The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-01-08
ICHMoND,. VA, FRIDAY, JANUARY s, 1875

| were other occupations and bushes
not named which could not be reached b,
1.-THE ad pdlren system. What business cal
or cannot be reached by the dd odloren
system is not determined by the Consritu
tion Itself. How Is it to be determined
By legislative authority or judicial au
thority BY that department. which
makes laws or by that department
which expounds themp If the discretion IS
left somewhere, as il undoubtedly is
the Constitution, to determine what bust.
ness can or cannot be reached by the al Ud-
loren system, It is legislative discretion,
or judicial discretion, which must be in.
veked to determine that question. In a
doubtful case, certainly it is matter within
the discretion Of the Legislature, and not a
question of judicial determination. Whether
the business Of q merchant is such business
as cannot be reached by Aatr
THE AID vALoREM SYSTEM
is not SO plain question as to remove it be-
yond legislative discretion. The power TO
provide the manner of assessment and
taxation is peculiarly a legislative power,
and much Is necessarily left to. The discretion
of the Legislature as to the subjects of taxa
tion and the mode Of assessment. Indeed,
as we have seen, the Legislative power over
the whole esubject Of taxation Is supreme eX-
cept where it Is limited by the organic law,
and the judiciary viii only enforce those linn.
tations which the Constitution clearly i'm
poses, and not those which may be srgu-
mentatiyely implied from doubtful
construction of its: provisions. But
this clause of the, Constitution has
already received judicial construction by
this court. In LeWellyn, Sergeant rs. Lock
hart (21 Grattan, 573) the president, speak
ature must in the nature of things have q
very large discretion in determining the
question as to what business can be reached
by the ad Ual0rem system, within the mean.
ing Of the Constitution. The subject is indefi-
mite in its nature, and although the instances
enumerated in the Constitution afford mate
rial aid in ascertaining the meaning of its
trainers in the use of the general words which
follow the enumeration, still, much room is
necessarily left for the exercise Of legislative
discretion in the matter.'-See also Hirsh's
case, 10. 7S9. 4
] am therefore of The opinion that it is for
the Legislature, and not the judiciary, to de-
termine the question whether the business of
the general merchant is such business as
cannot be reached by the ad oalor,ens system.
The Legislature, in its wisdom, has declared
that .ss-....
THE GENERAL MERCHANT
belongs to that class from which a license
may be required. We cannot say that it is
clear that he does not. 1t is the bust
ness of the merchant upon which the
license-tax is imposed. We cannot say
it is clear his business can be reached by the
dd udloren system. A tax upon his capital
NAV not reach the value of his business. He
may do an immense business, with large
profits, on very small capital, or upon no
capital ut all. He may use and disuse his
capital in different amounts aud at different
times during the year. His purchases and
sales may go on tluctuating in price, and
amount during the year, and the capital en-
poyed be skilfully turned over many times
with growing profits. The Legislature might
well determine that a business like this can.
not be reached by the dd Udlorem system.
But it being matter within their discre.
ton (because, to say the least, 1t is doubtful
whether there is any Limitation on this
power, their determination of the question
is final, and the judicial department of the
government cannot interfere.
Reference was made ia the argument to
the debates of the Convention which framed
the present Constitution, and much stress was
laid upon those by two of the able counsel
for the appellees as furnishing important
aid in the construction of the constitutional
provisions we have been considering and as
giving, as they insist, indubitable proofs that
It was the intention of its trainers to pro-
hibit the Legislature from imposing a
licensetax upon merchants.
My great respect for the learned counsel,
and the earnestness with which they pressed
this, view of the subject, has induced me
carefully to read
"THE DEBATES"
referred to. Butafter reading all the speeches
reported on the subject OF the merchants
license-tax / am constrained to say that at
last the judicial construction must he deter
mined by the sections themselves (sections l
and 4, article 10,) as they were adopted and
now appear in the Constitution. It is true
there was much general discussion and vehe-
ment defamation as to whether the cities
and towns or the country should bear the
greater burthens of taxation, and there was
q large party in the Convention in favor of
exempting the general merchant from
license.taX and of prohibiting the Legisla-
ture from imposing tax in that form. But
the pregnant fact sands out commanding ju-
dicial recognition upon question OF con-
struction that no such prohisition was
INCORPORATED IN TIE CONSTITUTIONS;
but, on the contrary, 1t was left to the dis
cretion of the Legislature to impose license.
tax upon certain enumerated classes and
subjects, and on "all other buslnessAWhlch
cannot be reached by the dd ua!orem sys-
tem."
If il had been the purpose of the trainers
of the Constitution to prohibit the -Legisla-
ture from imposing o license.taxson mer-
chants, how easy it would have been so to
declare by express prohibition. It-had been
the policy Of the State for more than half a
century to tax merchants under the. form OF
q license system, and 1t was one OF the
largest and most valuable sources of the pub
lie revenues. II it was the purpose to
change this time-honored legislative policy,
WHY was it not done by express declaration
of the organic law? 49, 49, ii, F.,
.., .....,. A SINGLE LINE . .,..sff
might have declared this restriction on legls-
lotiye power. But that line was never writ
ten. and after ali the discussion on the SUBJ
iect. article 10 was adopted as 1t now appears
in the Constitution. -,
) Much has been said In argument about the
Injustice and inequality Of this tax In impos-
ing unequal burthens upon large and In. /.
auential class of our fellow.citizens. and OF
It's tendency to destroy the commercial pros
perity Of the cities and towns of the state.