
    Wiltse & Pratt v. The State.
    1. Pnrvirjs&E. Constitutional sense of.
    
    The word “privilege” in the Constitution of 18V0, is used in the same sense as in the Constitution of 1834, as ascertained by judicial construction. .
    2. Same. Heal estate broker.
    
    The occupation of a real estate broker is subject, under the Constitution to taxation as a privilege.
    EROM HAMILTON.
    This was a motion for a writ of error and supersedeas, to the Circuit Court, to revise the judgment of that court, March Term, 1873. Jno. B. Hoyle, J.
    Jno. Baxter for petitioner,
    filed the argument of J. S. Wiltse, as follows:
    I take the ground that the practice of the business of any occupation, is not such a privilege as to be taxable under the Constitution and Bill of Bights, because it is my right to do it. I refer to the lawful definition of a “privilege” as laid down in Bur-rill’s Law Dictionary — “being that around which the law throws some peculiar protection ” unusual and special. The word privilege has a certain signification in law, and the same must hold unless the context shows something different: See State v. Smith, 5 Hum., 394.
    I find no good reason in the decision of the Supreme Court in Mabry v. Tarver, or State v. Tarver, where it is held that the Legislature may make anything a privilege by taxing it, or saying that he shall not practice it who does not pay for it. It could only have been rendered in view of the clause in the Constitution prohibiting the granting of privileges. This very decision admits that my occupation, or any other man’s occupation, when not opposed to public policy, is only a privilege, and so taxable by the operation of the taxing statute. It therefore follows, that. I had a right to do it before, and I can not constitutionally be taxed, or else that the taxing power of a Legislature is an absolutely unlimited power and prerogative, and there are no such things as constitutional limitations. To hold this is against law and public policy. The other must in reason and right be held..
    The statute found us, when it was enacted — doing the thing it seeks to prohibit or tax. I had in it a vested right. The Legislature had no constitutional power to deter me from it: Sedgwick on Constitutional Law, 511.
    A Legislature can not select any specific property as the subject of taxation, and assess the owner distinctly from his equal share of tax as required of all persons. No more should it, if it has power to tax an occupation not opposed to public policy, (not admitted) tax one man’s occupation and not another’s.
    The statute imposes or seeks to impose a tax that is not “equal and proportionate,” and so also is unconstitutional : Sedgwick, 504. It imposes “ excessive fines,” and so also violates constitutional provisions.
    Attorney-General Heiskell for the State.
    Lewis Shepherd for Hamilton county.
   Nicholson, C. J.,

delivered the opinion of the Court.

This is an application for a writ of error, petitioners being real estate brokers at Chattanooga, failed to pay the tax and take out license for the privilege of prosecuting the business of real estate brokers, as required by the Code. The Clerk of the County Court issued a distress warrant, and had the same levied— whereupon petioners obtained writs of certiorari and supersedeas, and removed the cause to the Circuit Court of Hamilton county. Upon motion, at the March Term, 1873, the petition was dismissed and judgment rendered.

The only ground on which the writ of error is applied for — is, that the act of Assembly imposing the tax upon the occupation of a real estate broker as a privilege, is unconstitutional. The Legislature is left unrestricted by the Constitution, as to the manner in which privileges shall be taxed: Const, art. 2, sec. 28. Since the case of Mabry v. Tarver, 1 Hum., 94, a privilege has been held to be “a license to do anything which is prohibited by the general law.” Among the occupations and transactions, which by the general law are not to be pursued without license, is that of a broker of real estate: Code, 550.

The Constitution of 1870 retained the clause as to the taxation of privileges which- was found in the Constitution, and we have held more than once, that it is to be presumed that the word privileges was adopted and retained in the Constitution of 1870, in the sense in which it was used in the Constitution of 1834, as ascertained and settled by judicial interpretation.

Following these adjudications as conclusive of the question, there was no error in the action of the Circuit Judge in dismissing the petition, and therefore we refuse the application for writ of error.  