
    The Globe Security & Loan Co. v. Carrel, Auditor. The Cincinnati Collateral Loan Co. v. The City of Cincinnati et al. The Beneficial Loan Society v. The City of Cincinnati et al. The Welfare Loan Co. v. Carrel, Auditor. The Citizens Mortgage Loan Co. v. Carrel, Auditor.
    
      Licenses — Regulatory or revenue measures — Loans on chattels or wages — Sections 6346-1 and 6346-2, General Code — Powers of municipal corporations — 'Excise or occupational tax.
    
    1. The provision of Section 6346-1, General Code, making it “unlawful for any person * * * to engage * * * in the business of making loans * * * upon the mortgage or pledge of chattels or personal property * * * or making loans on salaries or wage earnings * * * without first having obtained a license,” is a regulatory as distinguished from a revenue measure.
    2. The provision of Section 6346-2, General Code, “no other and further license fee shall be required from any such licensee, by the state or any municipality,” while restricting the state and the municipalities of the state from exacting further license 'fees in the regulation of such business, in no way restricts the state or the municipalities from levying an excise tax upon the business of such licensee as a revenue measure. (State, ex rel., v. Carrel, Aud., 99 Ohio St., 220, approved and followed.)
    (Nos. 17212 to 17216
    Decided November 21, 1922.)
    Error to the Court of Appeals of Hamilton county.
    
      The Globe Security & Loan Company, plaintiff in error in Cause No. 17212, filed a petition in the court of common pleas of Hamilton county, Ohio, of which the following is a copy:
    “Now comes The Globe Security & Loan Company, and says that it is a corporation organized under the laws of the State of Ohio, and engaged in doing business and making loans on chattel mortgages at its place of business in the city of Cincinnati, Hamilton county, Ohio, and that in conformity with the laws of Ohio it did, on or before the first day of March, 1920, pay to the superintendent of banks of the State of Ohio, a fee of one hundred ($100) dollars, and obtained from said superintendent of banks of the State of Ohio, a license to engage in the chattel loan business for the year beginning March 1, 1920, and expiring February 28, 1921.
    “Plaintiff says that the defendant, George P. Carrel, is the duly elected, qualified and acting auditor of the city of Cincinnati, Hamilton county, Ohio. Plaintiff further says that on the twentieth day of August, 1920, the council of the city of Cincinnati, State of Ohio, passed an ordinance number 312-1920, ‘to levy an annual occupational tax upon persons, organizations of persons, firms and corporations carrying on certain trades, professions, occupations and businesses in the city of Cincinnati, by amending Sections 812-1 to 812-15, both inclusive, of the Code Ordinances of the city of Cincinnati.’ That said ordinance, under schedule two, provides as follows:
    “ ‘Brokers’ (chattel mortgages) — every person, association of persons, firm or corporation engaged in the business of lending or advancing money (or negotiating for the loan or advance of money) or of securing chattels or by a mortgage shall pay an annual tax of one hundred ($100) dollars. Also,
    “ ‘Brokers’ (industrial loans) — every person, association of persons, firm or corporation engaged in the business of loaning money on plain notes or personal security at legal rates, other than a national or state bank, to be paid in weekly or monthly or other periodical installments, shall be deemed an industrial loan company, or Morris Plan Bank, and shall pay an annual tax of ($150) one hundred and fifty dollars. Also,
    “ ‘Brokers’ (salaries) — every person, association of persons, firm or corporation engaged in the business of loaning or advancing money or negotiating for the loan or advancement of money or assignment of salaries or wages due or to become due, shall be known as a ‘salary broker’ and shall pay an annual tax of one hundred ($100) dollars.
    “That said ordinance aforesaid provides that the taxes provided for therein shall' take effect as to all provisions thereof in so far as the same relate or apply to the trades, professions, occupations or businesses mentioned in schedule two in Section 812-1 thereof from and after the first day of November, 1920, and that the annual taxes provided for in schedule two of Section 812-1, thereof, shall be payable in semi-annual installments, in advance, between the first and fifteenth days of May and November of each and every year, commencing with November, 1920.
    “Plaintiff further says that said ordinance of the city of Cincinnati in so far as it purports to provide an occupational tax or license for the occupation or business of loaning money on chattel mortgages or assignment of wages, is unconstitutional or void.
    “The defendant, George P. Carrel, as auditor of the city of Cincinnati, is taking steps and preparing to collect said tax against the plaintiff. Plaintiff states that it has no adequate remedy at law and asks the court that a temporary order issue restraining the defendant from collecting said occupational tax as aforesaid, and that upon final hearing said temporary injunction be made permanent; and plaintiff prays for all other relief to which it may be entitled in the premises.”
    The plaintiffs in error in the other'cases filed similar petitions in the common pleas court, to each of which petitions a general demurrer was filed by the city solicitor, each of which demurrers was sustained by the court of common pleas, and the plaintiffs not desiring to plead further final judgments were rendered against them. Error was prosecuted to the court of appeals where the judgments of the court of common pleas were affirmed, from which affirmances error is prosecuted here.
    
      Messrs. McCauley & Simmonds; Mr. Burton E. Robinson; Messrs. Buchwalier, Headley & Smith; Mr. Ralph E. Clark and Mr. Sanford Brown, for plaintiffs in error.
    
      Mr. Saul Zielonka, city solicitor, for defendants in error.
   Robinson, J.

The power of the city of Cincinnati to enact an occupational tax ordinance has been declared by this court in the case of State, ex rel., v. Carrel, Aud., 99 Ohio St., 220, the court having there held:

“1. The State of Ohio, under the provisions of Section 10, Article XII of the Constitution, has authority to levy excise taxes in the form of an occupational tax.
“2. Under the grant of power of local self-government provided for in Section 3, Article XVIII of the State Constitution, the city of Cincinnati, as long as the State of Ohio through its general assembly does not lay an occupational tax on businesses, trades, vocations and professions followed in the state, may raise revenue for local purposes, through the instrumentality of occupational taxes.”

The legislature of Ohio by the enactment of Section 6346-1, General Code, has provided: “Sec. 6346-1. It shall be unlawful for any person * * * to engage, or continue in the business of making loans * * * upon the mortgage or pledge of chattels or personal property of any kind, or of purchasing or making loans on salaries or wage earnings * * * at a charge or rate of interest in excess of eight per centum per annum, including all charges, without first having obtained a license so to do from the commissioner of securities and otherwise complying with the provisions of this chapter.” Section 6346-2, after providing for the payment of a “license fee,” has provided that such “license fee shall include the entire cost of inspection or inspections for a period of one year” and that “no other and further license fee shall be required from any such licensee, by the state or any municipality, nor shall any fees charged be collected under Section 736_ of the General Code.” It has further provided for the mode of securing the license and for the execution of a bond to the state of Ohio to secure the observance of the provisions of the act, and has provided that the commissioner of securities shall annually, at least, investigate the business of the licensee. It has enjoined upon the commissioner of securities the duty of prosecuting violators of the act; has in fact*through the commissioner of securities undertaken to regulate the business of such licensee and has undertaken to require the payment of the expense of such regulation of the licensee by the exaction of an annual license fee.

The record does not disclose the number of licenses issued by the state, or the number of agents and assistants employed by the commissioner of securities, or the ¿xpense of that department. The court, therefore, is without the necessary facts to determine whether the revenue secured by the state from such license fees is in excess of the expense of carrying out the provisions of the act. But were these facts disclosed by the record, this court would not with exact nicety make a comparison of the necessary expenditure by the commissioner of securities with the sum of the fees exacted, but would be governed by the purpose of the enactment rather than by the result which its enforcement discloses.

This court in the case of State v. Hipp, 38 Ohio St., 199, has thus defined a license: “ A license is permission granted by some competent authority to do an act which, without such permission, would be illegal.”

Accepting this definition, the legislature enacted Section '6346-1 et seq., and this court, adhering to that definition, and being further influenced by consideration of the regulatory provisions of that and the following sections, is of opinion that the fee exacted by the enactment is literally a license fee; that the legislature in the enactment of the provision “no other and further license fee shall be required from any such licensee, by the state or any municipality, nor shall any fees charged be collected under Section 736 of the General Code” used the words “license fee” advisedly, and in the sense above indicated; and that its limitation upon the further activities of state and municipalities with reference thereto is confined to the particular scope of the act itself and prohibits the state and municipalities from exacting other and additional license fees, but extends no further.

The ordinance involved in this case, in so far as its provisions are disclosed by the record, does not attempt to make the business unlawful, or to regulate the manner of its operation, or to confer upon the person engaged in the business any privilege, but, on the contrary, assuming the right of persons to engage in the particular line of business, it imposes a tax upon such business, the payment of which is not a prerequisite to the right to engage in such business, any more than the payment of any other excise tax is a prerequisite to the right of a person to engage in the particular business taxed.

We find no conflict between the provisions of Section '6346-1 et seq. and the ordinance of the city of Cincinnati as disclosed by the record.

The judgment of the courts below is affirmed in each case.

Judgments affirmed.

Hough, Wanamaker and Matthias, JJ., concur.

Clark, J., took no part in the consideration or decision of the case.  