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 Library 
 
 
 IN THE 
 
 ST. LOUIS 
 
 Court of Criminal Correction. 
 
 CITY OF ST. LOUIS. 
 
 STATE OF MISSOURI, Plaintiff, 
 vs. 
 
 PARKER DISTILLING COMPANY, Defendant . 
 
 CHARGED WITH MANUFACTURING LIQUOR WITH- 
 OUT A LICENSE. 
 
 POINTS AND AUTHORITIES, ARGUMENT AND BRIEF 
 UPON BEHALF OF THE STATE, AS TO THE CON- 
 STITUTIONALITY OF THE ACT LICENSING THE 
 MANUFACTURE AND SALE OF INTOXICATING 
 LIQUORS, LAWS 1909, PAGE 654. 
 
 ELLIOTT W. MAJOR, 
 Attorney-General of the State of Missouri. 
 
 THE HUGH 8TEPHEN8 PRTG. OO., JEFFERSON CITY. 
 
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IN THE 
 
 ST. LOUIS 
 
 Court of Criminal Correction. 
 
 CITY OF ST. LOUIS. 
 
 STATE OF MISSOURI, Plaintiff, 
 vs. 
 
 PARKER DISTILLING COMPANY, Defendant. 
 
 CHARGED WITH MANUFACTURING LIQUOR WITH- 
 OUT A LICENSE. 
 
 POINTS AND AUTHORITIES, ARGUMENT AND BRIEF 
 UPON BEHALF OF THE STATE, AS TO THE CON- 
 STITUTIONALITY OF THE ACT LICENSING THE 
 MANUFACTURE AND SALE OF INTOXICATING 
 LIQUORS, LAWS 1909, PAGE 654. 
 
 STATEMENT. 
 
 This is a case of the State of Missouri vs. Parker Distil- 
 ling Company, wherein it is charged with manufacturing, 
 rectifying and selling intoxicating liquors in the State of Mis- 
 souri without first having procured a license so to do, under 
 
2 
 
 the provisions of the Liquor License Act, Laws 1909, page 
 654. This information was filed by Hon. Phillips W. Moss, 
 prosecuting attorney of the St. Louis Court of Criminal Cor- 
 rection. . 
 
 The defendant filed its motion to quash the information, 
 challenging the constitutionality of the act therein upon ten 
 grounds, five of which apply to the State Constitution and five 
 to the Federal Constitution. The sufficiency of the informa- 
 tion is not attacked. The prosecuting attorney of the 
 city of St. Louis, having called upon the Governor for the aid 
 and assistance of the Attorney- General, as is provided by 
 statute, it becomes and is my duty to act, in response to such 
 request and direction. 
 
 I, therefore, in opposition to the defendant’s motion to 
 quash, present, upon behalf of the State, the following argu- 
 ment and brief in support of the constitutionality of the act. 
 For the convenience of the court in passing upon the ques- 
 tions presented, the State prints in full the information and 
 the motion to quash.. 
 
 INFORMATION. 
 
 <l State of Missouri, 
 City of St. Louis. 
 
 ss. 
 
 In the St. Louis Court of Criminal Correction, St. Louis, 
 October 19th, 1909. 
 
 State of Missouri, Plaintiff, 
 vs. 
 
 Parker Distilling Company, Defendant. 
 
 Charged with Manufacturing liquor without a License. 
 Phillips W. Moss, Prosecuting Attorney, of the St. Louis 
 Court of Criminal Correction now here in Court, on behalf of 
 the State of Missouri, information makes as follows: 
 
3 
 
 That in the City of St. Louis, on the 18th day of October 
 1909, the Parker Distilling Company, was a corporation or- 
 ganized under and by virtue of the laws of the State of Mis- 
 souri, and was engaged in the business of manufacturing, rec- 
 tifying, selling and exposing to sale in this State intoxicating 
 liquors, the said intoxicating liquors not being wine or spirits 
 made from grapes or fruits grown in this State, and the said 
 Parker Distilling Company not being a dramshop keeper 
 licensed under the laws of this State ; without first and before 
 having secured a license to engage in said business, contrary 
 to the form of the Statute in such cases made and provided, 
 and against the peace and dignity of the State. 
 
 (Signed) PHILLIPS W. MOSS. 
 Pros. Attorney of the St. Louis Court of Criminal Correction.” 
 
 MOTION TO QUASH. 
 
 “In the St. Louis Court of Criminal Correction. 
 
 State of Missouri, Plaintiff, 
 vs. 
 
 Parker Distilling Company, a Corporation, Defendant. 
 
 Charged with manufacturing liquor without a license. 
 
 Comes now the defendant in the above entitled cause and 
 moves the court to quash the information heretofore filed in 
 the said cause, for the following reasons, to wit: 
 
 I. 
 
 That the act of the General Assembly of Missouri, ap- 
 proved June 1, 1909, and entitled “An act to license manu- 
 facturers and rectifiers of intoxicating liquors, and wholesale 
 and retail dealers in such liquors, except wines and spirits 
 produced from grapes or fruits grown in the State of Mis- 
 souri, and except social, commercial or other clubs, druggists, 
 pharmacists and licensed dramshop-keepers, and to provide 
 
4 
 
 penalties for a violation thereof,” upon which said informa- 
 tion is based is unconstitutional, inoperative and void ; because, 
 
 First: Said act is in violation of the provisions of sec- 
 tion 2 of article IV of the Constitution of the United States, 
 in that it denies to the citizens of other states the privileges 
 and immunities granted to the citizens of the State of Mis- 
 souri thereunder. 
 
 Second : Said act is in violation of the provisions of the 
 third clause of section 8, article I of the Constitution of the 
 United States, in that it attempts to regulate commerce be- 
 tween the several states and the State of Missouri. 
 
 Third: Said act is in violation of the second clause of 
 section 10, article I of the Constitution of the United States, in 
 that it attempts to levy an impost or import duty or tax on the 
 products of the several states coming into the State of Mis- 
 souri. 
 
 Fourth: Said act is violative of the Fifth Amendment 
 of the Constitution of the United States, in that it attempts to 
 deprive the citizens of the State of Missouri of their property 
 without due process of law. 
 
 Fifth : Said act is violative of section I of the Fourteenth 
 Amendment to the Constitution of the United States, in that 
 it is an attempt to abridge the privileges and immunities of 
 citizens of the United States ; and, further, in that it is an at- 
 tempt to deprive citizens of the several states and of the State 
 of Missouri of their property without due process of law ; and, 
 further, that it denies to those persons who come within its 
 provisions the equal protection of the law. 
 
 II. 
 
 That said act of the General Assembly of Missouri, ap- 
 proved June 1, 1909, entitled as above, is unconstitutional, in- 
 operative and void, because 
 
 First : Said act is violative of section 30, article 2 of the 
 Constitution of the State of Missouri, in that the enforcement 
 
5 
 
 thereof would deprive the defendant of his liberty and his 
 property, without due process of law. 
 
 Second : Said act is violative of section 28, article IV of 
 the Constitution of the State of Missouri, in that it contains 
 more than one subject; also, that the subject of the same is 
 not clearly stated in its title. 
 
 Third : Said act is violative of section 3, article X of the 
 Constitution of the State of Missouri, in that the tax levied 
 under the provisions of said act is not uniform upon the same 
 class of subjects within the territorial limits of the State. 
 
 Fourth: Said act is violative of section 4, article X of 
 the Constitution of the State of Missouri, in that all property 
 in the State subject to the tax imposed by the said act is not 
 taxed under the provision of said act in proportion to the 
 value of said property. 
 
 Fifth : Said act is violative of section 7, article X of the 
 Constitution of the State of Missouri, in that it undertakes to 
 exempt property from taxation in contravention of said con- 
 stitutional provision. 
 
 (Signed) JOHNSON, RULE & ALLEN, 
 
 Attorneys for Defendant.’’ 
 
6 
 
 POINTS AND AUTHORITIES. 
 
 I. 
 
 IN THE DISCUSSION OF THE CONSTITUTIONALITY 
 OF THE ACT, IT IS NECESSARY TO BEAR IN 
 MIND THE FACT, THAT THE TRAFFIC IN INTOX- 
 ICATING LIQUORS IN THE STATE OF MISSOURI 
 IS DECLARED BY LAW TO BE ILLEGAL. IT IS 
 NOT A PRIMARY, NATURAL OR FUNDAMENTAL 
 RIGHT, BUT IS AN OCCUPATION WHICH NO ONE 
 HAS THE RIGHT TO PURSUE WITHOUT A LI- 
 CENSE. 
 
 Beginning with the decision in the case of State vs. Aus- 
 tin, unto the present time, the appellate courts of Missouri 
 have universally held that no one has the primary right to sell 
 intoxicating liquors in this State. That such a vocation is not 
 a natural right, but is an occupation which may be pursued 
 when the person has first received the privilege or license so 
 to do from the State. That, when such license or permit is 
 given, it does not constitute a contract between the State and 
 the licensee, in which the latter has vested rights, but is sub- 
 ject, at all times, to the police powers of the State, and may be 
 revoked. 
 
 State vs. Austin, 10 Mo. 591. 
 
 State vs. Hudson, 13 App. 61. 
 
 Higgins vs. Talty, 157 Mo. 287. 
 
 State vs. Bixman, 162 Mo. 1. c. 21, 22, 23. 
 
 Black on Intoxicating Liquors, Secs. 51, 127, 128, 189. 
 
7 
 
 The liquor traffic is not recognized as a lawful business, 
 except as permitted and regulated by the statutes of the states. 
 It is not an occupation to which every man has a natural 
 right. It does not stand on the same level before the law as 
 those vocations affecting the trade and commerce of the coun- 
 try. The law has placed a bar-sinister upon the business or 
 occupation, and separated it from the natural rights, privi- 
 leges and immunities of the citizen. 
 
 Crowley vs. Christensen, 137 U. S. 86. 
 
 Justice Field, in delivering the opinion of the court in the 
 above case, among other things, said: 
 
 “The police power of the State is fully compe- 
 tent to regulate the business, to mitigate its evils or 
 to suppress it entirely. There is no inherent right 
 in a citizen to thus sell intoxicating liquors by retail ; 
 it is not a privilege of a citizen of the State or of a 
 citizen of the United States. The manner and ex- 
 tent of regulation rests in the discretion of the gov- 
 erning authority. That authority may vest in such 
 officers as it may deem proper the power of passing 
 upon applications for permision to carry it on and to 
 issue lincenses for that purpose. It is a matter of 
 legislative will only.” 
 
 The principles of law above announced apply equally to 
 manufacturers and wholesale dealers in intoxicating liquors 
 as to all others engaged in the traffic. 
 
 State vs. Finney, 178 Mo. 385. 
 
8 
 
 II. 
 
 ALL STATUTES REGULATING THE MANUFACTURE 
 AND SALE OF INTOXICATING LIQUORS ARE EN- 
 ACTED BY VIRTUE OF THE POLICE POWER OF 
 THE STATE. EVERY STATUTE, STATE OR FED- 
 ERAL, UPON THE SUBJECT WHICH HAS BEEN 
 HELD CONSTITUTIONAL, WAS SUSTAINED UP- 
 ON THE GROUND THAT IT WAS THE PROPER 
 EXERCISE BY THE LEGISLATURE OF THE PO- 
 LICE POWER OF THE STATE. 
 
 The authority vested in the Legislature to enact legis- 
 lation of the character of the legislative enactment of 1909, 
 and to impose license fees upon the occupation or business 
 is one which falls within the police power of the State. 
 Judge Gantt, in delivering the opinion of the court in the case 
 of State vs. Bixman, involving the beer inspection law, quoted 
 approvingly from the case of State ex rel. vs. Hudson, 78 Mo. 
 302, as follows : 
 
 “Such laws (i. e. license laws) are regarded as 
 police regulations, established by the Legislature for 
 the prevention of intemperance, pauperism and 
 crime, and for the abatement of nuisances, and are 
 not regarded as an exercise of the taxing power. 
 Pursuits that are pernicious or detrimental to public 
 morals may be prohibited altogether or licensed for 
 a compensation to the public/ ’ 
 
 Again, in what is known as the License Cases, decided in 
 the Supreme Court of the United States, 12 Law Edition, 
 page 314, Justice Grier said: 
 
 “It is not necessary for the sake of justifying 
 the State legislation now under consideration, to ar- 
 
9 
 
 ray the appalling statistics of misery, pauperism and 
 crime, which have their origin in the use or abuse of 
 ardent spirits. The police power, which is exclusive- 
 ly in the State, is alone competent to the correction 
 of these great evils, and all measures of restraint or 
 prohibitions necessary to effect the purpose, are with- 
 in the scope of that authority. There is no conflict 
 of power, or of legislation, as between the states and 
 the United States; each is acting within its sphere 
 and for the public good.” 
 
 Chief Justice Taney, in his opinion involving the license 
 cases above referred to, used the following language : 
 
 ‘ ‘ And if any state deems the retail and internal 
 traffic in ardent spirits injurious to its citizens and 
 calculated to produce idleness, vice or debauchery. I 
 see nothing in the Constitution of the United States 
 to prevent it from regulating and restraining the 
 traffic or from prohibiting it altogether, if it thinks 
 proper. Upon that subject, each state must decide 
 for itself. ’ ’ 
 
 These principles have been so often announced by the 
 State and Federal Courts they are now accepted by all with- 
 out challenge or dispute. 
 
 The police power is not susceptible of an exact unyield- 
 ing definition. Cyc., in volume 8, page 683, defines it as fol- 
 lows: 
 
 ‘ ‘ Police power is the name given to that inherent 
 sovereignty which it is the right and duty of the gov- 
 ernment, or its agents, to exercise whenever public 
 policy, in a broad sense demands, for the benefit of so- 
 ciety at large, regulations to guard its morals, safety, 
 health, order, or to insure in any respect such eco- 
 
10 
 
 nomic conditions as an advancing civilization of a 
 highly complex character requires.” 
 
 Judge Marshall, in expressing the opinion of the court in 
 the case of State ex rel. vs. Mercantile Company, 184 Mo. 1. c. 
 184, said: 
 
 “In the exercise of its police power the State 
 may pass any law which is designed to suppress or 
 punish a wrong, to mitigate an evil, to preserve the 
 peace, health, morals or order, and the general wel- 
 fare of the community. That no person has an ab- 
 solute right to engage in any business which contra- 
 venes these purposes.” 
 
 From its very nature, the police power is a power to be 
 exercised within wide limits of legislative discretion ; and if a 
 statute appears to be within the apparent scope of this power, 
 it would be a usurpation of jurisdiction for the courts to in- 
 quire into its wisdom and policy or to undertake to substitute 
 their discretion for that of the Legislature, If the Legisla- 
 ture has acted within the police power of the State, then* the 
 forum stands closed to the courts to inquire into the wisdom 
 and policy of the law or the discretion of the Legislature in 
 exercising that authority. 
 
 State vs. Addington, 12 Mo. App. 1. c. 221. 
 
 State vs. Beattie, 16 Mo. App. 131. 
 
 Cearfoss vs. State, 44 Md. 403. 
 
11 
 
 III. 
 
 THE ACT OF THE LEGISLATURE, APPROVED JUNE 
 1ST, 1909, PROVIDING LICENSES FOR THOSE EN- 
 GAGED IN THE BUSINESS OR OCCUPATION OF 
 MANUFACTURING, RECTIFYING OR SELLING 
 INTOXICATING LIQUORS IS PRESUMED TO BE 
 CONSTITUTIONAL. THE LEGISLATURE IS PRE- 
 SUMED TO HAVE BEEN AS CAREFUL TO OB- 
 SERVE THE REQUIREMENTS OF THE CONSTI- 
 TUTION IN ENACTING THE LAW AS THE COURTS 
 IN APPLYING IT. 
 
 The act in question is presumed to be constitutional un- 
 til the contrary is clearly shown. It is the duty of the court 
 no# only to presume that the act is constitutional in reference 
 to each single objection raised by the motion to quash, but as 
 to all of them. It is the duty of the court to adopt such a con- 
 struction of the act as a whole as will give it life and preserve 
 its vitality. Some of the questions raised as to the constitu- 
 tionality of the act, if sustained, would prove fatal, and some 
 are of minor importance, and from the effects of which the act 
 would survive. 
 
 In speaking of the presumption which the court must 
 indulge, Judge Fox, in the case of State ex parte Loving, 178 
 Mo. 1. c. 203, speaking for the court, said: 
 
 “In the solution of the proposition before us, 
 we must keep in view the familiar principle that, if 
 there is a reasonable doubt existing as to the con- 
 stitutionality of the act, such doubt must be re- 
 solved in favor of its validity. This principle is so 
 well recognized that the mere statement of it is suf- 
 ficient. ’ ’ 
 
12 
 
 In the case of State ex rel. vs. Aloe, 152 Mo. 1. c. 477, it 
 was very clearly and tersely stated by the court, as follows : 
 
 “When the validity of a statute is drawn in 
 question, the court approaches the subject as one in- 
 volving the gravest responsibility, and to be con- 
 sidered with the greatest caution. The General Ms- 
 sembly is presumed to have been as careful to ob- 
 serve the requirements of the Constitution in enact- 
 ing the statute as the court in applying it. Every 
 presumtion is to be indulged in favor of the validity 
 of the act, and that presumption is to continue until 
 its invalidity is made to appear beyond a doubt.” 
 
 To the same effect are the following cases: 
 
 State vs. Cantwell, 179 Mo. 1. c. 261. 
 
 State vs. Aloe, 152 Mo. 1. c. 477. 
 
 State ex rel. vs. Railroad, 48 Mo. 1. c. 471. 
 
 State ex rel. vs. Pike County, 144 Mo. 1. c. 280. 
 
 Where there is a doubt as to the constitutionality of an 
 act, that doubt will be resolved in favor of the validity of the 
 enactment. 
 
 Ex parte Loving, 178 Mo. 203. 
 
 State vs. Cantwell, 179 Mo. 261. 
 
 County vs. Griswold, 58 Mo. 192.- 
 State vs. Able, 65 Mo. 357. 
 
 This presumption as to the constitutionality of an act ap- 
 plies to the Federal laws as well as to the statutes of a state, 
 and it is the duty of both the State and Federal courts to in- 
 dulge the presumption. 
 
13 
 
 IY. 
 
 THE STATE HAS THE POWER TO PROHIBIT OR TO 
 REGULATE AND IMPOSE CONDITIONS UPON 
 PERSONS WHO DESIRE TO ENGAGE IN THE 
 TRAFFIC OF INTOXICATING LIQUORS. IN DO- 
 ING SO, THE STATE DEALS NOT WITH THE IN- 
 DIVIDUAL, BUT WITH MEN IN THEIR RELA- 
 TIONS TO EACH OTHER. 
 
 It is no longer an open question that the State can either 
 prohibit or regulate traffic in intoxicating liquors. The Leg- 
 islature can classify the different kinds of liquor dealers and 
 impose differential taxes upon each class. A difference can 
 be made between a manufacturer and a wholesaler, and it has 
 been held proper classification. 
 
 State vs. Bixman, 162 Mo. 1. c. 37. 
 
 Black on Intoxicating Liquors, Secs. 31, 39, 46, 55, 
 107, 108, 109. 
 
 It is well settled in Missouri that the State has full con- 
 stitutional power to impose a license fee or license tax upon 
 the business of liquor dealers and manufacturers, wholesalers 
 as well as retailers. In other words, it is a license fee or 
 license tax upon the occupation or business . It is the exer- 
 cise of the State’s power in limiting and restraining a traffic 
 which the courts have said is dangerous to the best interests 
 of the community. It is not the exercise of the State’s taxing 
 power, but of its police power. The fact that revenue may 
 follow is of no consequence in the eyes of the law. 
 
 For this reason, and also because it is a license fee or 
 license tax upon the business or traffic rather than a tax upon 
 the property invested in it, the validity of such a law is to be 
 tested; not by its conformity to the constitutional restriction 
 
14 
 
 upon the taxing power, but as to its being uniform in its oper- 
 ation upon manufacturers or dealers of the same class. 
 
 ✓ 
 
 Black on Intoxicating Liquors, Sec. 55. 
 
 State vs. Bixman, 162 Mo. 1. c. 36, 37. 
 
 Of the various systems of legislation for regulating the 
 traffic in intoxicating liquors, the one which is based upon the 
 granting of licenses is the one prevailing in the greatest num- 
 ber of states. The license laws have rarely been held un- 
 constitutional, by reason of the fact, it is not an exercise of 
 the taxing power of the State, but of its police power ; and 
 by reason of the further fact, the validity of such laws is not 
 measured by their conformity to the constitutional restriction 
 as to the taxation of property, but as to its operation, being 
 uniform upon the same class. 
 
 Black on Intoxicating Liquors, Secs. 46, 55, 109, 114, 
 115. 
 
 State vs. Austin, 10 Mo. 591. 
 
 State vs. Lemp, 16 Mo. 389. 
 
 State vs. Searcy, 20 Mo. 489. 
 
 State vs. Hudson, 78 Mo. 302. 
 
 Higgins vs. Talty, 157 Mo. 280. 
 
 State vs. Bixman, 162 Mo. 1. 
 
 Where the Legislature has power to impose a license fee 
 or license tax on an occupation, it has the added power to 
 make it a penal offense for any person to engage in that occu- 
 pation without first paying the license fee or license tax placed 
 thereon. 
 
 Black on Intoxicating Liquors, Secs. 58, 107. 
 
15 
 
 Judge Burgess, in his opinion in the case of State vs. 
 
 Finney, 178 Mo. 1. c. 391, said: 
 
 “As to the right of the State to absolutely pro- 
 hibit the manufacture and sale of intoxicating liquors 
 within its borders, and that such a prohibition is a 
 lawful exercise of its police power, and is not in any 
 way objectionable upon constitutional grounds, is no 
 longer a debatable question.” 
 
 The question is well settled that the State can prohibit, 
 under its police power, both the manufacture and the sale of 
 intoxicating liquors. If it can prohibit, it can regulate. If 
 it can regulate, it can license the traffic. If it can license the 
 traffic, it can prescribe the conditions. If it can prescribe the 
 conditions, the conditions cannot be questioned if the opera- 
 tion is uniform upon the same classes. 
 
 Black on Intoxicating Liquors, Sec. 37. 
 
 (Also, cases cited above.) 
 
 Y. 
 
 THERE IS A WIDE DIFFERENCE BETWEEN TAXA- 
 TION AND THE LICENSING OF A BUSINESS OR 
 OCCUPATION. A BUSINESS MAY BE LICENSED 
 AND NOT BE TAXED, OR IT MAY BE TAXED 
 AND YET NOT LICENSED. THERE IS NO NECES- 
 SARY CONNECTION BETWEEN THEM. 
 
 The act of the Legislature attacked by defendant’s mo- 
 tion to quash is better understood, and the questions pre- 
 sented easier of solution, if the court first ascertains the dif- 
 ference between taxation and the licensing of a business or 
 occupation. The rule laid down in Black on Intoxicating 
 
16 
 
 Liquors, section 108, and which is supported by the utterances 
 of the courts of this and other jurisdictions, is as follows : 
 
 ‘ ‘ If the business is under no legal condemnation, 
 but is open to all persons to engage in, then the im- 
 position of a tax upon it cannot be regarded as a 
 license, because, by universal consent, a license is 
 defined as a permit to do some act or engage in some 
 occupation which, without such permission would be 
 illegal. A license law, therefore, assumes the ille- 
 gality of the business, and denounces penalties upon 
 those who pursue it without previously protecting 
 themselves by procuring a license.” 
 
 In Missouri the traffic of intoxicating liquors is under 
 legal condemnation, and without a permission to sell, would 
 be illegal, as has been stated in the beginning. Therefore, 
 being under legal condemnation, the traffic is not open to all 
 persons, and by reason of that fact, the permission to engage 
 in the business is, as a matter of law, a license. 
 
 Having defined what is regarded as a license law, the 
 same author, in the same section, defines taxation, as follows : 
 
 “ Taxation, on the other hand, assumes the le- 
 gality of the business for any who may choose to 
 pursue it, but imposes a burden for the public bene- 
 fit upon those engaging in it. The case is not altered 
 by the fact that payment of the tax is made a condi- 
 tion precedent to the right to engage in the busi- 
 ness.’ ? 
 
 This dictinction between taxation and the licensing of a 
 business or occupation carries us to the proposition laid down 
 in the first paragraph of this brief, to wit, that the license 
 necessary to the traffic in intoxicating liquors, was a require- 
 ment of the law which did not infringe upon a primary, 
 
17 
 
 natural or fundamental right of the citizen. The traffic un- 
 der the laws of the State is illegal, and not open to all with- 
 out the securing of a permit or license to conduct the business 
 and that permit can, under the police power, be forfeited at 
 any time. Such licenses, when issued, are merely permits, 
 and are not contracts between the State and the licensee in 
 which the latter has vested rights. 
 
 Black on Intoxicating Liquors, Secs. 127, 128. 
 
 State vs. Bixman, supra. 
 
 Higgins vs. Talty, 157 Mo. 1. c. 287. 
 
 The defendant’s property is not taxed, and its whole ar- 
 gument is out of tune with the facts and the law involved in 
 considering the act before the court. The defendant argues 
 and presents its case on the theory that the primary, natural 
 and inalienable rights given to the citizen, and guaranteed 
 under the Constitution of the State and the Nation, are being 
 infringed upon and denied to it. It overlooks one of the keys 
 to the situation, that is, that it has no right at all to engage 
 in and carry on its business in the traffic of liquor in this 
 State without a license. It has no primary or fundamental 
 rights. It has no inalienable rights to be infringed upon or 
 to be denied to it. It can only engage in the business by and 
 through the permission of the State. The Legislature may 
 give or withhold this authority or permission at its pleasure, 
 and no one can be heard to complain. 
 
 The permission, or license, necessary to conduct the busi- 
 ness, is held not as a fundamental or absolute right, but as a 
 favor, which must be received by it upon such terms and con- 
 ditions, and subject to such burdens and inconvenience a’s 
 the State thinks proper to impose and the licensee elects to 
 accept. Different from all other vocations, which it is the 
 right of a citizen to follow undisturbed by legislative inter- 
 
 P— 2 
 
18 
 
 ference, the person who engages in the liquor traffic within 
 the limitations above indicated, must do so subject to all the 
 disadvantages which may be prescribed by the law-making 
 power permitting or licensing the business. 
 
 State vs. Bixman, 162 Mo. 1. c. 23, 24, 27, 30 and 31. 
 
 i 
 
 Black on Intoxicating Liquors, Secs. 108 and 179. 
 
 The above and foregoing extracts serve the purpose of 
 clearly illustrating and establishing the fact, that the burdens 
 imposed by the act under review, are those of a license upon 
 the occupation or business, and the act must therefore be 
 measured by the rules and the law applying to such enact- 
 ments in construing their constitutionality. The defendant 
 proceeds entirely on the theory that the act imposes a tax 
 upon its property. The State proceeds upon the theory that 
 the act imposes a license fee upon the occupation or business 
 of the defendant. That revenue may follow is not an element 
 of concern in passing upon the act, and this the courts have 
 declared time and time again. 
 
 The defendant having made a wrong diagnosis of the case, 
 is wrong in its treatment. The legal shafts fall wide of the 
 mark. 
 
 VI. 
 
 THE DEFENDANT SEEKS TO APPLY TO THIS, A LI- 
 CENSE LAW, THE RULE WHICH MIGHT APPLY 
 TO AN ACT PURELY FOR REVENUE, THAT IS, A 
 LAW LEVYING A TAX UPON THE PROPERTY. IT 
 LEAVES OUT OF VIEW THE FACT, THAT THE 
 ENACTMENT UNDER CONSIDERATION IS A LAW 
 WITHIN THE POLICE POWER OF THE STATE 
 AND DIRECTED AGAINST A TRAFFIC WHICH IS 
 ITSELF ILLEGAL. A TRAFFIC WHICH IS CON- 
 DUCTED, NOT AS A PRIMARY, NATURAL OR 
 
19 
 
 FUNDAMENTAL RIGHT, AS IS THE CASE IN THE 
 ARTERIES OF COMMERCE, BUT IS CONDUCTED 
 UNDER A SPECIAL PERMIT OR LICENSE IS- 
 SUED BY THE STATE IN THE EXERCISE OF ITS 
 POLIC POWER. 
 
 The defendant, in its brief, does not observe the distinc- 
 tion between the law which is a tax upon the property, and 
 the law which is a license upon the business or occupation, 
 which said business is by other laws, declared to be illegal. 
 The rule applicable to the one class is out of tune when ap- 
 plied to the other. The fallacy of the defendant lies in as- 
 suming that the business or occupation of traffic in intoxicat- 
 ing liquors is not illegal, but is open to all persons to engage 
 in. That it is under no legal condemnation, and that the law 
 has erected no barriers preventing persons from engaging in 
 same without securing from the State permission so to do. 
 
 The following, taken from the opinion in ' the Bixman 
 case, 162 Mo. 1. c. 23, is helpful in illustrating and impressing 
 the State’s contention upon the court: 
 
 “And herein, as this court conceives, consists 
 the chief defect and fallacy of the position as- 
 sumed and argued with so much ingenuity and re- 
 search by the learned counsel for the respondent. 
 They forget, as it appears to us, that the subject with 
 which we are dealing, is not one of those pertaining 
 to the primary and fundamental rights of the citizen, 
 and as to which no unlimited control has been vested 
 in the Legislature. They seem to overlook this prin- 
 cipal ground of distinction and argue as if the ac- 
 tion of the Legislature was an infringement of the 
 natural and inalienable rights of the citizen, de- 
 clared and guaranteed by the Constitution instead 
 of the exercise of the discretionary power against 
 which no limit has been set by that instrument. And 
 
20 
 
 this, we think, is the very turning point of the con- 
 troversy, namely, that the Legislature may grant or 
 withhold authority to sell at its pleasure, and, grant- 
 ing such authority, it is held by the licensee at the 
 mere pleasure or grace of the body granting it. It 
 is held by him, not as a matted of primary and ab- 
 solute right, but a r s a favor, which, like all favors, 
 must be received upon such terms and conditions, 
 and subject to such burdens and inconveniences as 
 the donor thinks proper to impose and the donee 
 elects to accept. 7 ’ 
 
 “Unlike other trades and employments which 
 it is the right of the citizen to pursue, undisturbed 
 by arbitrary legislative interference and control, the 
 person who engages in this must, within the limita- 
 tions above indicated, do so subject to such disad- 
 vantages as may be presented by the law-making 
 power which authorizes it. ’ ’ 
 
 On page 24 of the same report, the court says : 
 
 “We construe the act in view of all its parts, 
 and in connection with other license laws of this 
 State, and hold that the fee exacted is the price which 
 the State demands for the privilege of doing the 
 business of brewing and selling beer and malt liquors 
 in this State, and it is immaterial by what name it 
 is called, and, being such, is not a tax upon property 
 within the meaning of our Constitution, etc.” 
 
 The State, by statute, instead of prohibiting the traffic 
 altogether, permits it under certain conditions. When the 
 State has prescribed the conditions, the person who desires to 
 engage in the business under those conditions cannot, when he 
 has received his permit, question the conditions. The condi- 
 
21 
 
 tions but represent the 'price which the State has demanded 
 for the privilege or permit of engaging in the lousi- 
 ness. The conditions imposed must simply be uniform in 
 their operation upon manufacturers or dealers of the same 
 class. 
 
 The person desiring to engage in the traffic under the 
 conditions prescribed by the State cannot question the con- 
 ditions other than they shall be uniform upon the same class. 
 The State having the right to prescribe the conditions upon 
 which the license may be secured, and the State having the 
 right to refuse to permit the business to be conducted at all, 
 can say to the person who desires to engage in the traffic, if 
 you do not care to engage in the business upon the prescribed 
 terms, you shall not act at all, and the State will withdraw 
 the conditions suffering the business to be conducted. In 
 other words, the State can grant or refuse the favor , just as 
 it may desire. 
 
 Black on Intoxicating Liquors, Sec. 55. 
 
 State vs. Bixman, supra. 
 
 VII. 
 
 THE STATE PROPOSES NOW TO MEET SINGLY, 
 EACH GROUND PRESENTED BY THE DEFEND- 
 ANT IN ITS MOTION TO QUASH, AS TO WHY THE 
 MOTION SHOULD BE SUSTAINED AND THE ACT 
 DECLARED UNCONSTITUTIONAL. 
 
 The defendant, in its motion to quash the information, 
 and in its brief filed in support of same, challenges the con- 
 stitutionality of the act for ten special reasons. It is charged 
 that the law contravenes five provisions of the State Consti- 
 tution and five provisions of the Federal Constitution. 
 
 The provisions of the State and Federal Constitutions 
 which the motion to quash charges the law violates, selecting 
 
22 
 
 our own order for the more logical presentation of the ques- 
 tions, are as follows : 
 
 1st. Because said act is violative of section 28, article 
 IV of the Constitution of the State of Missouri, in that it 
 contains more than one subject; also, that the subject of the 
 same is not clearly expressed in its title’. 
 
 2nd. Because the act is a revenue measure and under- 
 takes to impose taxes on occupations, persons and property, 
 which are not uniform on the same class or classes of subjects, 
 within the territoial limits, of the State, and is, therefore, 
 violative of section 3 of article X of the Constitution of Mis- 
 souri. 
 
 3rd. Because said act violates section 4, article X of the 
 Constitution of Missouri, in that all property in the State 
 subject to the tax imposed by the said act is not taxed under 
 the provisions of said act in proportion to the value of said 
 property. 
 
 4th. Because said act violates sections 6 and 7 of article 
 X of the Constitution of the State of Missouri, in that it un- 
 dertakes to exempt property from taxation in contravention 
 of said constitutional provision. 
 
 5th. Because said act violates section 30, article II of 
 the Constitution of Missouri, in that the enforcement thereof 
 would deprive the defendant of its liberty and its property 
 without due process of law. 
 
 6th. Because said act violates the Fifth Amendment of 
 the Constitution of the United States, in that it attempts to 
 deprive the citizens of the State of Missouri of their property 
 without due process of law. 
 
 7th. Because said act violates section 1 of the Four- 
 teenth Amendment to the Constitution of the United States, 
 in that it attempts to abridge the privileges and immunities of 
 citizens of the United States; and; further, in that it is an 
 attempt to deprive the citizens of the several states and of the 
 
23 
 
 State of Missouri of their property, without due process of 
 law; and, further, that it denies to those persons who come 
 within its provisions the equal protection of the law. 
 
 8th. Because said act is in violation of the second clause 
 of section 10, article I, of the Constitution of the United 
 States, in that it attempts to levy an impost or import duty or 
 tax on the products of the several states coming into the State 
 of Missouri. 
 
 9th. Because said act violates the provisions of the third 
 clause of section 8, article I of the Constitution of the United 
 States, in that it attempts to regulate commerce between the 
 several states and the State of Missouri. 
 
 10th. Because said act violates the provisions of section 
 2 of article IV of the Constitution of the United States, in 
 that it denies to the citizens of other states the privileges and 
 immunities granted to the citizens of the State of Missouri 
 thereunder. 
 
 Each one of the above grounds and reasons set forth in 
 the motion to quash will be taken up and answered singly in 
 the following portion of the brief, beginning with the first ob- 
 jection and ending with the tenth. 
 
21 
 
 ARGUMENT AND BRIEF. 
 
 SPECIAL CHALLENGES CONSIDERED AND AN- 
 SWERED. 
 
 I. 
 
 THE ACT DOES NOT VIOLATE SECTION 28, ARTICLE 
 IV OF THE CONSTITUTION OF THE STATE OF 
 MISSOURI, AS CHARGED IN THE FIRST SPECI- 
 FICATION THAT THE BILL CONTAINS MORE 
 THAN ONE SUBJECT, AND THAT THE SUBJECT 
 IS NOT CLEARLY EXPRESSED IN THE TITLE. 
 
 The charge that the title to the act contravenes section 
 28 of article IV of the Constitution of Missouri is a common 
 ground, which is urged in every attack on the constitution- 
 ality of a legislative enactment. The authorities upon this 
 proposition, cited by counsel for defendant, serve no useful 
 purpose in passing upon the question here. Each case, each 
 title to a bill, must be governed and adjudged solely under 
 its own peculiar reading, provisions and facts. The citing of 
 special cases as to special titles to bills which have been held 
 unconstitutional, aside from the general rules, are not helpful 
 unless they passed upon similar titles and similar laws. 
 
 In passing upon questions of this character, the courts, 
 without exception, have laid down the general rule, which is 
 as follows: 
 
 “If any matter contained in a statute be ob- 
 jected to as not referred to in the title, or that the 
 bill contains more than one subject, the objection 
 
25 
 
 urged will not be held well taken, if the clause or 
 section to which objection is raised be germane to the 
 subject treated of in the title.” 
 
 State vs. Mead, 71 Mo. 1. c. 286. 
 
 State vs. Bixman, 162 Mo. 1. c. 19. 
 
 The title to the act under consideration, is found on page 
 654, Laws 1909, and reads as follows : 
 
 “An act to license manufacturers and rectifiers 
 of intoxicating liquors and wholesale and retail 
 dealers in such liquors, except wines and spirits pro- 
 duced from grapes or fruits grown in the State of 
 Missouri, and except social, commercial or other clubs 
 and druggists and pharmacists and licensed dram- 
 shop-keepers, and to provide penalties for a vloia- 
 tion thereof.” 
 
 There is not a provision in the entire bill which is not 
 germane to the title of this act. The constitutional provision 
 does not require, under the holdings of the courts, the title to 
 set out each and every provision contained in the bill. If this 
 were true, the title would be as lengthy and specific as the 
 bill itself. All that is necessary is that the provisions of the 
 bill be germane to the matter expressed in the title. The 
 title cannot be a complete index to the bill. In the case of 
 the City of St. Louis vs. Weitzel, 130 Mo. 1. c. 616, Judge 
 Sherwood, in speaking for the court upon this subject, said: 
 
 “The evident object of the provisions of the or- 
 ganic law relative to the title of an act was to have 
 the title like a guide board, indicate the general con- 
 tents of the bill, and contain but one general subject 
 which might be expressed in a few or greater num- 
 ber of words. If those words only constitute one 
 
26 
 
 general subject ; if they do not mislead as to what the 
 bill contains; if they are not designed as a cover to 
 vicious and incongruous legislation, then the title can 
 stand on its own merits, is an honest title, and does 
 not impinge on constitutional prohibitions. ’ ’ 
 
 Measured by this rule, which is reaffirmed by the court 
 in the case of State vs. Bengsch, 170 Mo. 1. c. at 105, the title 
 to the bill under consideration is sufficient. It has but one 
 general subject, that is, the licensing of the manufacturers and 
 rectifiers of intoxicating liquors and wholesale and retail 
 dealers therein, and provides penalties for a violation thereof. 
 The title indicates the general contents and contains but one 
 general subject. This could be done in a few words as well as 
 in a multiplicity of words. There is no necessity of being ver- 
 bose. It cannot be said that the title to the bill is misleading. 
 It cannot be said it is designed as a cover to vicious and in- 
 congruous legislation. 
 
 The title to the bill conforms to the constitutional pro- 
 vision, and is not even susceptible of criticism. Judge Wag- 
 ener, in delivering the opinion of the court in the case of 
 State vs. Miller, 45 Mo. 495, in speaking of a bill, the title to 
 which provided it was an act to prevent the issuing of false 
 receipts or bills of lading, and to punish fraudulent transfers 
 of property by warehousemen, wharfingers and others, said: 
 
 “Now, the nature and object of the act is clearly 
 defined in the title. It is to prevent the issue of 
 false receipts or bills of lading, and to punish fraud- 
 ulent transfers of property by warehousemen, 
 harfingers and others. By a fair construction, it 
 relates to a class of offenses of a kindred character, 
 all connected, blended, and germane. The act shows 
 clearly that its object and aim was to strike at a 
 whole class of cases and remedy an existing evil; 
 
27 
 
 and whilst warehousemen and wharfingers are 
 especially enumerated in the title, others are spoken 
 of. A glance at the title would naturally show what 
 was to be found in the law.” 
 
 Measured then by this judicial pronouncement the 
 license act of 1909, is sufficient. 
 
 Again Justice Henry in speaking upon the same subject 
 in the case of State vs. Rrassfield, 81 Mo. 1. c. 162, wherein 
 the title to a bill was challenged by reason of two bills having 
 beeh consolidated and a substitute passed for the two, said: 
 
 “Chapter 24 of the Revised Statutes, com- 
 mencing with section 1227, and ending with section 
 2119 inclusive, was passed as one bill, and embraces 
 the entire subject o£ crime and criminal procedure 
 and there is nothing in the point that the constitu- 
 tional provision that the subject of each bill shall be 
 clearly expressed in its title, and that no bill shall 
 contain but one subject, was violated. There are no 
 incongruous matters in chapter 24 and the title of, 
 ‘Crimes and Criminal Procedure/ clearly indicates 
 what it contains. What are crimes and the pro- 
 cedure in criminal eases, are cognate subjects, and 
 the definition of crimes and the procedure against 
 persons accused of committing them, may very 
 properly be embraced in one bill.” 
 
 The court properly held the title to such a bill contained 
 but one subject. The court has held the title to the acts 
 as to cities of the various classes to be constitutional. That 
 they contain but one general subject. The act of March 26th, 
 1889, pages 33, 34 (now section 6350-6354, R. S. 1899), 
 authorizes any city, town or village in the State to contract 
 a debt for any purpose authorized by its charter or any gen- 
 
28 
 
 eral law of the State. This act was held “live law” in the 
 case of Evans vs. McFarland, 186 Mo. 1. c. 724. 
 
 Again, in 1879, the legislature enacted a measure author- 
 izing the issuance of bonds for the purpose of building a 
 court house or jail, and by laws of 1907, page 194, amended 
 this by authorizing the issuance of such bonds for the pur- 
 pose of building a court house, jail or a poor house. This 
 act has been uniformly upheld and its title is sufficient. It 
 relates to but one subject. 
 
 Judge Sherwood in the case of State vs. Bengsch, 170 
 Mo. 1. c. 106, said: 
 
 “The title, of an act under our Constitution 
 is to be but a general indicator of the subject treated 
 of in the body of the act; that subject must, indeed, 
 be clearly expressed in the title, but that title need 
 do no more; it need not descend into details, nor 
 make a digest of the statute, of which it forms the 
 headpiece.” 
 
 The court in the case of State vs. Bengsch, supra, held 
 that the title to the State license tax, etc., of the bill passed by 
 the General Assembly in the session of 1901, complied with 
 the constitutional provision. That act, which contained 
 twenty-five sections with a great multiplicity of provisions in 
 reference to the appointment of a special license commis- 
 sioner, together with his duties and also as to the provision 
 of stamps and the stamping of certain liquors, etc., contained 
 the following title: 
 
 “An act to provide for a State license tax on 
 distilled liquors, including whiskey, brandy, rum, 
 gin and distilled spirits of all kinds, wines and all 
 kinds of vinous liquors ; to create the office of special 
 license commissioner, and to provide for the ap- 
 pointment thereof by the Governor.” 
 
29 
 
 This title to the act contained but the one general subject. 
 The court so held and commented on same as set out in the 
 paragraphs above stated. 
 
 State vs. Bengsch, 170 Mo. 1. c. 105, 106. 
 
 If the title to the act of 1901 last above quoted, meets the 
 constitutional provision, how can it be said, the title to the 
 act of 1909 violates it? In the case of State vs. Bengsch, 
 supra, the court upheld the title to the act but found the act 
 was a tax on specific property, and correctly so because the 
 title and the provisions of the act so state and the emergency 
 clause so recognizes. 
 
 The title to the act known as the Beer Inspection Law 
 was held to meet the constitutional requirement in the ca'se of 
 State vs. Bixman, supra. 
 
 In passing on the eight -hour law affecting miners, session 
 acts 1901, page 211, Judge Fox in the case of State vs. Cant- 
 well, 179 Mo. 1. c. 260, said: 
 
 “It was not necessary for the law-making 
 power, in the title of the act, to designate the pur- 
 pose of it. The evils it is intended to remedy may 
 be deduced from the provisions of the act itself. 
 That the title should contain but one subject, and 
 it should be clearly expressed, by no means can be 
 construed that the title must designate the purpose 
 of the act. The object to be obtained by the provis- 
 ions of the Constitution that there shall be but one 
 subject, and it shall be clearly expressed was to 
 prevent surprise upon the lawmakers by the passage 
 of bills, the object of which is not indicated by their 
 titles, and also to prevent the combination of tAVO 
 or more distinct and unconnected matteisln the same 
 bill.” 
 
30 
 
 There is nothing in the title to the act of 1909, which 
 is calculated to surprise or mislead anyone who may read it. 
 The body of the act treats only of the general subject indi- 
 cated by the title. 
 
 Treating of this topic, Bishop tersely says: 
 
 “The title need indicate the subject only in a 
 general way, without entering into detail; and all 
 auxiliary provisions properly attaching to it, and 
 constituting with it one whole, may he embraced 
 within the enactment.’’ 
 
 To like effect is held in 
 
 State vs. Bockstruck, 136 Mo. 335. 
 
 Statutory Crimes (2 Ed.) Sec. 36a. 
 
 In the case of State vs. Bengsch, the court after holding 
 the title to the act of 1901, to be sufficient, gave an illustration 
 of how the title to that act could even have been abbreviated 
 and still comply with the constitutional mandate. The abbre- 
 viated title is as follows: (170 Mo. 1. c. 107.) 
 
 ‘ ‘ An act relating to the manufacture and sale of 
 distilled and vinous liquors.” 
 
 The court in discussing this abbreviated title, which did 
 not mention penalties, and which it said would be sufficient 
 for the act of 1901, stated : 
 
 “Under such a comprehensive title, the mere 
 matter of detail, such as a license tax, etc., etc., would 
 be entirely germane to that title.” 
 
 In view of these general announcements from our Su- 
 preme Court and the application of the constitutional re- 
 
31 
 
 quirement to particular titles to bills, the challenge as to the 
 sufficiency of the title to the act under consideration, to wit: 
 the license law of 1909, is without merit. The law presumes 
 the title to be constitutional. It is the duty of the court 
 to indulge that presumption and give it full force and effect. 
 Aside from this, the State has clearly justified the title 
 adopted by the legislature and the defendant’s contention 
 must fall. 
 
 The defendant in its discussion of the title also dis- 
 cussed the question of revenue upon the theory that the act 
 is a revenue law and therefore the title had more than one 
 subject. This contention is held against it in the license and 
 other cases cited by the State and in the application of the 
 principles announced in the first seven paragraphs of this 
 brief. 
 
 The charge that the law is a revenue measure will, how- 
 ever, be further treated in its proper place under the assign- 
 ments in defendant’s motion. 
 
 II. 
 
 THE ACT IS NOT A REVENUE MEASURE, AND DOES 
 NOT UNDERTAKE TO IMPOSE TAXES ON OCCU- 
 PATIONS, PERSONS AND PROPERTY WHICH 
 ARE NOT UNIFORM ON THE SAME CLASS OR 
 CLASSES OF SUBJECTS, AND DOES NOT VIO- 
 LATE SECTION 3 OF ARTICLE X OF THE CON- 
 STITUTION OF MISSOURI, AS CHARGED IN THE 
 SECOND SPECIFICATION. 
 
 (a) 
 
 A definition of the word “license” is pertinent in dis- 
 cussing this challenge of defendant. The following defini- 
 tions have been given by the courts : 
 
32 
 
 11 A license is essentially a grant of a special 
 privilege to one or more persons, not enjoyed by 
 citizens generally, or, at least not enjoyed by a class 
 of citizens to which the licensee belonged. A com- 
 mon right is not the creature of a license law.” 
 
 Words and Phrase's, Yol. 5, page 4137. 
 
 State vs. Frame, 39 Ohio, 413. 
 
 ‘ ‘ The popular understanding of the word license 
 is a permission to do something which without the 
 license would not be allowable, and such is the legal 
 definition. ’ ’ 
 
 Youngblood vs. Sexton, 32 Mich. 406. 
 
 “ License is a permission granted by ’some com- 
 petent authority to do an act which without such 
 permission would be illegal.” 
 
 State vs. Hipp, 38 Ohio, 199. 
 
 “A license in its proper sense is a permit to do 
 business which could not be done without the 
 license. ’ ’ 
 
 City of Sonora vs. Curtin, 137 Cal. 583. 
 
 “The object of a license is to confer a right 
 which does not exist without a license. A license is 
 a privilege granted by the State usually on payment 
 of a valuable consideration. To constitute a 
 privilege the grant must confer authority to do 
 something which without the grant would be illegal, 
 for, if what is to be done under the license is open 
 to everyone without it, the grant would be merely 
 
33 
 
 idle and nugatory, conferring no privilege what- 
 ever.’ ’ 
 
 Cooley on Taxation, 596. 
 
 These definitions are Sufficient to announce the rule that' 
 a license to manufacture, rectify or sell intoxicating liquors, 
 is the permission granted by the State to engage in a busi- 
 ness which, under the laws of Missouri, is illegal without the 
 permission and further, is a business privilege not enjoyed by 
 citizens generally, nor followed as a natural or fundamental 
 right. That, without such permission, to engage in such busi- 
 ness, occupation or traffic, would be in violation of the laws 
 of Missouri. 
 
 Or to be more specific, as Black on Intoxicating Liquors, 
 Says, in section 117 : 
 
 “It is apparent that three leading ideas are in- 
 volved in the definition of a license under the liquor 
 laws. First, it confers a special privilege upon 
 selected persons, to pursue a calling not open to all. 
 Second, it legalizes acts which, if done without its 
 protection, would be offenses against the statutes. 
 Third, it is a privilege granted as a part of a system 
 of police regulation, and herein is distinguishable 
 from taxation. A license fee is exacted primarily as 
 a means of restricting or regulating a trade, and it 
 continues to be such although, incidentally, it may 
 produce an addition to the public revenue.” 
 
 (b) 
 
 The act of 1909, licensing manufacturers and rectifiers 
 of intoxicating liquors and wholesale and retail dealers there- 
 in, etc., in a general way provides, it shall be unlawful for 
 any person, firm or corporation to manufacture, rectify, sell 
 
 p— 3 
 
34 
 
 or expose to sale, intoxicating liquors of any kind in any 
 quantity without a license from the State so to do. The act 
 prescribes where and how the applications for such licenses 
 shall be made and the statements to be contained therein. 
 If the application is to sell, the application must state the 
 kind of lousiness in order that same may be classified. The 
 application for such licenses must in every instance be ac- 
 companied by a statement in writing subscribed and sworn to, 
 setting forth certain matters; or under certain other condi- 
 tions the statement must contain certain estimates. Upon 
 approval of such application and statement, and payment of 
 the license fee provided, the license issues. Upon every 
 license granted the State has fixed a certain price or fee which 
 it demands for the privilege of conducting the busi- 
 ness. It is immaterial whether you call it by the name of 
 a tax, a license, a fee, a license fee, a license tax or what not. 
 
 As Judge Gantt said, in the case of State vs. Bixman, 
 162, Mo., page 24: 
 
 “ It is immaterial by what name it is called, and 
 being such, it is not a tax upon property, within the 
 meaning of our Constitution, and hence the objec- 
 tions that it is not levied according to the value and 
 is not uniform and exceeds the constitutional rate, 
 must fall with the proposition to which they are 
 corollaries.” 
 
 The act for the purpose of fixing this fee which must be 
 paid the State, I care not by what name you call it, has 
 divided the business into certain classes in section 5 of the act 
 and graduated the tax accordingly. This is done for the pur- 
 pose of meeting the one requirement of license laws, that is, 
 that it shall operate uniformly upon the same class. A read- 
 ing of the act either casually or closely impresses the fact of 
 its uniform operation upon the same class. The State has the 
 
right to separate them into classes, and has the right to 
 impose different charges or fees upon the several classes so 
 created. 
 
 State vs. Bixman, 162 Mo. 1. c. 26, 27. 
 
 The court said in this case, on page 36 : 
 
 “We think it is competent for the General As- 
 sembly to classify the different kinds of liquor deal- 
 ers and impose differential taxes upon such classes. 
 * * * The law as to its taxing features, operates 
 upon a business and not upon property and hence is 
 not required to be uniform to all forms of traffic 
 or to all classes, a difference was made between a 
 manufacturer and a wholesaler, and was held proper 
 classification.’ * 
 
 To the same effect is 
 
 Back on Intoxicating Liquors, Sec. 107. 
 
 I have quoted the main provisions of the license act of 
 1909 for a double purpose : First, to bring to the court ’s at- 
 tention the fact, the bill has but one subject, and that subject 
 is clearly expressed in the title, and all matters contained in 
 the law are germane to the one subject. Second, to bring to 
 the court’s attention the fact, the law is not a tax upon 
 property, but as the title to the act recites, and as the bill 
 itself provides, is a license upon a business or occupation 
 which cannot be conducted in Missouri without such license, 
 etiher as to manufacturing, rectifying or selling. 
 
 Judge Gantt in delivering the opinion of the court in 
 the case of State vs. Bixman, 162 Mo. 1. c. 20, wherein the 
 constitutionality of the Beer Inspection Law was attacked, 
 in speaking of the same objection to that law as this second 
 objection raises here, said: 
 
36 
 
 “The insistence of the learned counsel for de- 
 fendant is that it is an act to levy a general revenue 
 or property tax, and not a police regulation. In 
 arriving at this conclusion, great stress is laid upon 
 the fact that a large revenue — an amount approxi- 
 mating a half million dollars — is covered into the 
 State Treasury, together with the fact that the 
 Statute requires all the fees arising under it to 
 be paid directly into the treasury, and that the 
 salaries of the inspectors and his deputies shall be 
 paid out of a distinct appropriation for that pur- 
 pose. Having satisfied themselves that it is sun ply 
 a revenue tax, and the law a method of raising 
 revenue only, counsel proceed to occupy two more ad- 
 vanced positions, to wit: that if the legislature in- 
 tended by these inspection fees to raise revenue, 
 the law cannot stand, and that the legislature has 
 not an arbitrary power to prohibit the sale of beer. 
 Both of these propositions we answer in the negative, 
 upon long established principles. 
 
 “As to the first, this court has answered in no 
 uncertain language. In State vs. Hudson, 73 Mo. 
 305, the court said: ‘It does not follow because the 
 license fee is large or because it may become a part 
 of the public revenue, that it is therefore a tax. 
 Many fines, penalties and forfeitures become a part 
 of the public revenues of the State that are not de- 
 rived from taxation. The disposition of the fund 
 derived from the license fees does not necessarily 
 determine the character of the fees.’ We may add 
 that when the subject is within the police power as 
 we think we will be able to show this is, then the ex- 
 tent to which it shall be exercised, and the regula- 
 tions to effect the desired end, are matters within the 
 legislative discretion. The fact, then, that a large 
 
87 
 
 revenue results from this price which the legislature 
 requires of the brewers for the privilege of carry- 
 ing on their business in this State, does not establish 
 that it is a simple revenue tax under the guise of in- 
 spection merely. ” 
 
 How aptly this declaration of the Supreme Court fits 
 and applies to the License Law under consideration. Can 
 it be said, that, in the application of a license law as to 
 beer a different rule would exist than when applying the 
 same to other intoxicating liquors? 
 
 (c) 
 
 We find, the fact that revenue, even a large revenue, 
 a handsome revenue may follow is of no concern. If this 
 were not so then the State would be powerless to regulate 
 the illegal traffic or business. The legislature would be re- 
 quired to nicely gauge its every act and see, that in regu- 
 lating these illegal businesses no revenue should follow. That, 
 in licensing Jones or Smith to engage in an illegal business, 
 that is an illegal business without a permit, it cannot demand 
 of them anything or any sum which would add to the State’s 
 revenues. That, in granting them a favor the State has a 
 right to prescribe every condition, save and except the one 
 condition as to the amount of the license fee. To hold and 
 affirm Such a contention leads one to an absurdity. 
 
 Judge Gantt in the same case on page 21, said: 
 
 ‘ * The policy of the law is one thing ; the consti- 
 tutional power of the General Assembly to enact it 
 is an entirely different thing. The legislature, in the 
 act before us, has declared that beer can only be sold 
 or manufactured in this State upon condition that it 
 shall be made from certain cereals only, and shall be 
 
38 
 
 inspected, and the inspection fees paid to the State 
 therefor. The defendant asserts that its action in 
 so doing is unconstitutional. We answer that under 
 the Constitution of the State there is nothing to pro- 
 hibit the legislature from suppressing the business 
 absolutely. We stand upon firm ground in assert- 
 ing this prerogative for the legislative department. 
 To deny it is to depart from well-settled principles. 
 It has been the established law of this State that the 
 right to sell spirituous or intoxicating liquors is not 
 a natural right , but is a calling which no one has 
 the right to pursue without first having received the 
 privilege or license so to do from the lawful authori- 
 ties of the State. In that and the subsequent cases 
 of State vs. Lemp, 16 Mo. 389, and State vs. Searcy, 
 20 Mo. 489, it was ruled that the State has a right 
 in the exercise of its police power to prohibit the sale 
 of intoxicating liquors altogether, or permit their 
 sale, under such regulations as it deems proper. 
 This power was re-asserted in State vs. Hudson, 78 
 Mo. 302; and it was further held that the high 
 license fees imposed by the act of March 24th, 1883, 
 were not taxes within the meanings of sections 1, 3 
 and 10 of article X of our Constitution, but the 
 price paid for the privilege of doing a thing, the 
 doing of which the legislature has a right to prohibit 
 altogether. ’ ’ 
 
 These utterances but again impress us with the principles 
 announced in the beginning of this brief which we should 
 bear in mind, to wit: the business sought to be licensed is 
 unlike all other trades and employments, in that it cannot be 
 followed or pursued as a natural or primary right. The 
 State can abolish the business and the citizens lose no inalien- 
 able rights. In discussing laws applicable to such a vocation. 
 
39 
 
 the rules laid down are strangers to the rules applicable to a 
 business which the citizen can follow as a primary or natural 
 right. It serves the further purpose to impress the court 
 with the fact that the license fees under the license act of 
 1883 were not taxes within the meaning of article X of our 
 Constitution. 
 
 It has been further held in the State and in the Federal 
 courts, that a license to sell liquors under our laws is not a 
 contract between the State and the licensee , nor property, in 
 the meaning of our laws or Constitutions. The courts have 
 expressly held to this effect. 
 
 Higgins vs. Talty, 157 Mo. 280. 
 
 State vs. Davis, 108 Mo. 670. 
 
 Boston Beer Co. vs. Massachusetts, 97 U. S. 25. 
 
 Justice Bradley, of the Supreme Court of the United 
 States, in delivering the opinion in the case of Boston Beer 
 Co. vs. Massachusetts, supra, in speaking upon this subject, 
 said: 
 
 ‘ ‘ If- the public safety or the public morals re- 
 quire the discontinuance of any manufacture or 
 traffic, the hand of the legislature cannot be stayed 
 from providing for its discontinuance, by any in- 
 cidental inconvenience which individuals or cor- 
 porations may suffer. All rights are held subject 
 to the police power of the State. 
 
 “ Whatever differences of opinion may exist as 
 to the extent and boundaries of the police power, 
 and however difficult it may be to render a satis- 
 factory definition of it, there seems to be no doubt 
 that it does extend to the protection of the lives, 
 health and property of the citizens, and to the 
 preservation of good order and the public morals. 
 
40 
 
 The legislature cannot, by any contract, divest itself 
 of the power to provide for these objects. They 
 belong emphatically to that class of objects which 
 demand the application of the maxim, salus populi 
 supremo lex ; and they are to be attained and pro- 
 vided for by such appropriate means as the legis- 
 lative discretion may devise. That discretion can 
 be no more bargained away than the power itself.* y 
 
 In the case of State vs. Hudson, 78 Mo. 302, and re- 
 affirmed in the case of State vs. Bixman, the court said: 
 
 “Such laws (i. e. license laws), are regarded 
 as police regulations established by the legislature 
 for the prevention of intemperance, etc., and are 
 not regarded as an exercise of the taxing power. 
 Pursuits that are pernicious or detrimental to public 
 morals may be prohibited altogether or licensed for 
 a compensation to the public.* * 
 
 The following authorities announce the same principles r 
 
 Ex parte Tuttle, 91 Cal. 589. 
 
 State vs. Thompson, 160 Mo. 333. 
 
 Patterson vs. Donovan, 20 Nevada, 75. 
 
 Cooley on Constitutional Limitations (6 Ed.) p. 591. 
 Cooley on Constitutional Limitations (3 Ed.) p. 727. 
 L’Hote vs. New Orleans, 177 U. S. 596. 
 
 Crowley vs. Christensen, 137 U. S. 86. 
 
 In the case of Crowley vs. Christensen, 137 U. S. 86, the 
 court said : 
 
 “The manner and extent of regulation rests 
 in the discretion of the governing authority. That 
 
41 
 
 authority may vest in such officers as it may deem 
 proper the power of passing upon applications for 
 permission to carry it on, and to issue licenses for 
 that purpose. It is a matter of legislative will only. 
 As in many other cases, the officers may not always 
 exercise the power confered upon them with wisdom 
 or justice to the parties affected. But that is a 
 matter which does not affect the authority of the 
 State ; nor is it one which can be brought under the 
 cognizance of the courts of the United States.” 
 
 These cases lead to the irresistible conclusion that, in 
 dealing with a business denominated illegal by the law, and, 
 in imposing restrictions and conditions upon it, the legisla- 
 ture is not dealing with a question of taxation as to 
 property. In speaking further upon this subject, Judge 
 Gant, in the case of State vs. Bixman, 162 Mo. 1. c. 23, quot- 
 ing approvingly from the language of Chief Justice Dixon in 
 the case of State vs. Luddington, 33 Wis. 107, said: 
 
 “And herein as this court conceives consists the 
 chief defect and fallacy of the position assumed and 
 argued with so much ingenuity and research by the 
 learned counsel for the respondent. They forget as 
 it appears to us that the subject with which we are 
 dealing is not one of those pertaining to the pri- 
 mary and fundamental right of the citizen, and as 
 to which no unlimited control has been vested in the 
 legislature. They seem to overlook this principal 
 ground of distinction, and argue as if the action 
 of the legislature was an infringement of the 
 natural and inalienable rights of the citizen, de- 
 clared and guaranteed by the Constitution, instead 
 of an exercise of a discretionary power against which 
 no limit has been set by that instrument. And, this, 
 
42 
 
 we think, is the very turning point of the contro- 
 versy, namely, that the legislature may grant or 
 withhold authority to sell at its pleasure. And 
 granting such authority, it is held by the licensee at 
 the mere pleasure or grace of the body granting it. 
 It is held by him not as a primary and absolute 
 right , but as a favor , which, like all favors, must be 
 received upon such terms and conditions and subject 
 to such burdens and inconveniences as the donor 
 thinks proper to impose and the donee elects to ac- 
 cept.’ ? 
 
 “Unlike other trades and employments which it 
 is the right of the citizen to pursue, undisturbed by 
 arbitrary legislative interference and control, the 
 person who engages in this must, within the limita- 
 tions above indicated, do so subject to such dis- 
 advantages as may be presented by the law-making 
 power which authorizes it.” 
 
 “The doctrine that inspection fees legitimately 
 cannot exceed the proper cost of inspection has no 
 application to the facts of this case. That rule ap- 
 plies to those callings which the State may properly 
 regulate, but has no power absolutely to suppress ; 
 but even in the latter case it is not restricted to 
 the mere cost of inspection. (City of St. Charles 
 vs. Eisner, 155 Mo. 671.)” 
 
 Judge Gantt in concluding his opinion that the Beer 
 Inspection Law was a police regulation, and a license on the 
 occupation, and not a tax upon property. (State vs. Bixman, 
 supra), on page 24, said: 
 
 “Having thus indicated the fundamental prin- 
 ciples which must control in our construction of the 
 act of May 4, 1889, (Beer Inspection Law), we are 
 prepared to answer the question propounded as to 
 
43 
 
 the nature of the exaction prescribed by the statute. 
 In our opinion, it is a police regulation , imposing 
 conditions upon the business of manufacturing and 
 selling beer and malt liquors in this State, which 
 business the State may absolutely suppress, or per- 
 mit upon such terms as the legislature may pre- 
 scribe. We construe the act in view of all its parts 
 and in connection with other license laws of this 
 State, and hold that the fee exacted is the price 
 which the State demands for the privilege of doing 
 the business of brewing and selling beer and malt 
 * liquors in this State, and it is immaterial by what 
 name it is called and being such is not a tax upon 
 property within the meaning of our Constitution, 
 and hence the objections that it is not levied accord- 
 ing to value and is not uniform must fall.” 
 
 These utterances of the Supreme Court of this State and 
 the Supreme Court of the United States together with those 
 of the appellate courts of other states, leave no room for 
 doubt. It clearly and affirmatively appears by an examina- 
 tion of the act itself and these and other decisions, that the 
 license law of 1909, is not susceptible to the charge of being 
 a revenue measure, a tax upon property, or that it imposes 
 taxes on occupations, persons and property which are not 
 uniform on the same class and violative of section 3, article 
 X of the State Constitution. 
 
 The presumption as to the constitutionality of the law in 
 this respect must be indulged, and the force of defendant’s 
 attack as to this challenge has not been sufficient even to dis- 
 turb the presumption. 
 
 (d) 
 
 The defendant seems to rely upon the fact that the 
 Supreme Court of this State, in the case of State vs. 
 
44 
 
 Bengsch, 170 Mo., page 81, held the act of 1901, providing 
 for a State tax on distilled liquors, and creating the office of 
 special license commissioner was unconstitutional. The court 
 did so by reason of the fact the act was a revenue measure, 
 a tax upon property , and therefore not uniform in its opera- 
 tion upon the same class of subjects in violation of section 3, 
 article X of the State Constitution. 
 
 The defendant and its counsel are hypercritical in pre- 
 senting the motion to quash and the brief thereon, but fail 
 to distinguish any difference between the decision in the 
 Bengsch case and the principles of law when applied to the 
 act now under review by this court. The act of 1901 was an 
 act providing a tax on property. The title to the act pro- 
 vided that it was a <( tax on distilled liquors If the title 
 to the act declares it to be a tax on distilled liquors, and dis- 
 tilled liquors being property, there is no other conclusion to be 
 reached. 
 
 Under the Constitution of Missouri, the legislature can 
 only acquire its information as to the general subject and 
 contents of a bill by and through its title. If that title dis- 
 closes upon its face, as in the act of 1901, that it is a tax on 
 property, and so states in plain language, that is the highest 
 knowledge and information which can be imparted to the 
 legislature. It is the best evidence, and in legislating upon 
 the subject, it must be presumed the legislature knew the act 
 it was adopting was a revenue measure, a tax upon property, 
 instead of a license act under the police power, and was So 
 intended. 
 
 As a further evidence of this knowledge upon the part 
 of the legislature passing the act of 1901, it adopted an 
 emergency clause which provided, that, by reason of a de- 
 ficiency existing in the revenues of the State, the law should 
 become operative at once. As was said by Judge Sherwood in 
 that case on page 107, this became a direct vote and expres- 
 sion of three-fourths of the members that they, in their 
 
45 
 
 legislative capacity , considered and understood the act to be 
 a revenue measure, passed for that purpose and placed in 
 operation immediately and without waiting for the expiration 
 of the constitutional limit of ninety days. 
 
 If the title to the bill affirmatively states it is a “tax on 
 property” and the emergency clause to such bill states, it is 
 to supply a deficiency in the revenues of the State, the courts 
 must accept the declaration of the legislature as to its intent 
 in the passage of the law. 
 
 However, there is no such fact or contention relative to 
 the act of 1909. The title to the bill instead of reciting that 
 it is a tax on property, contains the apt, appropriate and 
 correct statement that it is, £ ‘ an act to license manufacturers, 
 etc.” Here we have the direct statement in the title which 
 imparts to the legislature the information as to the subject 
 and contents of the bill; that the bill is a license measure , 
 regulating the traffic of liquors within the police power of the 
 State. 
 
 All these objections presented by the defendant were 
 raised and urged against the dramshop laws of this State, but 
 the Supreme Court decided against the contentions. 
 
 Troll vs. Hudson, 78 Mo. 302. 
 
 State vs. Bixman, 162 Mo. 1. 
 
 (e) 
 
 The defendant objects and says, the act of 1909 exempts 
 from the operation of the law wines or spirits made from 
 grapes or fruits grown in this State and exempts from its 
 operation liquors sold by dramshop keepers. The dramshop 
 keeper is licensed under another law and pays his license to 
 sell drinks at retail. He belongs to a special class already 
 provided for, and it is proper to exempt him here. That 
 does not affect the uniform operation of the law upon each 
 of the susceptible classes provided for in the act. The act 
 
46 
 
 applies to manufacturers, rectifiers, wholesalers and merchants 
 and graduates the charge or license fee then for the various 
 classes arising under the law. 
 
 On page 23, of defendant’s brief, it says: “The act of 
 June 1st, 1909, is designed to apply to wholesalers, retailers, 
 manufacturers and rectifiers of malt, fermented and spiritu- 
 ous liquors. If such was its application in fact there probably 
 could be no exception taken to it as violative of the ‘Due 
 Process’ clauses of the State and Federal Constitutions. But 
 under the specific terms of the act the manufacturers and 
 dealers in intoxicating liquors are divided and classified and 
 certain classes are exempted entirely from payment of the 
 tax imposed while others are made subject to the payment of 
 a less amount than others.” 
 
 This is exactly what the State has a right to do. It has 
 a right to divide and classify. It has a right to license certain 
 classes and exempt certain other classes of the liquor dealers 
 from its operation. It has a right to graduate the charge 
 as to each special class. It has a right to make it a specific 
 sum on one class and to graduate the charges or license fee 
 as to the other classes in proportion to their output or sales. 
 
 That the State has all these rights under its police 
 power in regulating the liquor traffic is too well settled to 
 admit of controversy. The trouble with the defendant is, 
 that its argument at all times is based on the one theory of the 
 taxation of property. 
 
 In support of the State’s position, Judge Gantt in the 
 case of State vs. Bixman, 162 Mo. 1. c. 30, said : 
 
 ‘ ‘ But we hold that it is competent for the legis- 
 lature to fix the amount in proportion to the busi- 
 ness done or the output sold as in this case. That 
 is a matter for the law-making power to determine, 
 and as we have already said, it does not follow that 
 a license must issue for a fixed period. ’ ’ 
 
47 
 
 Again, on page 35, he Says: 
 
 “Holding as we do, that this is not a property 
 tax, but a proper police regulation of an otherwise 
 inhibited article * * * it is not open to the objection 
 that it exceeds the rate of property taxation. But 
 counsel urge another view and it is this: Treated 
 as a charge or fee, they say this exaction is not 
 uniform, because it is imposed upon the business of 
 those who manufacture and sell beer and malt 
 liquors only, and not upon the business of all who 
 deal in intoxicating liquors. In other words, the 
 objection is that in segregating the manufacture and 
 Sale of beer and malt liquors the legislature has made 
 an arbitrary classification and thus unjustly imposes 
 a burden upon this particular kind of business when 
 if imposed at all it should be upon the business of 
 all who are engaged in the manufacture and sale 
 of intoxicating liquors of every kind ; that it is class 
 legislation. To this we do not assent. The State 
 is under no obligation to permit the manufacture of 
 any kind of intoxicating liquors. It may impose 
 one kind of restrictions upon one kind of intoxicants 
 and another kind upon another sort.” 
 
 Again on page 37, he says: 
 
 1 1 The law as to its taxing features operates upon 
 a business and not upon property within the mean- 
 ing of the section referred to, and hence is not re- 
 quired to be uniform to all forms of traffic or to all 
 classes. A difference was made between a manu- 
 facturer and a wholesaler, and it was held proper 
 classification.” 
 
 On page 24, he sayS: 
 
48 
 
 “It is immaterial by what name it is called, it 
 is not a tax upon property within the meaning of 
 our Constitution and hence the objections that it is 
 not levied according to value, and is not uniform 
 and exceeds the Constitutional rate, must fall. ,, 
 
 In the case of Clark vs. Titusville, 184 U. S. 1. c. 330, 
 the court said: 
 
 ‘ ‘ Classification according to the amount of busi- 
 ness done has been frequently recognized by the 
 Federal courts.” 
 
 In the case of Clark vs. Titusville, supra, the court held 
 that an ordinance imposing a license tax upon the merchants 
 of the city by which they are divided into classes according 
 to the amount of their sales, each class including all whose 
 sales range between a certain minimum and maximum amount 
 does not violate the equality clause of the United States Con- 
 stitution, although the result is to make persons in different 
 classes pay liff event rates, and to make those in the same class 
 pay at a different ration if the amounts of their sales differ. 
 
 If these rules are applicable to any class of business, 
 they are certainly applicable to that of the traffic of intoxicat- 
 ing liquors. The Supreme Court of this State and the 
 United States have so held directly. Affirming these principles 
 is the doctrine laid down in the text works. 
 
 Black on Intoxicating Liquors, sections 109, 232. 
 
 The contention of the defendant is without avail. The 
 operation of the law is uniform upon each class. It is not 
 necessary to legislate as to dramshop keepers, druggists, etc. 
 The legislature can legislate as to any part or all of the 
 various classes engaged in the traffic of intoxicating liquors. 
 It can impose a license on certain named classes and leave 
 
49 
 
 all other classes untouched, and those named cannot be heard 
 to complain. The fact that, in the license act of 1909, no 
 license is required of certain other classes of sellers of liquors 
 is of no importance, and in no wise affects the validity of the 
 law. Dramshop keepers and druggists are regulated by 
 other statutes passed by the legislature by virtue of its police 
 power, and those requirements operate on each as a class and 
 those laws do not affect manufacturers, merchants, whole- 
 salers and rectifiers. The decisions and authorities cited in 
 this brief place this beyond cavil or doubt. 
 
 Uniformity on all members of a class suffices, and this 
 is true even though the business or the class is one not en- 
 gaged in the selling of liquor and under bane of the law, but 
 engaged in the ordinary business affairs, private or public. 
 
 State vs. Cantwell, 179 Mo. 245. 
 
 State vs. Swagerty, 203 Mo. 517. 
 
 Hume vs. Railway, 82 Mo. 1. c. 231. 
 
 Missouri Pacific Ry. vs. Hume, 115 U. S. 1. c. 522, 
 523. 
 
 The question as to exempting wines and liquors made 
 from grapes grown in this State has been held against defend- 
 ant’s contention in the following cases: 
 
 State vs. Stucker, 58 Iowa 496. 
 
 McGuire vs. State, 42 Ohio St. 530. 
 
 State vs. Bixman, 160 Mo. 1. 
 
 Refining Co. vs. Louisiana, 179 U. S. 89. 
 
 Williams vs. Fears, 179 U. S. 270. 
 
 Cox vs. Thompson, 202 U. S. 446. 
 
 The case of Cox vs. Thompson, supra, involved the consti- 
 
 p— 4 
 
50 
 
 tutionality of an act in the Revised Statutes of Texas. It 
 was contended the act was unconstitutional because in pro- 
 viding taxes on the sellers of intoxicating liquors, it contained 
 a provision exempting wines produced from grapes grown in 
 the State, while the same is in the hands of the producers 
 or manufacturers thereof. The Supreme Court of the United 
 States held, this exemption did not affect the validity or 
 constitutionality of the law, and did not violate the constitu- 
 tional provisions in reference to equal protection of the law. 
 
 A manufacturer engaged in the business of refining sugar 
 is not denied the equal protection of the laws because of the 
 discrimination made by the Constitution of Louisiana im- 
 posing a license tax upon manufacturers engaged in such 
 business, but exempting from the tax those who refined the 
 products of their own plantations. 
 
 Sugar Refining Co. vs. Louisiana, 179 U. S. 89. 
 
 To the same effect are the casese of 
 
 Kidd vs. Alabama, 188 U. S. 732. 
 
 Cox Vs. Thompson, 202 U. S. 446. 
 
 Cargill Co. vs. Minnesota, 180 U. S. 452. 
 
 Armour Packing Co. vs. Lacey, 200 U. S. 226. 
 
 ‘Williams vs. Fears, 179 U. S. 270. 
 
 Atkin vs. Kansas, 191 U. S. 207. 
 
 (f) 
 
 But for the sake of argument, say the provision of the 
 law of 1909, exempting wines or spirits made from grapes 
 or fruits grown in this State, violates the constitutional pro- 
 vision under consideration, still that would be of no conse- 
 quence. The challenge in that particular does not and would 
 not affect the law in a vital way. 
 
 That exemption can be stricken from the act and the 
 
51 
 
 bill survive, and be as valid and good for the purposes for 
 which enacted as though it remained in the bill. 
 
 On this subject, in the ease of Tieman vs. County 
 Treasurer, 102 U. S. 123, the court in passing upon a similar 
 statute in the State of Texas, which provided the act should 
 not be so construed as to include any wines or beer manu- 
 factured in that State or when sold by druggists for medical 
 purposes, said: 
 
 “The statute of Texas is inoperative, so far as 
 it makes a discrimination against wines and beer 
 imported from other states, when sold separately 
 from other liquors. A tax cannot be exacted for 
 the sale of beer and wines when of foreign manu- 
 facture if not exacted from their sale when of home 
 manufacture. * # # # In the present case the 
 
 petitioners described themselves as engaged in the 
 occupation of selling spirituous, vinous, malt and 
 other intoxicating liquors. There is no reason why 
 they should be exempted from the tax when selling 
 brandies and whiskies and other alcoholic drinks in 
 the quantities mentioned, because they could not be 
 thus taxed if their occupation was limited to the sale 
 of wine's and beer. We see, therefore, no error in 
 the ruling of the Supreme Court of Texas and its 
 judgment is accordingly affirmed. ” 
 
 The information filed against the defendant by the 
 prosecuting attorney of the city of St. Louis, does not charge 
 it with the manufacture and sale of wines or spirits made 
 from grapes or fruits grown in this State. On the other hand 
 the information charges it with manufacturing, rectifying and 
 Selling other intoxicating liquors not being wines or spirits 
 made from grapes or fruits grown in this State, etc., etc. 
 The information removes the defendant from the exemption 
 
52 
 
 named in the act. It manufactures and sells liquors other 
 than those made from grapes and fruits. The act does not 
 discriminate as to any class. If discrimination, it is as to 
 liquors from other States made from grapes and fruits. But 
 that does not affect the equal operation on the same classes. 
 Each is affected alike. Each can go to other States and buy 
 other liquors, etc., and uniformity on the Same classes still 
 adheres. 
 
 State vs. Bixman, 162. Mo. 1. c. 40. 
 
 Black on Intoxicating Liquors, Sec. 109. 
 
 1 
 
 Justice Field, in delivering the opinion in the case of 
 Tiernan vs. County Treasurer, 102 U. S. 123, said: 
 
 “If a party be engaged exclusively in the sale 
 of these liquors, or in any business for which a tax 
 is levied because it embraces a sale of them, he may, 
 justly object to the discriminating character of the 
 act, and on that account challenge its validity under 
 the decision in question; but if engaged in the 
 sale of other liquors than beer or wines , he cannot 
 complain of the State tax on that ground. The 
 Statute makes no discrimination in favor of other 
 liquors of home manufacture. Whilst it groups the 
 sale of several kinds of liquors as one occupation, it 
 evidently intends that the occupation which consists 
 in the sale of any one of the several liquors named in 
 the quantities mentioned shall be subject to tax as 
 though it read : ‘ for selling spirituous, or vinous, or 
 malt, or other intoxicating liquors.’ It does not re- 
 quire, to justify the tax, that a party shall be 
 engaged in the sale of all the liquors mentioned as 
 well as other liquors.” 
 
 Under this holding of the Supreme Court of the United 
 
53 
 
 States, the defendant cannot on account of this exception, 
 challenge the validity of the statute, because it is engaged in 
 the manufacture and sale of liquors, other than those made 
 from grapes and fruit. But, even if this were not true, the 
 act could be held inoperative as to that exemption and survive 
 and be operative as to the remaining portions just as the 
 Texas statute. If this exemption provided in the act were 
 unconstitutional, it would only be unconstitutional in that 
 particular respect, and consequently would not affect the re- 
 maining constitutional provisions. 
 
 The law is well settled in this State that part of a statute 
 may be declared unconstitutional and the residue declared 
 constitutional and valid. The test is not whether the void 
 and valid parts are found in the same section, but rather 
 whether they are essentially and inseparably connected. If 
 the unconstitutional part can be separated from the act and 
 leave the act capable of being executed in conformity with 
 the apparent legislative intent, regardless of that which is 
 rejected, the valid portions must stand and the other parts 
 of the act regarded as stricken out. 
 
 Birch vs. Plattsburg, 180 Mo. 1. c. 418. 
 
 State vs. Bockstruck, 136 Mo. 1. c. 353. 
 
 State ex rel. vs. Field, 119 Mo. 1. c. 612. 
 
 Railroad vs. Evans, 85 Mo. 307. 
 
 State ex rel. vs. Pond, 93 Mo. 1. c. 635. 
 
 Allen vs. Louisiana, 103 U. S. 80. 
 
 Tiernan vs. County Treasurer, 102 U. S. 123. 
 
 In the case of Birch vs. Plattsburg, supra 1. c. 418, Judge 
 Brace in rendering the opinion of the Court said: 
 
 “The law is, that part of a statute may be un- 
 constitutional and void, and the residue constitu- 
 tional and valid. The test is not whether the void 
 
54 
 
 and valid parts are contained in the same section, 
 for the distribution into sections is purely artificial ; 
 but rather, whether they are essentially and in- 
 separably connected ; as it would be inconsistent with 
 all just principles of constitutional law to adjudge 
 enactments not obnoxious to any just constitutional 
 exceptions, void, because they are associated in the 
 same act, but not connected with or dependent on 
 others which are unconstitutional. ’ ’ * * ■ * 
 
 “If when the constitutional part is stricken out 
 that which remains is complete in itself and capable 
 of being executed in accordance with the apparent 
 legislative intent, it must be sustained.” 
 
 The clause or exception thrown into the act of 1909, has 
 no connection with the objects and purposes of the act, and 
 can be removed, and the act be capable of being executed in 
 accordance with the apparent legislative intent. It does not 
 disturb the harmony of the law or its machinery or in- 
 capacitate it in any way. 
 
 Judge Sherwood, in speaking for the court, in the State 
 vs. Bockstruck, 136 Mo. 1. c. 353, said: 
 
 “Now nothing is better settled than that a part 
 of a law may be declared constitutionally invalid, 
 and yet another portion properly separable there 
 from, and therefore unexceptionable in every par- 
 ticular. This may be so even though the sound 
 and unsound are in one section together. This is 
 always the rule unless the parts sound and unsound 
 are so mutually related, so blended together, as to 
 constitute an entirety, making it evident that unless 
 the act be carried into effect as a whole, it could not 
 have received the legislative sanction.” 
 
55 
 
 Measured by this rule, the contention as to the exemption 
 could be held good and in no wise affect the validity of the 
 law and its proper inforcement. 
 
 Judge Gantt, in the case of State ex rel. vs. Field, 119 
 Mo. 1. c. 612, quoted the following language approvingly from 
 the 85th Missouri, 307, to wit: 
 
 “ Sometimes a statute is unconstituional in part 
 and constitutional as to the residue, and if the uncon- 
 stitutional part is not inseparably connected in sub- 
 stance with that which is valid and complete in 
 itself, and capable of being executed in conformity 
 with the apparent legislative intent, regardless of 
 that which is rejected, the unconstitutional part may 
 be regarded as stricken out.” 
 
 i 
 
 It would not be contended for a moment that the excep- 
 tion is inseparably connected in substance with , the remain- 
 ing portions of the act. The mere fact that a clause in an 
 act appears as an exception is the strongest and highest evi- 
 dence that it is not inseparably connected with the sub- 
 stance of the act, because the law has been rendered com- 
 plete up to the point of the exception and the exception is 
 made simply for the purpose of declaring, that the law 
 already set out and capable of complete enforcement shall 
 not, as written, apply to the exception. 
 
 Justice Norton, in the case of State ex rel vs. Pond, 93 
 Mo. 1. c. 635, said: 
 
 “It is not pretended that unconstitutional pro- 
 visions in a law make it totally void. On the con- 
 trary, it is well settled that they do not, and that 
 a law may well stand so far as it is constitutional, 
 although it has in it certain provisions which are not 
 valid. ’ ’ 
 
56 
 
 We could multiply these decisions upon this point but 
 it is unnecessary so to do. For the purposes of sustaining the 
 present law it is immaterial what view the court entertains as 
 to the exemptions. It may hold them valid or invalid, and 
 its action will in no wise affect the validity of the act and its 
 proper enforcement. 
 
 (g) 
 
 As defendant has diagnosed the act of 1909 as a revenue 
 measure, a tax upon the property, its argument and brief are 
 not pertinent. The act is a license law enacted by virtue of 
 the police power of Missouri intended to regulate a certain 
 traffic which is illegal without a special permit from the 
 State. 
 
 The brief of defendant’s counsel is very good were the 
 act under consideration an act authorizing the levying of 
 taxes upon property. Counsel finds fault with the gradua- 
 tion and classification of the different occupations in section 
 5, and contends that action makes it a revenue measure. The 
 provisions of section 5 were proper because it became neces- 
 sary to graduate the license tax and divide the occupation 
 into the several classes in order that the law might be uni- 
 form in its operation upon the same class. 
 
 The Supreme Court of the United States in the case of 
 Clark vs. Titusville, in Yol. 184, U. S. p. 329, held: 
 
 “An ordinance imposing a license tax upon the 
 merchants of the city, by which they are divided 
 into classes according to the amount of their sales, 
 each class including all whose sales range between a 
 certain minimum and maximum amount, does not 
 violate the equality clause of the United States 
 Constitution, 14th amendment, although the result 
 is to make persons in different classes pay different 
 
57 
 
 rates , and to make those in the same class pay at a 
 different ratio if the amounts of their sale's differ.’ 7 
 
 If this be true in reference to the business of merchants, 
 a business not under legal condemnation, how can it be said, 
 the act of 1909, a license law leveled against an illegal busi- 
 ness cannot divide the manufacturers and wholesaler's into 
 classes and graduate the license tax accordingly? For in- 
 stance, in the merchants’ class a fee of $100.00 on sales not 
 exceeding 5,000 gallons in one year. In the next class of 
 merchants a fee of $150.00 on Sales more than 5,000 and less 
 than 10,000 gallons in one year, and $1.00 for each 1,000 
 gallons more than 10,000 gallons or fraction of 1,000 gallons 
 more than 500, the maximum, not to exceed in the aggregate 
 the sum of $1,000.00. The law operates equally on each 
 class according to their sales. The same uniformity is found 
 when the law is applied to the wholesale classes provided for. 
 The same uniformity exists when applied to the manufactur- 
 ing classes provided for, and to every class susceptible under 
 the law or the graduations under any such classes. There is 
 absolute harmony and equality throughout every provision. 
 It is only required to meet the test as a license law , but does, 
 as a matter of fact, comply with the rules laid down and an- 
 nounced as applicable to other occupations, which are not 
 denominated illegal under our laws. 
 
 State vs. Bixman, 162 Mo. 1. c. 36, 37. 
 
 Black on Intoxicating Liquors, 109, 232. 
 
 The defendant’s counsel does not attempt to cite any 
 authorities applicable under a license law to the manufacture 
 and sale of intoxicating liquors. They cite nothing but cases 
 applicable only to the taxation of property. 
 
 They cite the case of State vs. Bengsch, 170 Mo. 81, as 
 an authority bearing out their contention, but we have fully 
 
58 
 
 discussed that case heretofore. The court held the law to he 
 a tax on property, thereby removing it from the license law 
 class and consequently that decision is not an authority upon 
 any proposition here involved. It would serve no useful 
 purpose for the State to discuss any of the cases further 
 which the defendant presents for the reason heretofore stated, 
 its counsel has proceeded upon the sole theory that the 
 measure is a revenue measure, and a tax upon property. 
 Having failed entirely in maintaining itself as to that posi- 
 tion, its challenges in every particular must fall. 
 
 The holding in the case of Clark vs. Titusville, U. S. 184, 
 page 329, above mentioned, which holding is fully set out, is 
 the holding of many of the States. It has been held, you could 
 graduate the tax upon an occupation or vocation according 
 to the extent of the business, in North Carolina. 
 
 State vs. Powell, 100 N. C. 525. 
 
 It has been held livery stables could be charged license 
 fees in proportion to the number of carriages kept for hire. 
 
 Howland vs. Chicago, 108 111. 500. 
 
 It has been held that a license tax may be imposed upon a 
 hotel and the fee graduated according to the number of 
 rooms devoted to the accommodation of the public. 
 
 St. Louis vs. Bircher, 7 Mo. App. 169. 
 
 St. Louis vs. Bircher, 76 Mo. 431. 
 
 The following authorities selected from other jurisdic- 
 tions sustain the principle announced in the cases above 
 cited. 
 
 Ex parte Mount, 66 Cal. 448. 
 
 Allentown vs. Gross, 132 Pa. 319. 
 
59 
 
 Knisely vs. Cottrell, 196 Pa. 614. 
 
 Sacramento vs. Crocker, 16 Cal. 119. 
 
 'Williamsport vs. Wenner, 172 Pa. 173. 
 
 Titusville vs. Clark, 195 Pa. 634. 
 
 County vs. Greenburg, 120 Cal. 300. 
 
 Burlington vs. Insurance Co., 31 Iowa 102. 
 
 00 
 
 The decisions in Missouri in addition to authorities 
 already cited in this and other states authorizing the gradua- 
 tion in occupations, no matter whether the occupation be 
 legal or illegal, are as follows: 
 
 State vs. Bixman, 162 Mo. 1. c. 36, 37. 
 
 Kansas City vs. Richardson, 90 Mo. App. 450. 
 
 St. Louis vs. Bowler, 94 Mo. 630. 
 
 Masonic Aid Association vs. Waddill, 138 Mo. 628. 
 
 St. Louis vs. Green, 7 Mo. App. 468. 
 
 St. Louis vs. Green, 70 Mo. 562. 
 
 Kansas City vs. Grush, 151 Mo. 562. 
 
 St. Louis vs. Sternberg, 69 Mo. 289. 
 
 St. Charles vs. Eisner, 155 Mo. 671. 
 
 . City of Aurora vs. McGannon, 138 Mo. 38. 
 
 Troy vs. Harris, 102 Mo. App. 51. 
 
 Troll vs. Hudson, 78 Mo. 302. 
 
 The above authorities sustain the position of the classifica- 
 tion on graduation no matter whether the business being con- 
 ducted is that of a merchant, etc., or one engaged in the traffic 
 of intoxicating liquors. 
 
 The Kansas City Court of Appeals in the case of Kansas 
 City vs. Richardson, supra, on page 455, said : 
 
60 
 
 “The constitutional provision just referred to 
 (Sec. 3, Art. X, Missouri Constitution), does not in- 
 clude every species of taxation. It is restricted in 
 its application to property alone. It is without ap- 
 plication to taxes on privileges or occupations, or on 
 the exercise of a civil right. ” * * * 
 
 “The defendant insists that the license tax re- 
 quired by the present ordinance is a tax upon 
 personal property. To this insistence we cannot yield 
 or assent, for the reason that we think the law is 
 now well settled, at least as far as we are concerned, 
 that it is a license tax on a privilege connected with 
 property and not upon the property, and though 
 imposed for revenue, it is a tax in the nature of a 
 license, because it is a permission to do that which, 
 after the passage of the ordinance, it became unlaw- 
 ful to do without having first obtained a permis- 
 sion. ’ ’ 
 
 The court in the above case was passing upon the 
 ordinance dividing vehicles and teams into different classes, 
 and imposing an occupation tax on each separate class. If 
 this be the law in reference to so legitimate an occupation in 
 the first instance, how can it be said, that a license law classi- 
 fying and graduating an illegal business would violate the 
 Constitution ? 
 
 In the case of city of St. Louis vs. Bowler, 94 Mo. 1. c. 
 634, Judge Sherwood in discussing ordinance 12473, to 
 license, tax and regulate agents, real estate agents and brokers, 
 financial agents, mercantile agents, and all other business, 
 trades, avocations, etc., and wherein a Sewing machine agent 
 was convicted for failing to take out a license, said : 
 
 “The ordinance is not repugnant to the pro- 
 visions of section 3, article X of our State Constitu- 
 tion. That section provides that taxes, shall be 
 
61 
 
 uniform upon the same class of subjects within the 
 territorial limits of the authority levying the tax. 
 
 # # * All sewing machine agents are taxed alike, 
 and this meets the constitutional requirement # 
 
 * * * that other agents, agents engaged in other 
 
 classes of business are not taxed by the city, does 
 not affect the constitutional principle controlling 
 this case. The only prohibition of the section being 
 discussed is that which forbids inequality, favoritism, 
 to be exercised in imposing taxes upon the same class 
 of subjects. So long as this is not done, the Con- 
 stitution is not infringed, nor the rules of uniformity 
 and inequality violated.” 
 
 I have cited and discussed these cases as to the various 
 businesses other than the traffic in intoxicating liquors, 
 simply and purely to present to the Court the rule and appli- 
 cation of the provisions of the Constitution of the State of 
 Missouri in question as to those classes. 
 
 The defendant has left out of its brief the key-note, to 
 wit : that the rules are different when applied to the licensing 
 of a business already under legal condemnation, and which 
 cannot be pursued as a fundamental right, and a business 
 which is not declared illegal. 
 
 The courts of this State have uniformly held , that the 
 license tax exacted by the statute regulating dramshops is not 
 a tax within the meaning of section 3, article X, of the Con- 
 stitution of Missouri, and also that the license tax regulating 
 the manufacture and sale whether at wholesale or retail does 
 not violate said section and provision. 
 
 Troll vs. Hudson, 78 Mo. 302. 
 
 State vs. Bixman, 162 Mo. 1. 
 
 (And other cases cited before.) 
 
62 
 
 The State has presented the law under defendant’s 
 ’second challenge at length for the reason, the principles an- 
 nounce and the questions discussed under this division are 
 really sufficient to meet, and do meet, all the remaining chal- 
 lenges of the defendant, and it will be unnecessary for the 
 State to review the remaining objections at any length. It 
 would be but a waste of time, speech and research. 
 
 III. 
 
 THE ACT DOES NOT VIOLATE SECTION 4. AR- 
 TICLE X OF THE CONSTITUTION OF MIS- 
 SOURI, AND DOES NOT IMPOSE A TAX ON 
 PROPERTY IN THE STATE NOT IN PROPOR- 
 TION TO ITS VALUE, AS CHARGED IN THE 
 THIRD SPECIFICATION. 
 
 The defendant is at sea again, because he thinks the 
 law is a 'property tax. Let us again state, it is a license law 
 regulating a traffic, which is illegal without a special permit 
 from the State. The authorities heretofore cited answer 
 this objection. 
 
 Judge Gantt, in the case of State vs. Bixman, 162 Mo. 
 1. c. 24, on this point said : 
 
 “We construe the act in view of all its parts, 
 and in connection with other license laws of this 
 State, and hold that the fee exacted is the price 
 which the State demands for the privilege of doing 
 the business of brewing and selling beer and malt 
 liquors in this State and it is immaterial by what 
 name it is called, and, being such, it is not a tax 
 upon property, within the meaning of our Constitu- 
 tion, and hence the objections that it is not levied 
 according to value must fall.” 
 
63 
 
 On page 30 of the same case, the court said : 
 
 “We hold that it is competent for the Legisla- 
 ture to fix the amount in proportion to the business 
 done or the output sold as in this case. That it is 
 a matter for the law-making power to determine, 
 and, as we have already said, it does not follow 
 that a license must issue for a fixed period. The 
 imposition of the tax is one thing; the license, an- 
 other.” 
 
 On page 36 of the same case, the court said : 
 
 “We think it is competent for the General As- 
 sembly to classify the different kinds of liquor 
 dealers and impose differential taxes upon such 
 classes. * * * The law as to its taxing features 
 operates upon a business and not upon property, 
 and hence is not required to be uniform to all forms 
 of traffic or to all classes, a difference was made be- 
 tween a manufacturer and a wholesaler, and it was 
 held proper classification.” 
 
 To the same effect is 
 
 Black on Intoxicating Liquors, Secs. 109, 232. 
 
 In the license act of 1909 the license fee is fixed at a fee 
 certain as to some classes and according to the output sold 
 in others. So, under either view, the State is safe. If the 
 license is a certain stated amount, that is legal. If it is an 
 amount to be fixed and determined by the amount of busi- 
 ness done or output sold, that is legal. 
 
 The court, on page 31 of case of State vs. Bixman, 
 supra , said : 
 
64 
 
 “But there is no necessary connection what- 
 ever between them (that is license and taxation). 
 A business may be licensed, and not be taxed ; or it 
 may be taxed, and yet not licensed. And so far is 
 the tax from being necessarily a license that pro- 
 vision is frequently made by law for the taxation 
 of a business that is carried on under a license ex- 
 isting independent of the tax.” 
 
 The provisions of this section and article of the Mis- 
 souri Constitution apply only to a property tax; that is to 
 say, the cases where there is a specific and tangible property 
 capable of valuation and of being taxed in proportion 
 thereto. 
 
 This section of the Constitution does not abridge the 
 power of the Legislature to provide for revenue from sources 
 other than property. It does not forbid license fees on 
 privileges or occupations. Especially is this true as to li- 
 censes which are in the nature of police regulations. 
 
 State vs. Bixman, 162 Mo. 1. 
 
 City of Carthage vs. Bhodes, 101 Mo. 175. 
 
 Express Co. vs. St. Joseph, 66 Mo. 675. 
 
 (And other cases.) 
 
 The decision of the court in the Bixman case is alone 
 sufficient to dispose of this contention of the defendant. 
 This, however, with the other decisions, makes it unneces- 
 sary for the State to further discuss this challenge. 
 
65 
 
 IV. 
 
 THE ACT DOES NOT VIOLATE SECTIONS 6 AND 7 
 OF ARTICLE X OF THE CONSTITUTION OF 
 MISSOURI AS TO THE EXEMPTION OF PROP- 
 ERTY FROM TAXATION, AS CHARGED IN THE 
 FOURTH SPECIFICATION. 
 
 These sections of the Constitution relate only to exemp- 
 tions connected with the taxation of property. The defend- 
 ant continues to labor under the mistaken apprehension 
 that the act under consideration is one providing for a tax 
 upon property. Its contention falls, because the act is, as 
 heretofore stated, a license law. The State does not take 
 its challenge seriously. 
 
 In the case of State ex rel. Fath vs. Henderson, 160 
 Mo. 1. c. 217, Judge Gantt, delivering the opinion for the 
 court, said: 
 
 “The contention, like others already discussed, 
 is predicated upon the fact that this is a property 
 tax, for it is evident that sections 6 and 7 of ar- 
 ticle X of the Constitution deals directly with 
 property taxation , and limits the amount of prop- 
 erty which may be exempted from such taxation, 
 but as we have already held this is not a property 
 tax , * * * it necessarily follows that said sec- 
 
 tions of the Constitution have no application to the 
 statute under discussion” 
 
 Before these sections could be applicable the law must 
 be declared a revenue measure and a tax upon the property . 
 As this is not the case, and as I have cited numerous authori- 
 ties and argued that feature at great length, it is useless to 
 
 p— 5 
 
66 
 
 repeat any portion of the same under this challenge. Here 
 we are dealing with the licensing of the traffic and the con- 
 stitutional provision has no application. 
 
 Again, if this challenge were good, it would not affect 
 the validity of the act in any way. The law would survive 
 and stand and be susceptible of enforcement even if the 
 contention were true. 
 
 State ex rel. vs. Henderson, 160 Mo. 1. c. 217. 
 
 i 
 
 i 
 
 ! 
 
 Y. 
 
 THE ACT DOES NOT VIOLATE SECTION 30, AR- 
 TICLE II OF THE CONSTITUTION OF MIS- 
 SOURI, AND ITS ENFORCEMENT WOULD NOT 
 DEPRIVE THE DEFENDANT OF ITS LIBERTY 
 AND ITS PROPERTY WITHOUT DUE PROCESS 
 OF LAW, AS CHARGED IN THE FIFTH SPECI- 
 FICATION. 
 
 In reference to this feature of the law, Black on In- 
 toxicating Liquors, in section 108, page 143, says : 
 
 “A statute taxing the business of liquor selling 
 may provide for the collection of the tax, * * * 
 
 and may imporse penalties for its non-payment. * 
 * * Such provisions cannot be said to deprive 
 
 the citizen of his rights or property without due 
 process of law.” 
 
 Black on Intoxicating Liquors, Secs. 37, 83, 108, 
 109. 
 
 Adler vs. Whitbeck, 44 Ohio, 539. 
 
 Legislation is not open to the charge of depriving one 
 of his rights without due process of law if it be general in 
 its operation upon the subjects to which it relates. 
 
67 
 
 State vs. Cantwell, 179 Mo. 1. c. 264. 
 
 Dent vs. West Virginia, 129 U. S. 114. 
 
 This section of the Constitution has no reference to 
 those statutes imposing license fees regulating a business 
 or occupation. If it has no application to such generally, 
 it clearly would have no application to a license fee regulat- 
 ing a traffic which, without the license, is illegal under the 
 laws of the State. 
 
 The defendant has no right to engage in the traffic of 
 intoxicating liquors at all. The State can abolish the traffic 
 entirely, and if it can abolish it and not thereby take its 
 property without due process of law, how can it be said his 
 property is taken without due process of law in regulating 
 the traffic? 
 
 In prohibiting the manufacture and sale of intoxicating 
 liquors in the State, it cannot be considered as impairing 
 the obligation of contracts, by legislative grant, at the time 
 of its enactment to manufacture or sell such liquors. 
 
 Black on intoxicating liquors, section 37, page 48, con- 
 tains in reference to the prohibition of the manufacture 
 and sale of intoxicating liquors, the following: 
 
 “And although it may deprive persons of the 
 right to pursue a business previously lawful, and 
 may have the effect of diminishing the value of 
 property owned by them, and especially adapted 
 to the continuance of the business, it does not, for 
 that reason, amount to a deprivation of their prop- 
 erty or liberty without due process of law, within 
 the meaning of the Constitution. Neither does it 
 violate the privileges or immunities secured to citi- 
 zens of the United States by the Fourteenth 
 Amendment.” 
 
68 
 
 This position is sustained by the following cases, aside 
 from those of the State: 
 
 Mugler vs. Kansas, 123 U. S. 623. 
 
 Crowley vs. Christensen, 137 U. S. 1. c. 91. 
 
 Cox vs. Texas, 202 U. S. 446. 
 
 Downham vs. Alexandria, 10 Wall, 173. 
 
 Kidd vs. Pearson, 128 U. S. 1. 
 
 Williams vs. Fears, 179 U. S. 270. 
 
 Moore vs. Indianapolis, 120 Ind. 483. 
 
 Drake vs. Kaiser, 73 Iowa, 703. 
 
 In the case of Mugler vs. Kansas, 123 U. S. 1. c. 659, 
 Justice Harlan, in speaking for the court, quoted approv- 
 ingly from the 97th U. S. 33, as follows: 
 
 “As a measure of police regulation looking to 
 the preservation of public morals, a State law pro- 
 hibiting the manufacture and sale of intoxicating 
 liqurs is not repugnant to any clause of the Con- 
 stitution of the United States.” 
 
 This declaration of the court is the law and is certainly 
 broad enough . If the State can prohibit the manufacture 
 and sale and those laws held constitutional and valid by 
 the Supreme Court of the United States, then, the holding 
 must be, as stated in the above quotation, that such acts do 
 not infringe any constitutional provision either of the State 
 or of the United States. Consequently such laws do not 
 impair the obligation of contracts or deprive or take prop- 
 erty or liberty without due process of law or abridge any 
 of the prvileges or immunities under either the State or 
 Federal Constitutions. 
 
 Then in licensing the business or occupation of manu- 
 
69 
 
 facturing and selling intoxicating liquors, how can the les- 
 ser law offend under the State and Federal Constitutions 
 when the greater law or that of prohibition could not of- 
 fend? If the whole does not violate any State or Federal 
 constitutional provision, certainly a lesser part would not 
 do so. 
 
 The State courts have held this section of the Consti- 
 tution is not violated by laws regulating businesses or oc- 
 cupations. 
 
 St. Louis vs. Lemp Mfg. Co., 139 Mo. 560. 
 
 State vs. Boring, 194 Mo. 1. c. 414. 
 
 State vs. Davis, 194 Mo. 485.' 
 
 State vs. Murlin, 137 Mo. 297. 
 
 State vs. Bixman, 162 Mo. 1. 
 
 The defendant has no vested rights to be disturbed or 
 affected by such legislation. The decisions heretofore cited 
 in State vs. Bixman and others have so held. Having no 
 vested rights, and this law being purely a license law, the 
 challenge made by the defendant as to this section is en- 
 tirely without merit. 
 
 VI. 
 
 THE ACT DOES NOT VIOLATE THE FIFTH 
 AMENDMENT TO THE CONSTITUTION OF 
 THE UNITED STATES, NOT BEING AN AT- 
 TEMPT TO DEPRIVE THE CITIZENS OF THE 
 STATE OF MISSOURI OF THEIR PROPERTY 
 WITHOUT DUE PROCESS OF LAW, AS 
 CHARGED IN THE SIXTH SPECIFICATION. 
 
 The Supreme Court of the United States for seventy- 
 five years has held that this, the -fifth amendment to the 
 
70 
 
 Federal Constitution, did not relate to laws enacted by the 
 States, but solely to the enactments of Congress. 
 
 The following decisions of the Supreme Court of the 
 United States settle this declaration conclusively: 
 
 Livingston vs. Moore, 32 U. S. 469. 
 
 Eilenbecker vs. District Court Plymouth Co., Iowa, 
 134 U. S. 34. 
 
 Brown vs. New Jersey, 175 U. S. 174. 
 
 Thorington vs. City Council of Montgomery, 147 
 U. S. 490. 
 
 In the case of Livingston vs. Moore, 32 U. S. 1. c. 562, 
 the court having under consideration the ninth amendment, 
 Justice Johnson, in speaking for the court, said: 
 
 “As to the amendments of the Constitution of 
 the United States, they must be put out of the case 
 since it is now settled that those amendments do 
 not extend to the States.” 
 
 In the case of Eilenbecker vs. The District Court of 
 Plymouth County, Iowa, U. S. 134 1. c. 34, the court having 
 under consideration the eighth amendment, Justice Miller, 
 in speaking for the court, said: 
 
 “The first three assignments of error * * * * 
 are disposed of at once by the principle often de- 
 cided by this court, that the first eight articles of 
 the amendments to the Constitution, have refer- 
 ence to powers exercised by the Government of the 
 United States and not to those of the States.” 
 
 In the case of Brown vs. New Jersey, 175 U. S. 1. c. 
 174, the court having under consideration certain amend- 
 ments to the Federal Constitution, Justice David Brewer, 
 in speaking for the court, said: 
 
71 
 
 “The first ten amendments to the Federal 
 Constitution contain no restrictions on the powers 
 of the State, but were intended to operate solely 
 on the Federal Government.” 
 
 These decisions clearly announce the doctrine that the 
 fifth amendment does not relate to the powers of the States 
 but of the United States. If the first ten amendments do 
 not apply, certainly the fifth amendment cannot, because it 
 is one of the ten. We can be more specific, however. 
 
 In the case of Thorington vs. The City Council of Mont- 
 gomery, 147 U. S. 1. c. 492, the court, having under consider- 
 ation the ; fifth amendment to the Constitution of the United 
 States, Chief Justice Fuller, in delivering the opinion of 
 the court, said: 
 
 “The fifth amendment operates exclusively in 
 restriction of Federal power, and has no applica- 
 tion to the States.” 
 
 This decision, with the others, places the matter beyond 
 the pale of controversy. 
 
 The challenge is so wanting in merit, the State will 
 not consider it further. If a challenge for this reason could 
 be made it must be made under the fourteenth amendment. 
 
 VII. 
 
 THE ACT DOES NOT VIOLATE SECTION 1 OF THE 
 FOURTEENTH AMENDMENT TO THE CON- 
 STITUTION OF THE UNITED STATES, AND 
 DOES NOT ATTEMPT TO ABRIDGE THE 
 PRIVILEGES AND IMMUNITIES OF CITIZENS 
 OF THE UNITED STATES, AND DOES NOT AT- 
 TEMPT TO DEPRIVE THE CITIZENS OF THE 
 SEVERAL STATES AND OF THE STATE OF 
 
72 
 
 MISSOURI OF THEIR PROPERTY WITHOUT 
 DUE PROCESS OF LAW, AND DOES NOT DENY 
 TO THOSE WHO COME WITHIN THE PROVIS- 
 IONS OF SAID ACT, THE EQUAL PROTEC- 
 TION OF THE LAW, AS CHARGED IN THE 
 SEVENTH SPECIFICATION. 
 
 The fourteenth amendment forbids the States to make 
 or enforce any law which shall, “Abridge the privileges 
 or immunities of citizens of the United States.” But the 
 right to sell intoxicating liquors is not one of the privileges 
 or immunities here contemplated. 
 
 In support of this principle, Chief Justice Fuller, in 
 delivering the opinion of the Supreme Court of the United 
 States in the case of Giozza vs. Tieman, 148 U. S. 1. c. 661, 
 in upholding the validity of the whiskey laws of the State 
 of Texas, said: 
 
 “There is nothing in the Constitution of Texas 
 restricting the power of the Legislature in refer- 
 ence to the sale of liquor, and it is well settled that 
 the Legislature of that State has the power to regu- 
 late the mode and manner and the circumstances 
 under which the liquor traffic may be conducted 
 and to surround the right to pursue it with such 
 conditions, restrictions and limitations as the Leg- 
 islature may deem proper. Ex parte Bell, 24 Tex. 
 App. 428; Bell vs. State, 28 Tex. App. 96. In 
 these cases, and in the case before us the law in 
 question was held to be within the legislative 
 power. And, so far as the State Constitution is 
 concerned, that conclusion is not re-examinable 
 here. But it is contended that the act conflicts 
 with the provisions of the fourteenth amendment , 
 that ‘no state shall make or enforce any law which 
 shall abridge the privileges or immunities of citi- 
 
7a 
 
 zens of the United States; nor shall any State de- 
 prive any person of life, liberty, or property with- 
 out due process of law, nor deny to any person 
 within its jurisdiction the equal protection of the 
 laws.’ 
 
 “The privileges and immunities of citizens of 
 the United States are privileges and immunities 
 arising out of the nature and essential character 
 of the national government, and granted and se- 
 cured by the Constitution of the United States, 
 and the right to sell intoxicating liquors is not one 
 of the rights growing out of such citizenship .” 
 
 If the right to sell intoxicating liquors is not one of the 
 rights growing out of American citizenship , or of the privi- 
 leges or immunities under the fourteenth amendment, then 
 it would be impossible for the act of 1909 to violate that 
 which does not now nor never did exist. The very good 
 reason for the doctrine announced is, as stated in the be- 
 ginning of this brief, that the manufacture and sale of in- 
 toxicating liquors is not a natural or fundamental right, 
 but a privilege permitted under the police power of the 
 State, and therefore does not involve or violate the four- 
 teenth amendment. 
 
 If we were dealing w T ith a law which was a tax upon 
 property instead of a license measure under the police power 
 directed against the liquor traffic, then we might discuss 
 the questions arising under the fourteenth amendment. 
 
 On page 662 of the case of Giozza vs. Tiernan, supra , 
 the court said: 
 
 “The amendment (fourteenth) does not take 
 from the States those powers of police that were 
 reserved at the time the original constitution was 
 adopted. * * * It was not designed to interfere 
 
74 
 
 with the power of the State to protect the lives, 
 liberty and property of its citizens and to promote 
 their health, morals, education and good order.” 
 
 In the case of Barbier vs. Connolly, 113 U. S. 1. c. 30, 
 Justice Field said: 
 
 “But neither the amendment (fourteenth), 
 broad and comprehensive as it is, nor any other 
 amendment was designed to interfere with the 
 powers of the State , sometimes termed its ‘ police 
 power] to prescribe regulations , to promote the 
 health , peace , morals , education and good order of 
 the people , etc.” 
 
 In the case of Powell vs. Pennsylvania, 127 U. S. 1. c. 
 683, in discussing the oleomargarine act of Pennsylvania, 
 Justice Harlan said: 
 
 “It is scarcely necessary to say that if this 
 Statute is a legitimate exercise of the police power 
 of the State for the protection of the health of 
 the people * * * it is not inconsistent with that 
 amendment (fourteenth) ; for it is the settled doc- 
 trine of this court that, as government is organized 
 for the purpose, among others, of preserving the 
 public health and the public morals, it cannot di- 
 vest itself of the power to provide for those objects; 
 and the fourteenth amendment was not designed to 
 interfere with the exercise of that power by the 
 State” 
 
 In the case of Ex parte Kemmler, 136 U. S. 1. c. 448 
 (34 Law Ed. 524), Chief Justice Fuller said: 
 
 “But it (fourteenth amendment) was not de- 
 signed to interfere with the power of the State to 
 
75 
 
 protect the lives, liberty and property of its citi- 
 zens and to promote their health, peace, morals, 
 education and good order.” 
 
 In the case of Mugler vs. Kansas, 123 U. S. 623 (31 
 Law Ed. 1. c. 209) we take the following extract from that 
 opinion : 
 
 “Referring to the contention that the right to 
 sell intoxicating liquors was secured by the four- 
 teenth amendment , the court said (in Bartemeyer 
 vs. Iowa, 18 Wall, 123), that ‘so far as such a right 
 exists it is not one of the rights growing out of the 
 citizenship of the United States.’ In Boston Beer 
 Co. vs. Massachusetts, 97 U. S. 33, it was said that, 
 ‘as a measure of police regulation, looking to the 
 preservation of public morals a State law prohibit- 
 ing the manufacture and sale of intoxicating liquors 
 is not repugnant to any clause of the Constitution 
 of the United States.’ Finally, in Foster vs. Kan- 
 sas, 112 U. S. 206, the court said that the question 
 as to the constitutional power of the State to pro- 
 hibit the manufacture and sale of intoxicating liq- 
 uors was no longer an open one in this court. These 
 cases rest upon the acknowledged right of the 
 States of the Union to control their purely inter- 
 nal affairs, and, in so doing, to protect the health, 
 morals, and safety of their people by regulations 
 that do not interfere with the execution of the 
 powers of the general government or violate rights 
 secured by the Constitution of the United States.” 
 
 Thus it will be seen from the extracts taken from the 
 opinions of the Supreme Court of the United States bear- 
 ing directly upon the subject, that, when a State has en- 
 acted a law under its police power regulating the health, 
 
/ 
 
 76 
 
 morals and good government of its citizens, it cannot violate 
 any right under the fourteenth amendment to the Federal 
 Constitution. Such legislation is the absolute right of the 
 State. 
 
 The defendant continues to labor at the one oar , that 
 the law of 1909 is a tax on property and not a license under 
 the police powers of the State, and thereby is its mistake. 
 
 The defendant, on page 21 of its brief, quotes from the 
 opinion in the case of Giozza vs. Tiernan, 148 U. S. 659. 
 It quotes, however, that part of the opinion which has ref- 
 erence only to the taxation of property and does not quote 
 from that part of the opinion which bore directly upon the 
 question decided upholding the statute of the State of Texas 
 regulating the sale of whiskey under the police power. The 
 quotation used also has inserted the word “but,” which con- 
 veys an entirely different meaning. If the court will turn 
 to and read the opinion, it will find the decision a very 
 strong one in favor of sustaining the act of 1909. I have 
 quoted freely from that opinion in the preceding parts of 
 this brief. Attention is called to the defendant’s quotation 
 from the opinion, because as presented by it, it is mislead- 
 ing. 
 
 It cannot be supposed that the States intended by 
 adopting the fourteenth amendment to impose • restraints 
 upon the exercise of their powers for the protection of the 
 safety, health or morals of a community. No legislature 
 can bargain away the public health or the public morals. 
 The people themselves cannot do it, much less their servant. 
 Government is organized with a view to their preservation, 
 and cannot divest itself of the power to provide for them. 
 
 The above propositions are supported by the following 
 authorities : 
 
 Giozza vs. Tiernan, 148 U. S. 657. 
 
 Barbier vs. Connolly, 113 U. S. 28. 
 
77 
 
 Ex parte Kemmler, 136 U. S. 436. 
 
 Powell vs. Pennsylvania, 127 U. S. 678. 
 
 Mugler vs. Kansas, 123 U. S. 623. 
 
 Pacific Express Co. vs. Seibert, 142 U. S. 339. 
 Crowley vs. Christensen, 137 U. S. 86. 
 
 Clark vs. Titusville, 184 U. S. 329. 
 
 Dent vs. West Virginia, 129 U. S. 124. 
 
 In passing upon the challenge that the Beer Inspection 
 Law affecting the manufacture and sale of beer, violated 
 the fourteenth amendment to the Federal Constitution, 
 Judge Gantt, in the case of State vs. Bixman, 162 Mo. at 
 39, said: 
 
 “As to the charge that this act violates the 
 fourteenth amendment of the Federal Constitution, 
 it need only be said that the fourteenth amend- 
 ment was never designed to prevent a State from 
 adjusting its system of taxation, or to interfere 
 . with the exercise of its exclusive right to make all 
 proper police regulations to promote the health, 
 peace, morals, education or good order of its peo- 
 ple, so long as some particular provisions of the 
 Constitution of the United States is not infringed. 
 (Barbier vs. Connolly, 113 U. S. 27; Bell’s Gap 
 R. Co. vs. Pennsylvania, 134 U. S. 238).” 
 
 Black on Intoxicating Liquors, in Section 36, says: 
 
 “The fourteenth amendment forbids the States 
 to make or enforce any law which shall abridge 
 the privileges or immunities of citizens of the 
 United States. But the right to sell intoxicating 
 liquors is not one of the privileges or immunities 
 here contemplated .” 
 
78 
 
 In Section 37, the same author says: 
 
 “And although it may deprive persons of the 
 right to pursue a business previously lawful, and 
 may have the effect of diminishing the value of 
 property owned by them and especially adapted 
 to the continuance of the business, it does not, for 
 that reason, amount to a deprivation of their prop- 
 erty or liberty without due process of law within 
 the meaning of the Constitution. Neither does it 
 violate the privileges or immunities secured to citi- 
 zens of the United States by the fourteenth amend- 
 ment. Nor, if confined to persons and property 
 fully within the jurisdiction of the State, is it in- 
 valid as a regulation of foreign or interstate com- 
 merce.” 
 
 The same author, in section 48, says: 
 
 “Neither is a restriction of this character re- 
 pugnant to the exclusive power of Congress to regu- 
 late inter-State commerce. If it should have any 
 effect upon such commerce, its relation to it would 
 be only remote and incidental. Nor does it con- 
 travene the provisions of the fourteenth amend- 
 ment 
 
 In section 82, the same author says: 
 
 “The liquor traffic is nowhere in this country 
 recognized as a lawful business, except as permit- 
 ted and regulated by positive law. It is not an 
 avocation which every man has a natural right to 
 pursue. It does not stand on the same level with 
 such occupations as are useful to the community or 
 beneficial to the trade and commerce of the country. 
 On the contrary it is pernicious in its effect, and 
 
79 
 
 is properly subject to regulation under the police 
 power. It is in no sense, therefore, a privilege 
 or immunity such as is secured by the Constitu- 
 tion.” 
 
 (To the same effect is Sec. 83, same author.) 
 
 From these utterances of the Supreme Court of the 
 United States and of the Supreme Court of the State of 
 Missouri, and those of so eminent an authority as Black 
 on Intoxicating Liquors, the conclusion is inevitable that 
 the license law of 1909 does not violate any of the several 
 provisions of the fourteenth amendment to the Constitution 
 of the United States, nor for that matter, as was said by 
 Justice Harlan, in quoting from Boston Beer Co. vs. Mas- 
 sachusetts, 97 U. S. 33, “Is not repugnant to any clause of 
 the Constitution of the United States.” 
 
 These decisions also answer the eighth, ninth and tenth 
 challenges that such laws enacted under the police power 
 of the States are not attempts to regulate commerce between 
 States and do not deny to the citizens of other States the 
 privileges and immunities of the citizens of this State or 
 the equal protection of the laws. In view of the fact, how- 
 ever, that I have presented these matters singly so far I 
 will briefly discuss the three challenges remaining. 
 
 VIII. 
 
 THE ACT DOES NOT VIOLATE SECTION 10, AR- 
 TICLE I OF THE CONSTITUTION OF THE 
 UNITED STATES, AND DOES NOT ATTEMPT 
 TO LEVY AN IMPOST OR IMPORT DUTY OR 
 TAX ON THE PROPERTY OF THE SEVERAL 
 STATES COMING INTO MISSOURI, AS 
 CHARGED IN THE EIGHTH SPECIFICATION. 
 
 This contention of the defendant is settled adversely 
 
80 
 
 to it in the case of State vs. Bixman, 162 Mo. On page 39 
 of that decision in considering this same challenge, Judge 
 Gantt said: 
 
 “As to the charge that it violates section 10 
 of article I of the Constitution of the United 
 States, which declares that ‘No state shall, with- 
 out the consent of Congress, lay any imposts or 
 duties upon imports or exports except what may 
 be absolutely necessary for executing its inspection 
 laws ; and the net produce of all duties and imports 
 laid by any state on imports or exports shall be 
 for the use of the treasury of the United States, 
 and all such laws shall be subject to revision and 
 control of Congress.’ It is the settled judicial con- 
 struction of this section that it refers only to im- 
 ports from foreign countries, and not from one 
 state into another; but, even if our inspection law 
 is held to be excessive as to imports, it is not sub- 
 ject to judicial review, but must stand till Con- 
 gress shall see fit to alter it.” 
 
 That such legislation does not violate this constitu- 
 tional provision is sustained by the following authorities; 
 among many others: 
 
 Black on Intoxicating Liquors, Secs. 70, 82, 83. 
 State vs. Bixman, 162 Mo. 1. c. 39. 
 
 State vs. Bengsch, 170 Mo. 1. c. 116, 117. 
 Slaughter House Cases, 16 Wall. 36. 
 
 Bartemeyer vs. Iowa, 18 Wall. 129. 
 
 Barbier vs. Connolly, 113 U. S. 27. 
 
 Crowley vs. Christensen, 137 U. S. 86. 
 
 Neilson vs. Garza, 2 Woods, 287. 
 
 Guano Co. vs. Board of Agriculture, 171 U. S. 345. 
 
81 
 
 The authorities heretofore cited under the sixth and 
 seventh challenges are also authorities in support of the 
 State’s contention here. It will, therefore, serve no useful 
 purpose to reargue the matter or requote the decisions. It 
 should be and is patent, even upon casual consideration, 
 that the eighth challenge is without merit. 
 
 IX. 
 
 THE ACT DOES NOT VIOLATE THE PROVISIONS 
 OF THE THIRD CLAUSE OF SECTION 8, AR- 
 TICLE I OF THE CONSTITUTION OF THE 
 UNITED STATES, AND IS NOT AN ATTEMPT 
 TO REGULATE COMMERCE BETWEEN THE 
 SEVERAL STATES AND THE STATE OF MIS- 
 SOURI, AS CHARGED IN THE NINTH SPECI- 
 FICATION. 
 
 The act of 1909 is confined to persons and property and 
 the business fully within the jurisdiction of the State of 
 Missouri, consequently, it does not violate this constitu- 
 tional provision, known as the “commerce clause.” 
 
 Even if this were not so, the Wilson Law, approved 
 August 8th, 1890, removes this challenge for good and for 
 all. That act contains the following provision : 
 
 “That all fermented, distilled, or other intoxi- 
 cating liquors or liquids transported into any state 
 or territory or remaining therein for use, consump- 
 tion, sale, or storage therein, shall, upon arrival 
 * in such state or territory be subject to the opera- 
 
 tion and effect of the laws of such state or terri- 
 tory enacted in the exercise of its police powers to 
 the same extent and in the same manner as though 
 such liquids or liquors had been produced in such 
 state or territory, and shall not be exempt there- 
 
 p— 6 
 
82 
 
 from by reason of being introduced therein in origi- 
 nal packages or otherwise.” 
 
 This provision is contained in the Acts of the Fifty- 
 first Congress of the United States, first session C. 728, 
 p. 313. 
 
 The license law of 1909 was enacted under authority 
 of the police power of the State of Missouri, regulating the 
 manufacture and sale of intoxicating liquors, a subject 
 solely and purely under the decisions of the State and Fed- 
 eral Courts within that power , consequently, the Wilson 
 Law applies to this enactment of the Missouri Legislature 
 of 1909. 
 
 The defendant, on page 26 of its brief, takes exception 
 to the holding of the Supreme Court in the case of State vs. 
 Bengsch, 170 Mo. 1. c. 116. It says the court is “inadver- 
 tently led into an anacronism.” That the court held the 
 law of 1901 did not violate section 8 of article I of the Fed- 
 eral Constitution when, the defendant says, ‘the Wilson 
 bill by specific provision was made applicable solely and 
 only to State laws enacted in the exercise of the police 
 power? We say the law of 1909 was enacted solely as a 
 license measure under the exercise of the police power of the 
 State. 
 
 Then if the Supreme Court of this State is correct in 
 its holding in the case of State vs. Bengsch, 170 Mo. 1. c. 
 116, that the law of 1901 did not violate sections 8 and 10 
 of article I of the United States Constitution (which it did 
 not, no matter whether a license law or tax on property), 
 then the license law of 1909 does not. The defendant con- 
 tends that the Wilson Law applies only to laws enacted 
 within the police power of the State. That is true and that 
 is our contention. And the present law being enacted with- 
 in that power is not subject to the challenge under consider- 
 ation. So it is immaterial to the State which view or horn 
 
83 
 
 of the dilemma the defendant may take. If it accepts the 
 utterance of the Supreme Court of this State in the case of 
 State vs. Bengsch, 170 Mo., its challenge must fall. If it 
 accepts the provisions of the Wilson bill, its challenge must 
 fall. Therefore, the defendant stands without the hope of 
 a chance. 
 
 Black on Intoxicating Liquors announces the correct 
 doctrine, which was the law, outside of the Original Pack- 
 age Decision, even before the adoption of the Wilson Law, 
 to wit, that State legislation prohibiting or regulating the 
 manufacture and sale of intoxicating liquors if confined to 
 persons and property within the jurisdiction of the State 
 does not violate the Federal Constitution, and is not a regu- 
 lation of foreign or interstate commerce. 
 
 Black on Intoxicating Liquors, Secs. 37, 70, 76, 29. 
 
 In what is known as the License Cases, to wit, Thur- 
 low vs. Massachusetts, and Fletcher vs. Rhode Island, and 
 Pierce vs. New Hampshire, these question were passed upon 
 and there held that such legislation affecting the liquor 
 traffic did not violate and was not inconsistent with any 
 of the provisions of the Federal Constitution or Acts of 
 Congress. This is true either considered with or without 
 the Wilson Law. This was the law before its enactment, 
 and is therefore more strongly intrenched today by the 
 enactment of that law. 
 
 12 Law Ed. 256 (U. S.). 
 
 Kidd vs. Pearson, 128 U. S. 1, 32 Law Ed. 346. 
 
 In the case of Sherlock vs. Ailing, 93 U. S. 99, 103, 
 104, and in Plumley vs. Massachusetts, 155 U. S. 461, it was 
 stated by the court that in conferring upon Congress the 
 regulation of commerce, it was never intended to cut the 
 State off from legislating on all subjects relating to the 
 
84 
 
 
 health, life and safety of their citizens, though the legisla- 
 tion might indirectly affect the commerce of the country. 
 Legislation in a great variety of ways may affect the com- 
 merce and persons engaged in it without constituting the 
 regulation of it, within the meaning of the Constitution. 
 
 Sherlock vs. Ailing, 93 U. S. 99. 
 
 Plumley vs. Massachusetts, 155 U. S. 461. 
 
 Kailroad vs. Kentucky, 161 U. S. 1. c. 701. 
 
 Gibbons vs. Ogden, 9 Wheat 1. c. 194, 195. 
 
 State ex rel. Standard Oil Co. 218 Mo. 1. c. 376. 
 
 Congress has no power to interfere with police regula- 
 tions relating exclusively to the internal trade of the States. 
 
 United States vs. DeWitt, 9 Wall. 41. 
 
 Patterson vs. Kentucky, 97 U. S. 501. 
 
 No matter what view the court may take, it can reach 
 no conclusion save that the act of 1909 does not violate the 
 commerce clause or clauses of the Federal Constitution. The 
 decisions of the Supreme Court of the United States both 
 before and since the enactment of the Wilson Law, preclude 
 any other conclusion. The Wilson Law, however, settles 
 the matter for the court as to this challenge. The court 
 should also follow the decision of the Supreme Court of 
 this State in the cases of State vs. Bixman, supra , and the 
 holding on this particular point in the case of State vs. 
 Bengsch, supra. 
 
85 
 
 X. 
 
 THE ACT DOES NOT VIOLATE THE PROVISIONS 
 OF SECTION 2, OF ARTICLE IV OF THE CON- 
 STITUTION OF THE UNITED STATES, AND 
 DOES NOT DENY TO THE CITIZENS OF 
 OTHER STATES THE PRIVILEGES AND IM- 
 MUNITIES GRANTED TO THE CITIZENS OF 
 MISSOURI, AS CHARGED IN THE TENTH 
 SPECIFICATION. 
 
 It would be useless for me to review the argument un- 
 der the preceding challenges, because what is said in refer- 
 ence to them applies here. The same authorities in passing 
 upon the other challenges also pass upon this particular 
 challenge, and conclusively dispose of it. For that reason 
 I will not lengthen the brief, and it would be useless to re- 
 peat same. 
 
 Suffice it to say, the manufacture and sale of intoxi- 
 cating liquors is not a natural right to pursue an ordinary 
 calling. To do so without a license in those states which 
 have adopted the license system, is not a right that may be 
 claimed by either citizens or strangers, residents or non- 
 residents. 
 
 Austin vs. State, 10 Mo. 591. 
 
 Black on Intoxicating Liquors, Sec. 48. 
 
 State vs. Bixman, 162 Mo. 1. 
 
 Troll vs. Hudson, 78 Mo. 302. 
 
 Wilson Law, Congressional Act, approved August 
 6th, 1890. 
 
 To the same effect are all those decisions of the Supreme 
 Court of the United States holding that such laws do not 
 violate any provision of the Federal Constitution, and 
 
86 
 
 which hold the right to sell intoxicating liquors is not a 
 right or privilege given to any citizen under or by virtue of 
 the provisions of the Federal Constitution. 
 
 IN CONCLUSION. 
 
 In concluding this argument it is unnecessary to make a 
 resume of what has been said heretofore. The motion has been 
 separately argued in all of its features, to the end that such 
 may not be necessary. It is, therefore, enough to say that 
 from the points and authorities first laid down for the guid- 
 ance of this court, and before making the argument on the 
 single challenges, together with the cases cited and applied 
 in the argument, settle conclusively the fact that the manu- 
 facture and sale of intoxicating liquors in Missouri is not a 
 primary or natural right which can be followed like other 
 pursuits. To engage in such is illegal, without first secur- 
 ing from the State a license or permit so to do. That the 
 license system is adopted in Missouri and held to be proper 
 and constitutional by both this State and by principles in 
 the Supreme Court of the United States. That it is a whole- 
 some exercise of the police power of the State in enacting 
 legislation promoting the health, morals, education and 
 good order of its citizens and in its police regulation in 
 reference to intemperance, pauperism and crime. Pursuits 
 tending to produce any of these results may be prohibited 
 altogether or licensed for a compensation to the public. The 
 State may license them, if it so chooses, and in doing so 
 may prescribe the conditions and name the price. Those 
 accepting the favor cannot challenge the conditions so long 
 as the operation of the law is uniform upon the same class. 
 
 This court must hold the license act of 1909 an exer- 
 cise of the 'police power of the State of Missouri, because the 
 courts of this State and of the United States have held 
 that such laws were and are enacted within the police 
 
87 
 
 power of the states. The defendant has based its sole at- 
 tack and every challenge upon the ground that this law was 
 not an act passed within the police powers of the State regu- 
 lating the manufacture and sale of an illegal business, with- 
 out such license, but that it was solely and purely a revenue 
 measure and a tax levied upon and leveled at property. As 
 this contention of the defendant must be decided against 
 it, it thereby loses the battle. 
 
 The State, confident in the validity and constitution- 
 ality of the present enactment of the Legislature in licens- 
 ing the manufacture and sale of intoxicating liquors, sub- 
 mits the question to this Honorable Court without further 
 discussion. 
 
 Respectfully submitted. 
 
 ELLIOTT W. MAJOR, 
 
 Attorney- General of the State of Missouri. 
 
 V