
    State of Nebraska v. James H. Green.
    [Filed June 27, 1889.]
    1. Criminal Law: Civil Liability. A village has authority to levy a reasonable occupation tax which conforms to the requirements of the constitution and. statute; but such tax is a mere civil liability to be collected by levy and sale of property and not by arrest and imprisonment.
    2. -: License: Takes. Where it is necessary to license a traffic — as the sale of intoxicating liquors — or a particular kindof business which if not licensed and regulated may be used to defraud individuals or the public, the right to punish by imprisonment for a failure to pay the license fee and take out license is unquestioned, because such power is necessary for the preservation of order and welfare of society, but this power does not apply to a mere occupation tax.
    Exceptions from Cass county, Chapman, J., presiding. Filed under the provisions of section 515, Criminal Code.
    
      
      J. H. Haldeman, for the state.
    
      T. B. Stevenson, for defendant.
   Maxwell, J.

The defendant in error was arrested for violating an ordinance of the village of Elmwood, in Cass county, by failing to pay an occupation tax, and on the trial before a justice of the peace of that village was found guilty and sentenced to “ pay a fine of $10 and pay the costs of this suit, taxed at $--, and be committed to the jail of the county until said fine and costs are paid.”

Green appealed to the district court of Cass county, where on his motion the proceeding was dismissed. The attorney who appeared for the village thereupon obtained the consent of the attorney of Cass county to appear for him in the supreme court in order to settle the law of the case, and thereupon obtained leave from this court to file a petition in error.

The transcript of the justice contains all the proceedings and is quite lengthy. The complaint, as it appears therein, is as follows:

“The complaint of S. D. Eells, of said county, made before me, ¥m. Deles, a justice of the peace within Stove Creek precinct, in said village and county of Cass, state aforesaid, who, being duly sworn, deposes and says: That on the 1st day of June, A. D. 1888, in said village of Elmwood and said county, one James H. Green did then and there wrongfully and unlawfully engage in, carry on, and maintain the business and occupation of keeping a drug store and dealing in drugs without having first paid the occupation tax of $3.00 fixed and provided by ordinance number 3 of said village, and without first having otherwise complied with the provisions of said ordinance, being an ordinance entitled ‘An ordinance to raise a revenue, and levy, define, and provide for the collection of a tax on business professions and occupations in the village of Elmwood, Nebraska/ which ordinance provides that any person, firm, association, company, or corporation who shall carry on and maintain a business of keeping a drug store in said village without having first paid the said tax of $3.00 as fixed by said ordinance, and complied with all provisions of said ordinance, shall forfeit and pay the sum of not less than $10.00 and not more than $25.00 for every five days that the provisions of said ordinance shall be so violated; that said James H. Green has for more than five days from the 25th day of May, 1888, the time said ordinance took effect, violated the provisions of said ordinance, and neglected and refused to pay the tax fixed by said ordinance; that said ordinance was passed and approved the 21st day of May, 1888, and duly published in the Elmwood Echo, a newspaper of general circulation and published in said village on the 25th day of May, 1888, and by the provisions thereof said ordinance took effect at the time of its passage, approval, and publication. Further affiant saith not.
“S. D. Eells.
“Subscribed in my presence and sworn to before me this 10th day of August, 1888. Wm. Deles,
Justice of the Peace.”

No copy of the ordinance appears in the record. It is impossible for this court to determine whether or not the village authorities of Elmwood have properly exercised the power conferred upon them. In that portion of the ordinance set out in the complaint there is no allegation that the punishment for a failure to comply with the ordinance is imprisonment. In fact we are led to infer that the proposed punishment was by a penalty for each five days in which there was a delay-of payment. There is but little doubt of the power of the village to impose a reasonable occupation tax which conforms to the constitution and statute. Such taxes, however, are to be collected by levy and sale like any other tax, and not by imprisonment.

"Where it is necessary to license a traffic as that of the sale of intoxicating liquors or a particular kind of business which, if not licensed and regulated, may be used to defraud individuals or the public, the right to punish by imprisonment for a failure to pay the license fee and take out license is unquestioned, because such power is necessary for the preservation of the order and welfare of society, but the mere collection of revenue cannot be done in this manner. The proceeding against Green by arrest was unauthorized, and he could not be imprisoned for a mere failure to pay a tax on his business. The judgment of the district court, therefore, is right, and is affirmed.

Judgment affirmed.

The other Judges concur.  