The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1874-10-08

my btiulCiI buS CDIStliVtiOiiti iHCoiNiNo
prohibits the imposition Of a license tax upon
the merchant is strengthened, firsts by COM
parison OF the present with the former Coll-
stitution. Under the Constitution OF 80 the
Legislature had unquestOned power to lm-
pose a license tax, bit were forbidden to tax
the capital when a license WAS required me
scheme Of the present Constitution is evidently
the avoidance OF specific taxes and the substl-
tuition of the cd calorem system, and i'll order
to accomplish this, while it Restraints the legis-
lative power of license, it commands the Leg
islature:to tax all capital employed in business
as other property, and permits the taxation OF
income as well. So that if the arguments OF
the counsel for the State are correct, the at
| ualorem feature OF the Constitution is done
away with; the Legislature is compelled to
tax the merchants capital, may tax his income,
and has the power as well to impose an I'M
limited tax upon the business in which his cap
ital is employed and from which his income is
derived. | cannot so read the Constitution,
though have faithfully sought to do so in
order to uphold, as was my duty, il [ could.
! this act Of the Legislature.
I'd. Ii we look to the debates of the Couvefl-
zion upon the clause we find that it's advocates
upheld it, in a long struggle, because it would
prevent the Legislature from imposing specf-
c tax l1pon the large and important merchant
class, while its opponents assailed it for that
cause alone. That such debates are not con-
elusive or specially persuasive guides i'll con-
stitutionaf construction is true, but they may
and should be looked to; and no one who ex-
amines them in this case can doubt as to the
meaning Of the Convention when this clause
was adopted.
3d. But if no stress is to be laid upon what
was said in the Convention, we may properly
look to its proceedings, and there we find that
various substitutes for and amendments to this
section were offered; all OF them with the
avowed purpose and express effect, to cover
the case of the general merchant so as give to
the Legislature general power to impose license
taxes, and that all such amendments and sub
stitutes Were rejected, and the existing re-
strietiye clause adopted.
4th. We have the eontemporaneous ex-
position and construction Of this constitutional
provision us shown in the action of the Legis-
ature upon it from its adoption down to the
passage OF the last tax bill, period of four
years. When, upon the adoption Of the
present Constitution. the Legislature came to
make tax bill with the former law before
them, imposing license upon the general mer-
chant, knowing that from this source an I'M
mense revenue had been derived, they kept in
eXistense the ether license taxes which were
allowed under this Constitution and struck out
the merchants license tax, imposing taxes
upon him under the dd palorem system; and
under that system they continued to tax aim
for four years, during all of which time the
! State was deeply indebted, her revenues in
sufficient for her needs, her interest unpaid,
her credit impaired, and every available source
of revenue sought for to remedy these evils.
As was the case with the trainers of the Con-
stitlltOn, the immense revenue to be gathered
from licensing merchants could not have been
overlooked or dsregarled. The only reason
why it was not made available must have been
that the Legislature held that this consti-
at hat
merchant5could be reached by the 0d rdlorens
SYSTEM and it was their duty to tax him by
that system. That they did so tax him the
statutes declare.
But it is said that the ease Of Lewellyn
Sergeant Us. Lockhart 81 Grafton, page.
and Hirsh's case, adem, page, substantially
decided that it is within the legislative dis
erection to say what cases came within that
clause. All other business which cannot be
reached by the a1 razorem SYSTEM and there
fore whenever the Legislature say that a
license tax shall be imposed, the question Of
constitutionalty is decided, and the courts have
no right to interfere.
ON the contrary, in Lewellyn, &C., cs.
Lockridye, a case in which it was alleged that
the Legislature had no constitutional right to
impose 4 license tax upon the business of a
biliiard-sirloon keeper because he had q large
capital invested in his tables and fixtures
which could be taxed al ualorenl, the court
start out With the declaration that the only
question for them to decide is =. whether keep
ing bilart-saloon is q business which can be
reached by the al vazorem systeln." Had they
been of opinion that the. determination OF this
matter was ore. purely within the legislative
discretion they would have simply said so.
Ii they held this view no such question as they
consider or decise could have been the subject
of judicial Inquiry or decision. 1t is true, the
court, in both the named cases, declare that
| the Legislature must, in the nature OF things,
have "a large discretion in determining the
question as to what business can be reached by
the nd ualorem system, and that the court call
| not say that such discretion i'll these eases has
been so exercised as to make the tax law ull-
constitutional. 1t would have been I'M
necessary to say Ill this il the court Rad held
| that the Legislature could exercise unlimited
discretion as to what cases could not.be reached
| by the Gd ratorem system. But even admit
ting i'll full force the doctrine that it is for the
| Legislature to say what cases can be reached
| by the ad ualorens system, in the case at bar
| the Legislature has itself decided the question.
| 1t has decided by its solemn enactments. year
after year, that the general merchants business
| does not come within the category Of a
| business which cannot be reached by the ad
! calorem system,
I 1t llls been declared that his Business can be
so reached, and has taxed it under that system
for four years. For these reasons it ''clearly
appears to my mind--tirst. upon plain read
ing of the 18th section Of article 10 OF the con-
stitution. corresponding with the general in
tent running through the whole instrument :;
second, by comparison of the provisions Of this
with. the provisions OF former constitutions
upon the same subject matter; third, by refer
ence to the avowed object of its trainers fourth
upon the proceedings Of the Convention which
framed it; and fifth, upon its cotemporanaous
construction and exposition by the Legislature
acting under it, that the imposition of Ii
censa-taN upon the general merchant is not
within the power of the Legislature under the
present constitution.
THE CASE TO GO TO THE COURT OF APPEALS.
When the Judge had delivered his opinion,
and given the instruction asked, the Common
wealt's attorney excepted to the ruling of the
court in giving tie instruction and flied his
bill of. exceptions; and the jury having I'M
der the instructions found. u verdict for de-
PENDANTS, the CONFERENCE.-The attorney
moved the court to set aside the verdict, which
motion the court also overruled and ex-
cepton was again taken.
On the motion Of the counsel for the defence
the opinion Of the court was made part of the
record. The case will at once be taken to the
Court Of Appeals for final adjudication, the
case having been prepared with that view.-
At the rate they are going now it won't take
long to make lis discard the idea that such a
man as Shakespeare ever lived. The New