"If, as we believe, it is a conceded point, that the owners of lands, buildings and all property of this description, must yield up that property for public use, upon compensation, how is it, that property of this kind claims a higher privilege, or is guarded by a stronger force? If any property ought to be peculiarly guarded, it certainly is not that which is merely a matter of dollars and cents, but it should be the homestead, the fireside, the place where the owner has enjoyed his domestic comforts, and where he hopes to spend his declining years; and yet this must be yielded to public exigencies. The one, it is said, is holden directly by grant of the legislature, and to take it away is impairing the contract. But are not all our lands held under a grant from the legislature, directly or indirectly? . . The right (of eminent domain) rests upon the principle, that individual interests must be subservient to that of the public, and that they must yield, when public necessities require." In many cases it has been held that where the exercise of the right of eminent domain is invoked, this is conclusive evidence of the acceptance of a benefit from the public and such acceptance carries its obligation to the public which grants the benefit.

60.

22 Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 17 Conn. 40,

CHAPTER XVI.

LICENSING OF BUSINESSES.

§ 83. License imposed by federal law.

84.

Distinction between license and franchise.

85. Privileges in license not those in franchise.

§ 83. Licenses Imposed by Federal Law.-Business in its primary aspect is carried on in states and under their laws. But the general government may impose taxes thereon and as a means of collecting its revenue prevent businesses from being carried on. It is only by payment of these taxes that licenses or permits are issued. "But these licenses give no authority. They are mere receipts for taxes."" Such a license is no bar to prosecution under a state law prohibiting the sale of intoxicating liquors. These licenses in no way interfere with the police power of states in the regulation of any business situated therein, the state having the identical power with regard thereto, whether the business be required by the general government to pay a license tax or not. Licenses, therefore, required by Federal law have but a single aspect, that is to say, they are features merely in a revenue statute. As to regulation of business by virtue of the commerce clause of the constitution that is treated infra.

$ 84. Distinction Between License and Franchise. While both license and franchise emanate from the

1 License Tax Cases, 72 U. S. (5 Wall.) 462, 472, 18 L. Ed. 497.

2 Pervear v. Com., 72 U. S. (5 Wall.) 475, 19 L. Ed. 608,

3 Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223.

4 Chapter XXIX.

state directly or indirectly, yet in common understanding they greatly differ. Thus a franchise is a special privilege conferred upon individuals or corporations not the subject of common right. A license may be imposed even on the carrying on of business under a franchise, or on an occupation in which it is of common right in which any one may be engaged." "The power of the state to authorize the license of all classes of trades and employments cannot be doubted," but it may hardly be contended that there is any such power to grant a particular person particular or special rights in ordinary trades and employments. A franchise lies in grant and may involve governmental right of regulation. License is itself a form of regulation for benefits conferred by the public to everyone of a class. As for example on owners of vehicles, because they wear out the streets, or on pawnbrokers, because as to them the supervising power of the police is necessary. Finally, it may be said that licenses are imposed, whether for regulation or for revenue, referable either to the power of taxation or to the police power. "No inhibition arises against the imposition of a license fee upon an occupation on the sole ground that the fee was laid as a tax for the purposes of revenue" for "it is an attribute of sovereign power to enact laws for the exercise of such restraint and control over the citizen and his occupation as may be necessary to promote the health, safety and wel

Bank of Augusta v. Earle, 38 U. S. (13) Pet.) 519, 10 L. Ed. 274. Wiggins Ferry Co. v. East St. Louis, 102 Ill. 506; Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370, 19 S. W. 1053.

7 Howland v. Chicago, 108 Ill. 496.

8 Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Ret. 85. Marmet v. State, 45 Ohio St. 63, 12 N. E. 463.

fare of society. This power is known as the 'police power.' In its exercise the general assembly may provide that any occupation which is the proper subject of the power may not be pursued by the citizen, except as authorized by a license issued by public authority so to do.''10 A license may place restrictions on the conduct of business; a franchise is the grant of the right to do business at all.

$85. Privileges in License Not Those in Franchise. -The exercise of a franchise to do business may be conditioned upon the granting of a license therefor. Thus it has been said by Justice Field that: "The privilege of exercising the franchises of a corporation within a state is generally one of value and often of great value. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. As the granting of the privilege rests entirely in the discretion of the state whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions pecuniary or otherwise, as the state in its judgment may deem most conducive to its interests or policy.'

9911

It was said in a Washington case, that: "The right (of a boom company) to occupy such (floatable) streams and to charge tolls for booming logs and timber seems to follow, without any uncertainty, the recognized designation of a franchise, while a license fee upon this right is an excise upon the right of the

10 Price v. People, 193 Ill. 114, 61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306.

11 Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 288, 12 Sup. Ct.. 163, 35 L. Ed. 994. See also State v. Ry. Co., 128 Wis. 449, 108 N. W. 594.

corporation to be, and is entirely distinct from the right to do,"12 that is to exercise its franchise. "Nothing can be more certain in legal decision than that the privileges and franchises of a private corporation . . . may be taxed by a state for the support of the state government.""13 It would seem to make little difference, in legal effect, whether the license was imposed for revenue or regulation, or whether the state absolutely forbade any transaction of business prior to its payment, or added a penalty or did not add a penalty for non-payment, as in either event, the issuance of the license was the conferring of a privilege. But it is a privilege conferred upon such terms as the state sees fit to impose as said supra by Justice Field, and need have no relation whatever to the uses for which a corporation was formed or to its franchise subjecting it to regulation generally. That matter is wholly apart or might be. One thing may be wholly independent of the other and usually is. The contract feature in a franchise to a corporation, even admitting that it might be protected against impairment, nevertheless is subject to a privilege tax to do business, so held as to a corporation having a franchise to use or occupy the public streets of a city for a public purpose. The distinction, therefore, between privilege under license and that under franchise is one referable to wholly different principles. It has indeed, been said that: "The fact that a license is required

14

12 Chehalis Boom Co. v. Chehalis County, 24 Wash. 135, 138, 63 Pac. 1123.

13 Society for Savings v. Coite, 73 U. S. (6 Wall.) 594, 18 L. Ed. 897.

14 North Jersey St. Ry. Co. v. Jersey City, 73 N. J. L. 481, 63 Atl.

833.