J. M. Frame and J. B. Dixon (in pro. per.), for Petitioner.
L. D. Summerfield, District Attorney, for Respondent.
By the Court, Coleman, C. J.:
This is an original proceeding in habeas corpus.
Petitioner was proceeded against before the judge of the municipal court of the city of Reno, charging him with violating the ordinance of that city making it a misdemeanor for attorneys to practice law without paying a license fee. Petitioner having been convicted as charged, it was adjudged that he pay a fine, and in default thereof that he be confined in jail. Failing to pay the fine, petitioner was incarcerated as adjudged. He now seeks to be discharged upon this writ, alleging numerous reasons as grounds therefor.
1. The chief reasons urged upon our consideration are that the ordinance is unconstitutional, in that it is in violation of a vested right, that it is ex post facto, and that it deprives petitioner of his property without due process of law.
Counsel for petitioner cite authorities to the effect that an admission to the bar is a vested property right, and call our attention to what is known as the Lawyers' Tax Cases, 8 Heisk. (Tenn.) 565, as sustaining the contention that a license tax upon an attorney, such as here questioned, is in violation of the constitutional rights of a member of the bar, and is null and void. While counsel for petitioner has filed a very elaborate brief, citing many authorities, and by a process of reasoning satisfactory and convincing to himself of the soundness of his conclusion, the only case cited which sustains the view contended for by him is the Lawyers' Tax Cases, supra. But that case stands alone, and is by a divided court. In a note to Blanchard v. State of Florida, 18 L. R. A. 409, it is said:
In Lawyers' Tax Cases, 8 Heisk. 565, decided by the Supreme Court of Tennessee in 1875, which case was also reported as Cardwell v. State, in 17 S. W. 109, in advance sheets only and left out of the permanent bound volume, a statute making it unlawful to practice law without payment of a license tax was held unconstitutional; two judges holding that the right to practice law could not be taxed, and two others holding that the practice of law by a duly admitted attorney without payment of the tax could not be made unlawful, while two judges held that the statute was constitutional. The serious division of opinion among the judges of the court much impairs the effect of the decision as an authority, and it is at any rate in conflict with all other cases on the subject.
In Stewart v. Potts, 49 Miss. 749, the Supreme Court of Mississippi disposes of the question, without citing an authority, in the following words:
The only question made * * * is as to the constitutionality of the tax. This question is considered too well settled to require discussion. This right has been directly exercised by the federal government, and its equivalent has been practiced by this state ever since its organization. The same may be said of every state in
the Union. If the tax is inexpedient, or excessive, the remedy is at the ballot-box.
In Young v. Thomas, 17 Fla. 169, 35 Am. Rep. 93, the court, passing upon the question, observed:
The plaintiff in this case insists in his bill that the levy of this tax is in derogation of his vested rights as an attorney. In the language of the Court of Appeals of Virginia (Ould & Carrington v. City of Richmond, 23 Grat. [Va.] 469, 470, 14 Am. Rep. 139), a lawyer's license authorizes him to practice law in any court of the commonwealth. It is a vested civil right, yet it is as properly a legitimate subject of taxation as property to which a man has a vested right. I cannot perceive that there would not be as much reason for saying that a man's property was not taxable because he has a vested right to it, as for saying that a lawyer's license is not taxable because he has a vested right to it.' The matter of regulating the admission of persons to practice law is the subject of legislative action and control. At common law the courts had no power to admit attorneys or counselors. State ex rel. Wolfe v. Kirke, 12 Fla. 281, 95 Am. Dec. 314. Their duties are of such character that in order to secure proper qualification for their discharge the legislature imposes the duty of examination and determination upon the courts. The only difference between this pursuit and that of any other for which a license is not required is that a qualification looking to competency is required in one, and the right independent of qualification is in the other. Because the law prescribes certain methods by which the existence of the qualification to follow a pursuit is determined, and after determining their existence a general authority to follow such pursuit is granted, gives no greater right to follow that pursuit than exists in any citizen to follow any other legitimate calling or vocation. There is a general right in every citizen to acquire, possess and protect property, and yet in the absence of such constitutional limitation upon the power of taxation, it extends, as is said by Mr. Justice Cooley, to
every trade or occupation, to every object of industry, use or enjoyment, and to every species of possession.' The power of the legislature to impose a license tax upon lawyers is affirmed in the following cases: State v. King, 21 La. Ann. 201; Simmons v. State, 12 Mo. 268, 49 Am. Dec. 131; Stewart v. Potts, 49 Miss. 749; Ould & Carrington v. City of Richmond, 23 Grat. (Va.) 464, 14 Am. Rep. 139; Jones v. Page & Stallworth, 44 Ala. 658.
In Cousins v. State, 50 Ala. 113, 20 Am. Rep. 290, the Supreme Court of Alabama, in sustaining a license tax on ...