Whether a statute of a state is or is not a revenue measure and
how rights thereunder are affected by a repealing statute depends
upon the construction of the statutes, and where no federal
question exists, this Court will lean to an agreement with the
state court.
Under the California cases, the county ordinance imposing
licenses involved in this case was a revenue, and not a police,
measure.
While the doctrine that powers derived wholly from a statute are
extinguished by its repeal, and no proceedings can be pursued under
the repealed statute, although begun before the repeal, unless
authorized under a special clause in the repealing act has been
oftenest illustrated in regard to penal statutes, it has been
applied by the California courts to the repeal of the power of
counties to enact revenue ordinances, and will therefore in such a
case be applied by this Court.
The facts are stated in the opinion.
Page 196 U. S. 557
MR. JUSTICE McKENNA delivered the opinion of the Court.
This action was brought by respondent against petitioner in the
Superior Court of the County of Sierra, State of California, and
removed on his motion to the United States circuit court.
The action was brought to recover the amount of license ordained
under an ordinance passed May 31, 1900, by the supervisors of the
respondent county, under what is known as "the county government
act." California Stat. 1897, c. CCLXXVII. The act gave power to the
boards of supervisors of counties as follows:
"To license for regulation and revenue, all and every kind of
business not prohibited by law, and transacted and carried on in
such county, and all shows, exhibitions, and lawful games carried
on therein, to fix the rates of license tax upon the same, and to
provide for the collection of the same, by suit or otherwise."
Sec. 25, subd. 25.
In pursuance of the power conferred, the ordinance in
controversy was enacted, section 1 of which is as follows:
"Each and every person, copartnership, firm, or corporation
engaged in the business of raising, grazing, herding, or pasturing
sheep in the County of Sierra, State of California, must annually
procure a license therefor from the license collector, and must pay
therefor the sum of ten (10) cents for each sheep or lamb owned by,
in the possession of, or under the control of such person,
copartnership, firm, or corporation, and used in such business in
said county. "
Page 196 U. S. 558
Application for a license is required to be made by affidavit,
stating the number of sheep owned by and in possession of the
applicant. "The license tax," it is provided, "shall be deemed a
debt due to the county," which the district attorney of the county
is directed to sue for, and a judgment is authorized. In case of
recovery by the county, $50 damages and costs must be added to the
judgment. All money collected for license, less a fee of ten
percent for collection, "shall be paid over to the county
treasurer, as other moneys are, and be placed to the credit of the
general funds of the county." Years, within the meaning of the
ordinance, shall commence on the first day of January and end on
the thirty-first day of December.
The petitioner, between the first of May and the twenty-fifth of
June, 1900, engaged in the business described in the ordinance, and
had in his possession and under his control 25,000 sheep. He failed
to apply for a license, and became, it is alleged, indebted to the
county for the sum of $2,500, and became further indebted to the
sum of $50 by way of damages for his neglect. Payment of both sums
was demanded.
Petitioner demurred to the complaint, which being overruled and
he having declined to answer, judgment was taken against him. It
was affirmed by the circuit court of appeals. 122 F. 24.
The ordinance was passed on the thirty-first day of May, 1900,
and suit was brought on the twenty-fifth day of June of that year.
On March 23, 1901, by an amendment to the Political Code of the
State of California, section 3366, Stat.Cal. 1900, 1901, p. 635,
the authority of the board of supervisors to license for revenue
was repealed. The repealing provision is as follows:
"Boards of supervisors of the counties of the state, and the
legislative bodies of the incorporated cities and towns therein
shall, in the exercise of their police powers and for the purpose
of regulation, as herein provided and not otherwise, have power to
license all and every kind of business not prohibited by law, and
transacted and carried on within the limits of their
Page 196 U. S. 559
respective jurisdictions, and all shows, exhibitions, and lawful
games carried on therein, to fix the rates of license tax upon the
same, and to provide for the collection of the same by suit of
otherwise."
It is contended that the ordinance imposing the license was a
revenue measure, not a police regulation, and that the law under
which it was enacted having been repealed, the suit abated. And it
is also contended that there was no power to pass the ordinance.
The latter contention is certainly untenable.
Ex Parte
Mirande, 73 Cal. 365. The former requires some discussion.
There are two parts to it -- the character of the ordinance, as
being for revenue or regulation, and the effect of the repeal of
the ordinance. Under the authority of the California cases, it must
be regarded as a revenue measure. 72 Cal. 387; 73 Cal. 365; 119
Cal. 119;
Santa Monica v. Guidinger, 137 Cal. 658;
Sonora v. Curtin, 137 Cal. 583.
In
Merced County v. Helm, 102 Cal. 159, the court said,
distinguishing between the taxing power and the police power, that
the latter "is exercised in the enforcement of a penalty prescribed
for the noncompliance with the law, or for the doing of some
prohibited act." It was provided by the ordinance passed on that
the license should be a "debt," payable in advance, and to be
collected, in case of nonpayment, by suit. The absence of
regulatory provisions has also been held to be an element in
determining the character of an ordinance.
Santa Monica v.
Guidinger, 137 Cal. 658. The ordinance in controversy in the
case at bar was at least assumed by the circuit court of appeals to
be a revenue measure. This being its character, what was the effect
of its repeal? It withdraws the power of collecting the tax,
petitioner contends. The court of appeals did not take this view.
The court regarded the right of the county as vesting at the date
of the imposition of the license, and that the liability of
petitioner was so far contractual as to be unaffected by the repeal
of the statute giving power to the county to enact the
Page 196 U. S. 560
ordinance. We are unable to assent to this view. It is
disputable under the authorities, and it is opposed to the
decisions of the Supreme Court of the State of California.
The general rule is that powers derived wholly from a statute
are extinguished by its repeal. Sutherland on Statutory
Construction, ยง 165. And it follows that no proceedings can be
pursued under the repealed statute, though begun before the repeal,
unless such proceedings be authorized under a special clause in the
repealing act. 9 Bacon's Abridgement 226. This doctrine is oftenest
illustrated in the repeal of penal provisions of statutes. It has,
however, been applied by the Supreme Court of the State of
California to the repeal of the power of counties to enact
ordinances for revenue.
Santa Monica v. Guidinger, 137 Cal. 658, was an action
for the recovery of $50 for license imposed under an ordinance of
the town "for the license of business carried on in the town . . .
for the purpose of regulation and revenue." The defendant was
charged with two license taxes for $25 each for the year following
the date of the ordinance, that being the annual date established
by the ordinance, "for each person acting as agent or solicitor for
any laundry without the corporate limits of the town." It was held
that the license tax was repealed, and the right of action
therefore extinguished, by section 3366 of the Political Code,
added thereto by the Act of March 23, 1901. This is the same
section relied upon in the case at bar. The court said it was clear
that the license tax in question was imposed for the purpose of
raising revenue, and that the case was therefore substantially
similar to that of
Sonora v. Curtin, 137 Cal. 583. The
ordinance involved in the latter case contained penal provisions,
but they manifestly did not determine the decision. The court
observed:
"The right is given by the ordinance to bring a civil suit to
recover the amount so made a license tax. The civil remedy was
created by the ordinance, and the remedy is repealed by the repeal
of the ordinance as to revenue. "
Page 196 U. S. 561
"In speaking of the rule as to enforcements of rights under
repealed statutes, Endlich on the Interpretation of Statutes, sec.
480, says:"
"The same rule applies to rights and remedies founded solely
upon statute, and to suits pending to enforce such remedies. If, at
the time the statute is repealed, the remedy has not been perfected
or the right has not become vested, but still remains executory,
they are gone."
It is clear that the decision was not based alone on the penal
character of the ordinance, but on the broader principle that, the
power to enact it having been taken away, the power to enforce it
was also taken away. The cases cited by the court illustrate this.
Among others,
Napa State Hospital v. Flaherty, 134 Cal.
315, was cited. In that case, the right given by a statute of the
state to maintain an action against the father of an insane adult
son was held to be taken away by the repeal of the statute
conferring the right.
But if the ordinance passed on in
Sonora v. Curtin was
penal, the ordinance involved in the case at bar may be so
characterized within the limits of the principle we are now
discussing, as applied by the Supreme Court of the State of
California. What it might be under broader considerations,
see
Huntington v. Attrill, 146 U. S. 657.
That there is a conflict between the supreme court of the state
and the circuit court of appeals respondent does not deny. Counsel,
however, say the conflict "does not arise out of a construction of
a statute of the state," but (we quote the language of counsel)
"as to the effect of the new statute, construed by each court to
be a repeal of a prior statute, upon the rights of the litigant
granted under the prior statute, the circuit court of appeals first
assuming, but not deciding, that the ordinance may have been a
revenue measure, and the Supreme Court of California deciding that,
in its cases, the ordinance was a revenue measure. This question
did not involve the construction of the statute; it was merely the
determination of a question that depended upon the principle of
general law, and not upon a positive statute of the state."
The counsel further
Page 196 U. S. 562
say: "In such cases, the courts of the United States are not
required to follow the decision of state courts." The distinction
made by counsel we cannot adopt. Whether a statute of a state is or
is not a revenue measure certainly depends upon the construction of
that statute. Besides, if in any case we should lean to an
agreement with the state court, this is such a case. There is no
federal right involved. The question is one strictly of the state
law, and the power of one of the municipalities of the state under
that law. If we should yield to the contention of counsel, we
should give greater power to one of the municipalities of the state
than the law of the state, as construed by the supreme court of the
state, would give it. We should enforce against petitioner a tax
which the supreme court of the state, construing a state law, would
not enforce. The result of the contention indicates its error.
Judgment reversed and cause remanded for further proceedings
in conformity with this opinion.