale of real estate it is not necessary to show the possession of a license to act as a real estate broker. But see Singer Mfg. Co. v. Jenkins (Tenn. Ch. App.) 59 S. W. 660. 658 Callaway v. City of Milledgeville, 48 Ga. 309; Bruner v. Town of Stanton, 102 Ky. 459; Orton V. Brown, 35 Miss. 426; Town of Tupelo v. Beard, 56 Miss. 532. Alicense fee cannot be recovered when paid under a misapprehension of the law. John Kyle Steam Boat Co. v. City of New Orleans, 23 Int. Rev. Rec. 19; City of Galveston v. Sydnor, 39 Tex. 236; 1 Mun. Corp. Cas. 172, and cases cited. 659 Rooney v. Snow, 131 Cal. 51, 63 Pac. 155. The voluntary payment of a license fee cannot be recovered. Scottish Union & Nat. Ins. Co. v. Herriott, 109 Iowa, 606, citing Swift Co. v. United States, 111 U. S. 23; Shelton v. Platt, 139 U. S. 594; Cunningham v. Munroe, 81 Mass. (15 Gray) 471; Carew v. Rutherford, 106 Mass. 1; State v. Nelson, 41 Minn. 25, 42 N. W. 548, 4 L. R. A. 300; Beckwith v. Frisbie, 32 Vt. 559. Bean v. City of Middlesborough, 22 Ky. L. R. 415, 57 S. W. 478; Cook v. City of Boston, 91 Mass. (9 Allen) 393; Douglas v. Kansas City, 147 Mo. 428, 48 S. W. 851; Florida Cent. & P. R. Co. v. City of Columbia, 54 S. C. 266, 32 S. E. 408. 660 Board of Council of Harrodsburg v. Renfro, 22 Ky. L. R. 806, 58 S. W. 795. In this case the defend 406. How payable and use of moneys. The authority granting the license in the first instance may provide the manner and the time 62 of its payment, and also the use to which the moneys derived shall be put. 663 Such pro ant had paid $700 license tax on his saloon when the ordinance provided that license fees should be $600 save on Main street, where defendant's saloon was situated and on that street the license fee should be $900. Defendant sues for $100. The court say: "The whole spirit of the constitution is that all laws shall be uniform within the limit of the law making power and especially that all taxation shall be equal and uniform within the territorial limits of the authority levying the tax. The state legislature is prohibited from enacting local and special legislation. It cannot be that the council of one of our cities can enact local or special legislation to apply to a part of the territory, or to a special person within the limits of such city. All persons are guaranteed the equal protection of the laws and no grant of exclusive privileges can be made to any person, except in consideration of public services. We are clearly of the opinion that the ordinance fixed the license fee at $600 and no more. The provision or exception as to Main street was special and local legislation and is invalid. The council could have made the license for the city at $900 but, if it had done so, it could not have then excepted business not State Board of Education v. City of conducted on Main street and pro- Aberdeen, 56 Miss. 518; State v. Ivided that such business not Main street should pay only $600. This would have been equally objectionable. The charter of a municipal corporation is a delegation of powers to its governing authority by the legislative branch of the government and no powers will be` presumed to have been granted that are not mentioned or necessarily included in a general grant of power. Certainly a power that the legislature itself cannot exercise will not be presumed to be granted to a municipal corporation. It appears from the answer and counterclaim that appellee had paid $100 in excess of the license fee. He was entitled to recover same from the city." Bruner v. Town of Stanton, 102 Ky. 459. 661 Rountree v. Wood, 132 Ala. 584, 31 So. 451; Powers v. Town of Decatur, 54 Ala. 214. A note for the price of a liquor license may be taken instead of cash and if unpaid at its due date, an action of assumpsit may be maintained by the municipal corporation against the mak er. Williams v. Com., 76 Ky. (13) Bush) 304; State v. Administrator of Finance, 27 La. Ann. 493. on 662 State of Aitken, 61 Neb. 490, 85 N. W. 395. The payment in advance of an occupation tax cannot be made a condition precedent for the obtaining of the license, citing and following State v. Wilcox, 17 Neb. 219; State v. Bennett, 19 Neb. 191. 663 State v. Forkner, 70 Ind. 241; Leidtke, 12 Neb. 171; King v. State, 50 Neb. 66, 69 N. W. 307; German- |