The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1874-10-08
Merchants Licence Tax Decided to be I'm
constitutional by Judge Gaigon Of Richmond.

that the tax was unconstitutional it affords MS
pleasure to present the opinion of Judge Gui-
gon, sustaining that view OF it,
1t was expected that the decision OF Judge
Guiyon in the case of Messrs. Moore & Good
sons would have been delivered on Thursday
last, but the matter was postponed until !Satur-
day OWING to the absence of one of the coun-
sci in the case
The counsel for the defence, it will he re-
membered; asked Judge Guigon to instruct the
Jury that if they believed from the evidence
that the defendants were merchants, doing
general merchandise business, buying and sell
ing merchandise for profit, and having def
hate capital employed in their Business (the
amount of which was proved,) they must find
for the defendants. In support of this motion
counsel for the defence argued as follows:
ARGUMENT OF THE DEFENCE.
First, That, but for the Constitution, the
Legislature would have an unrestrained power
of taxation; the Constitution in its very nature
was for the restraint Of Legislative power for
the protection Of citizens, and therefore when
the Constitution is to be construed in reference
to power claimed for the Legislature, its res
trctive power should not be overlooked, and
the leaning of the court where ambiguous IAN
guage appears should be for the citizen, espee-
tally when charge was sought to be fastened
on citizen by the Legislature under the pre-
tenee OF constitutional warrant.
Second That under the Constitution of 1852
and the Alexandria Constitution the Legisla-
trre was expressly restrained from imposing
license tax upon merchants and at the same
time assessing their. capital; that it might re-
sort to either mode but not to both; that the
Convention of 1S67-'6S intended to deprive the
Legislature Of that discretion, to take away the
power OF leyying license taxes upon merchants,
and to require the assessment of their capital
and merchandise in lieu of the license tax. In
support of this view they relied upon the pro
ceedings OF the Convention as well rs upon the
language of the Constitution itself, contending
that section l, article 10, required all taxation
to be equal, uniform, and ad valorem, except
in certain excepted cases, and that the general
merchants business was not embraced in any
Of the exceptions which were expressly made,
and so far from being included, they were eN-
cllded by implication.
TIE COMMONWEALTH CASE.
The counsel for the Commonwealth. how
ever, contend that no matter what was the i'll
tention Of the trainers of the Constitution the
effect Of the constitutional provision is to leave
it i'll the discretion Of the Legislature to impose
upon what business it may please license tax;
that if the intention was, as is contended by
the defence, the Convention failed to express
their intention by apt words in the Constitution;
that the only guide to the Legislature to the
intention of the trainers Of the Constitution is
the language used which permits all business
to be reached by a license tax which cannot be
reached by the 0d UaloTem system, and that the
Legislature is to judge what business cannot be
so reached
When the court met on Saturday the Jury
was sworn, and the defendants again moved
that the Court instruct the jury to bring in a
verdict OF hot guilty.
I. OPINION OF THE CGURT-
Judge Guigon, after hearing the motion,
delivered his opinion as follows:
The instruction prayed for by the defendants
in this case asks, in effect, that the tax bill
passed by the Legislature, 50 far as it imposes
4 license tax upon merchants, shall be declared
unconstitutional. 1T is not disputed that the
power Of the Legislature to impose, taxes is IN
limited except in so far as it is expressly, or by
necessary implication. restrained by the Con-
stitution, and it is equally true that no court
will undertake to declare Il tax law uneonsti-
tutional unless it clearly appears that such law
is made in violation or disregard OF such con-
stitutional restriction. The defendants in this
case rely especially on the 4th section. article
10, OF the Constitution, as the provision which
has been directly violated by the legislation in
question; and generally upon the scheme OF
taxation set forth ia the Constitution show
ing the Intention, except in certain specified
cases and classes, in Which the general mer
chant is not specifically embraced, to contine
taxation to property and in proportion to its
value. The 4th section provides that the Leg
islature may impose tax upon incomes and
upon the following lcenses-yiz: the sale Of
ardent spirits, theatrical and circus companies,
menageries, jugglers and itinerant peddlers
and all other shows and exhibitions for which
an entrance fee is required; commission mer-
chants, persons selling by sample, brokers,
and pawhbrokors; and all other business which
cannot be reached by the al ualorens system,
the capital invested in all business shall be as
sessed and taxed as other property, &c.
There CAN. scarcely be any question, upon
reading this clause, especially if taken in. con-
nection with the general provisions referred to,
that the trainers Of the Constitution Intended
to limit the power Of the Legislature to tax
licenses. 1t is the plain meaning OF the clause
that in certain specified eases and classes they
may impose a license tax; in other cases not
specially named nor embraced in the general
classification they may not impose such tax.
But it is said that while it is true that it appears
on the face of this clause that it is intended to
restrict the legislative power to fax licenses.
the trainers of the Constitution did not suffi-
GENTLY understand their business to do SO
successfully, and that by the addition of the
words $ all other business which cannot be
EodcilcC by Illc otd OutOTeM ~ Slclil ticy lC-
mitted to the Legislature the power to tax all
business through the license Jaw. In other
words, the Constitution unintentionally took
from the Legislature certain powers with one
hand and unintentionally returned them with
the either. | knoY no rule OF constitutional
construction which would Justify me in ar!
irving at such a conclusion. It would be to
violate the canon of construction which de-
clares tllat effect is to be given if possible,
to tile whole instrument, and to every section
and clause. II different points seem to con-
tiict, the courts must harmonise them, it prac-
ticable, and lean in favor of a construction
which will render every word operative, rather
than one which will make some idle and NIL
gatory Cooley on Lap.
Certainly the business of the general mor-
chant is not one of the numerous specified pur-
suits on which the Legislature is authorized to
impose q license tax. They may impose by
express provision, such a tax upon q com
mission merchant, upon a sample merchant,
and upon business of other specified kinds.
Why this omission of the general merchant?
1t could not have been that this, the most i'm
portant source Of revenue, except the land tax,
amounting to over $500, 900 annually under the
former Constitution and laws, was overlooked
or disregarded. Knowing the Importance of
the tax, the magnitude Of the revenue derived
from it. and that the trainers of the Consti-
tuition were considering what business should
be the subject of the license tax, we know that
it's omission from among the specifications
must have been intentional. The reason why,
the excepted pursuits specified in the Consti-
tuition are made subjects of specific tx will.
readily suvyfst themselves Some of them