Mayor of Savannah v. Charlton , 36 Ga. 460 ( 1867 )

Walker, J.

1. By the laws of the State, defendant in error was licensed to practice medicine anywhere in the State. The authorities of the city of' Savannah passed an ordinance which, among other things, ordained that every physician in the city shall be compelled to take out license annually, on the first day of January, or within ten days thereafter, for which he shall pay fifty dollars. On failure to take out such license, such person shall be fined, on conviction, one hundred dollars for each day’s default. If no property of the party can be found out of which to raise said fine money, he is liable to be imprisoned. The defendant says the city has no authority to require him to procure a license, the Court below so decided, and the city brings up the case for review.

What is a license ? It is defined to be a right given by some competent authority to do an act which, without such authority, would be illegal. Bouv. L. D. in lorn. The position of the city, then, is that, notwithstanding Dr. Charlton has license from the State to practice -medicine anywhere in the State, yet if he exercises the privilege thereby granted, in the city of Savannah, without a license from the city, it will be illegal. In other words, if he acts under the license from the State, he becomes a criminal. The effect of which is to elevate the ordinance of the city above the laws of the State.

But it is insisted that the city has authority to tax this physician under the law — Code, Sec. 4756 — and that the license-fee is a mere tax, and the paper called a license a receipt for the money, that this really is a contest about words merely, and substantially there is no difference between a license and a tax. We cannot assent to this. A tax is a rate or sum of money assessed on the person, property, etc., of the citizen, while a license confers a privilege,-and makes the doing of something legal, which, if done without it, would be illegal. Under the name of a license, Dr. Charlton cannot be prohibited from availing himself, in the city, of the privilege conferred on him by the State.

2. He is not here contesting the authority of the city to tax him for practicing his profession ; 'what he contends for, is that the city shall not make that illegal which by the law of the State is legal. We see no good reason why the city may not tax the practice of any profession within the corporate limits. We might elaborate, but deem it unnecessary. Judge Fleming decided this case correctly.

Judgment affirmed.