
    CITY OF ST. LOUIS v. McCANN, Appellant.
    Division Two,
    June 26, 1900.
    1. Deal Estate Agent: license. The city of St. Louis has authority to require an occupation license tax from those persons who undertake to conduct a real estate business within the city, and to impose a fine upon such of them as conduct such a business without a license to do so.
    2. -: -: OCCUPATION TAX: GAINS OE ONE’S INDUSTRY: CONSTITUTION. The Constitution guarantees to every one the right to “the enjoyment of the gains of his own industry,” but this is not an absolute right, hut is subordinate to the police powers of the State. Therefore a person who undertakes to conduct a real estate business in St. Louis must he held to do so subject to the power of the city to require him to pay a license tax for the privilege of carrying on such business, and in such case it is immaterial that the . tax is against the occupation and not against property.
    Appeal from St. Louis Court of Criminal Correction. — Mon. David Murphy, Judge.
    AKKIRMED.
    
      John J. McOann per so.
    
    (1) There never was moral merit in actions of this sort at any place or in any period of tbe world. There is no legal merit for such in this age and State. The prosecution herein is grossly lawless, predatory and destructive of the natural right of defendant given him by Cod, and for the conservation and security of which to him as to the like right of all persons in the State, government in the State was organized. It is time, at this stage of enlightenment and civilization and in this free republic, either that methods for raising revenue typified by the ordinance declared upon herein cease, or that government itself shall perish. The action should be summarily dismissed. Citizens’ Sav. & Loan Ass’n, v. Topeka, 87 U. S. 656; Butchers Union Go. v. Orescent City Co., Ill U. S. 757; State v. Addington, 12 Mo. App. 221; Same v. Same, 77 Mo. 110; Barbour on the Rights of Persons, secs. 8 and 102 to 105; Black. Com., Introduction, sec. 41. (2) The people of Missouri, by their Oonstitution, adopted in 1875, and since maintained, declared in their Bill of Rights, section 4, that all persons have a natural right to life and liberty, and that the State shall, as its principal duty, protect that right at the peril of its dissolution as a government institution; life and liberty can not be, without labor that life may be, choice that liberty may be; and herein this great mandate but voiced the natural and divine ordinations; the rights so secured are thereby placed above the rights of government itself, yet, strange to say, they are, throughout the State, with the club of the criminal arm of its institutions to aid, habitually distrained, under false pretenses, for alleged revenue purposes. Oon-stitution, art. 2, sec. 4; St. Louis Charter, art. 3, sec. 26; R. S. 1899, secs. 7764 to 7766. (3) The early adoption by the United States and Missouri, of slave constitutions and common-law rules, was in direct denial of the earlier declaration and later Missouri doctrines; there was under the early fundaments no protection to the life or liberty of any individual in the United States or in Missouri, except such as was afforded by English law; the sole protection to them thus afforded was by the English statute, incorporated with slight verbal changes into the' United States • and Missouri Constitutions, that “No person should be deprived of life, liberty or property without due process of law,” which left these rights at the behoof of every legislative body in the jurisdictions of England, the United States and Missouri. The early United States and Missouri courts decided accordingly, whence the antique “legal precedents” contained in our published law reports, and whence the “selling” of ne-groes and the “licensing” of white men below the rant of the common-law “gentleman.” E. S. 1825, p. 491; 1 Kent. Comm., sec. 473; Dunlops’ Dig. U. S. Gen. Laws, p. 71; Wheaton v. Peters, 8 Pet. 658; Baker v. Crandall, 78 Mo. 587; 12 How. 36; 13 How. 268; Barron v. The Mayor et al., 7 Peters, 443; Mo. Con. 1825, art. 13, sec. 9; State v. Julow, 129 Mo. 174; State ex rel. Wyatt y. Ashbrook, 154 Mo. 375; Wynehamer v. People, 3 Kern, 378; Freeland v. Williams, 131 H. S. 405; Murry’s Lessees v. Hoboken Oo., 59; Cooley, on Taxation, secs. 47 to 53 and 297 to 305; Cooley on Constitution (5 Ed.), sec. 1789 and notes; Scott y. Sanford, 60 U. S. 393; Austin v. State, 10 Mo. 591; Simmons v. State, 12 Mo. 268; Nathan v. Louisiana, 49 U. S. 73. (4) The English common law, so early incorporated into and as the supreme code of our jurisprudence, is irreconcilable with the principles of the Declaration of Independence and the Missouri 1865 and 1875 Bill of Eights. The “fundamental articles” of the “free constitution” that served as the basis of that common law, were periodical written documents, signed by the kings, setting forth, first, the kings’ majesties, greatnesses and goodnesses, and usually ending with promises to refrain from the indiscriminate exercise of their royal prerogatives of killing, robbing and jailing the subjects, of whom “the greater part were at one time in a state of vassalage;” whence again the legal precedents referred to in the preceding pages; and whence the Hnited States Constitution makers’ open denial of the doctrine of the Declaration of Independence and rejection of it from the Constitution. 1 Black Comm., secs. 127, 128, 129; Magna Charta, 1 Pick. Stat. at Large, England, p. 1; Petition of Eight, Sel. Chart. Eng. Con. His. Appendix; Habeas Corpus (England) Act; Bill of Eights and Act of Settlement, 9 Pick, supra, 67 to 73 and 357 to 360; 1 Washburn on Real Prop., sec. 26; Table of Precedence, England, Black Com., book 2, secs. 402 to 407. (5) The decisions of the United States, Missouri and sister State courts throughout the Union, since 1865, have overthrown the proposition that life or liberty can be taken “by due process of law,” except in punishment for crime, and have proposed, if not affirmed, that life and liberty and their functions are held by the people absolutely immune from forfeiture, impairment, or abridgment, openly, or by stealth, by any power, public or private, except for. the violation of the life or liberty of a fellow-being. Adam Smith’s Wealth of Nations, book 1, chap. 10; County of Mateo v. South. Pac. R. R., 13 Fed. Rep. 722, 741, 774, 778; Woodbridge v. troit, 8 Mich. 301; Burrows on Taxation, chap. 5; Cummings v. State, 4 Wall. 325; In re Peter Jacobs, 98 N. Y. Rep. 98 to 115; State v. Town of Readington, 36 N. J. L. 70; Cooley on Const. Lim., p. 48; State v. Beattie, 16 Mo. App. 131; State ex rel. v. Sergeant, 12 Mo. App. 228; Crow v. State,. 14 Mo. 279; St. Louis v. Titz, 53 Mo. 584; State v. Berkley, 92 Mo. 41; State v. Fisher, 52 Mo. 177; Morse v. Westport, 136 Mo. 276; State ex rel. v. Millér, 100 Mo. 449; St. Louis v. Bowler, 94 Mo. 635.
    
      B. Schnurmacher for respondent.
    (1) The State in the absence of constitutional inhibition, has the undoubted power to tax all professions and occupations. St. Louis v. Laughlin, 49 Mo. 559; Simmons v. State, 12 Mo. 268; Cooley on Taxation, p. 570; Tiedeman’s Limitations of Police Power, sec. 101. (2) This power the State may delegate to its municipalities. St. Louis v. Stern-berg, 69 Mo. 289; St. Louis v. Laughlin, 49 Mo. 559; St. Louis v. Ilerthel, 88 Mo. 128; Union Ex. Co. v. St. Joseph, «66 Mo. 680; St. Louis v. Weitzel, 180 Mo. 619; Dillon’s Mun. Corp., sec. 791; 26 Am. and Eng. Ency. “Taxation,” 482. (8) Tbe State has delegated its power in this respect to tbe city of St. Louis, by article 3, section 26, paragraph 5, of tbe Charter, wbicb authorizes tbe mayor and municipal assembly “to license, tax and regulate undertakers, dentists, auctioneers.real estate agents.” (4) Tbe ordinance in question is a valid exercise by tbe city of St. Louis of tbe power thus conferred upon it. St. Louis v. Ereivogel, 95 Mo. 533; St. Louis v. Bowler, 90 Mo. 630; St. Louis v. Herthel, 88 Mo. 128; St. Louis v. Sternberg, 69 Mo. 289; St. Joseph v. Ernst, 95 Mo. 360.
   BURGESS, J.

This action was begun in tbe city of St. Louis, August 24, 1897, by summons from tbe first district police court of that city. Tbe charge was that defendant conducted a real estate business in said city in 1896 and 1897 without having a license to so do, contrary to sections 1480, 1481 and 1482, article 8, chapter 38, entitled “Eev-enue,” of the Eevised Ordinances of said city, approved April 7, 1893.

The sections referred to read as follows:

“Section 1480. — Every person or firm composed of one or more persons, who shall act as agent for any party in tbe leasing, renting or selling of bouse or real estate at private or public sale, or who shall receive or collect rents for another for a commission or other compensation, orwbo shall advertise or bang out any sign or device which shall designate him as an agent for tbe renting, collecting rents, leasing or selling of bouses or real estate shall be considered as (a) bouse or real estate agent (s).
“Section 1481. — A real estate 'broker is one who • for commission or other compensation is engaged in the selling - of or negotiates sales of real estate belonging to others,
“Section 1482. — Every person or firm of one or more persons engaged in the business defined in tbe foregoing sections shall pay an annual license of twenty-five dollars, wbicb shall be payable before any such person or firm shall be permitted to transact any business; and if such person or persons fail to pay said license, then he or they shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than two hundred dollars.”

The action was tried September 9th following, plaintiff proving that defendant conducted, a real estate business in said city without having a license to do so, as alleged in the complaint. Defendant demurred to the complaint and offered evidence tending to show that the taxing of his occupation was unnecessary as a revenue measure. His demurrer was overruled, his evidence excluded, and he was fined $100. He took an appeal to the St. Louis Court of Criminal Correction, and filed his affidavit and bond therefor forthwith. In the last named court, the case came for hearing on the 21st day of the same month, and defendant failing to appear, the judgment of the police court was affirmed by default. In due time he filed in the court last named, motions for new trial and in arrest of judgment.

In the motion to set aside the default, and for a new trial, it is assigned as cause therefor that the judgment was against the evidence, and against the law and the evidence.

The motion in-arrest of judgment set forth'that:

1st. The ordinance upon which the charge against defendant was founded, is in violation of and contrary to section 4 of article 2 of the Bill of Rights of the State Constitution.

2d. The facts set forth in the statement of the charge against defendant, do not constitute a public offense.

3d. Tbe evidence given at tbe default trial was insufficient to sustain tbe judgment against him.

4th. Tbe court bad no jurisdiction of tbe defendant in tbe cause, and tbe entire proceedings therein were unconstitutional, null and void.

Both motions were overruled. Defendant appeals.

As long ago as 1848, it was beld by tbis court in Simmons v. State, 12 Mo. 268, that tbe State possesses tbe power to tax all trades, professions and occupations. Tbe same rule was announced in St. Louis v. Laughlin, 49 Mo. 559, and in St. Louis v. Sternberg, 69 Mo. 289. In tbe case last cited it is said: “However tbis may bave been elsewhere -decided, tbe power of the State to tax all professions has remained unquestioned in tbis State, since the case of State v. Simmons, 12 Mo. 271, tbe principle of which was followed and approved in tbe case of tbe City of St. Louis v. Laughlin, 49 Mo. 559. We are not disposed to reopen tbe question, especially as we think it has been settled, not only in accordance with reason, but with tbe weight of authority.”

In State v. Smithson, 106 Mo. 149, it was said: “That the State has tbe right to require a license tax on different occupations is, we think, well settled both by State and Federal decisions.”

That such power may be, and frequently is delegated by the State to its municipalities is well settled by the following decisions of tbe Supreme Court: St. Louis v. Sternberg, supra; St. Louis v. Laughlin, supra; St. Louis v. Herthel, 88 Mo. 128; American Union Express Co. v. St. Joseph, 66 Mo. 675; St. Louis v. Weitzel, 130 Mo. 600; Dillon on Mun. Corp. (4 Ed.), secs. 791, 793.

By paragraph 5, section 26, article 3, of tbe charter of tbe city of St. Lotus, tbe power is delegated to tbe mayor and municipal assembly “to license and tax real estate agents,” and tbe ordinances in question having been passed in pursuance of such power, must be beld to be tbe valid exercise of such, power. [St. Louis v. Sternberg, supra; St. Louis v. Herthel, supra; St. Joseph v. Ernst, 95 Mo. 360; St. Louis v. Bowler, 94 Mo. 630; St. Louis v. Freivogel, 95 Mo. 533.]

But it is insisted that the ordinance is violative of section 4, of article 2, of the Bill of Rights of the State Constitution, which provides “that all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to' life, liberty and the enjoyment of the gains of their own industry; that to give-security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief design,” in that it deprives all persons who-come within its provisions of the enjoyment of the gains of their own industry.

This right, however, is not an absolute right, but is subordinate to the police power of the State. In speaking of this provision in the Constitution, in the case of State ex rel. v. Beattie, 16 Mo. App. 131, it is said: “The Constitution of this State, in the Bill of Rights, provides that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry.This of course,. does not confer upon any one the absolute right to use his property as he pleases. No such right exists in a state of civil society; but on the contrary, the right of one to use his-own must always be exercised in subordination' to the right-of others.The -same instrument provides that, ‘no person shall be deprived of life, liberty, or property, without due. process of law.’ Clearly, this provision was not intended to withdraw the rights of private property from the-reasonable exercise of the police power by the legislative-branch of the government. ‘All rights are held subject to-tbe police power of the State.’ Beer Co. v. Massachusetts, 97 U. S. 25.”

Tbe right of defendant to enjoy tbe gains of bis own industry derived from conducting a real estate business in tbe city, was subordinate to tbe power of tbe city to require all persons thus engaged to pay license tax, and it makes no difference in principle that tbe tax was against tbe occupation, and not against property. It was no violation of tbe Constitution.

Tbe judgment is affirmed.

Gantt, P. J., and Sherwood, J., concur.  