Year: 1874

i


the specifications must have been inten


tsonal. The reason why the excepted pur.


SUITS specified in the Constitution are made


subjects Of specific tax will readily suggest


themselves. Some Of them cannot, from their


nature, be the subject Of dd uaIorem TAXA.


tlon, and the causes which induced the fram.


ers OF the Constitution to permit unusual


ourthen to be placed upon the others are OBJ
Ylelis. These reasons do not apply, nor do


these causes exist, In the case of the general
merchant.


He must necessarily have capital; he must
have stock of goods; he must have income
which could be reached by the ad yalorem
system, and there was no reason why any
exceptional burthen of taxation should be
imposed upon him. These views lead me


to the conclusion that the general merchant


class was Intentionally excepted from the


license tax. But it is said that license tax.
may be imposed upon the general mer.


chant under the general clause, call other


business which cannot be reached by the


Qd ualoren SYSTEM" 1t would seem that


sufficient answer to this suggestion is


that the Legislature has reached him by


the dd Udlorem system, and has taxed


him under that system from the adoption of


the Constitution down to the passage of the


last tax bill. 1t may be that iti easier to col.


lect q license tax from him than an ad valo-


rem tax. 1t may be that such license tax


would yield larger revenue than the ad
ualore1n, but when the question arises, Can


he be reached by the dd ualorem system, I


have shown not only that he may be, but


that he has been. My opinion that this con-


stitutional interdict prohibits the imposi-


ton Of license tax upon the merchant


is strengthened, first, by comparison


of the present with the former Con-


stitution. Under the Constitution Of


go. the Legislature had unquestioned power


to impose license tax, but were forbidden


to tax the capital when a license was re-


Quired. The scheme of the present Consti-


tuition is evidently the avoidance of specific


taxes and the substitution of the al Ualorem


system, and in order to accomplish this,


while it restraints the legislative power OF


license, it commands the Legislature to tax


all capital employed in business as other


property, and permits the taxation of in


come as we'll So that if the arguments of


the counsel for the State are correct, the dd


Udlorena feature of the Constitution is done


away with; the Legislature is compelled to


tax the merchants capital, may tax his in


come, and has the power as we'll to impose
an unlimited tax upon the business in which


his capital is employed and from which his


income is derived. cannot so read the


Constitution, though hive faithfully sought
to do so in order to uphold, as was my duty,
II could, this act of the Legislature.


3D.. If we look to the debates of the Con-


yention upon this clause we find that its
advocates upheld it, in long struggle, be-
cause it would prevent the Legislature from
inposinga specific tax upon the large and
important merchant class, while its oppo-


nents aSsailed it for that cause alone. That


persuasive guides in constitutional construc-


tion is true, but they may and should be


looked to; and 20 one who examines them in


this case can doubt as to the meaning of the


Convention when this clause was adopted.


Sd. But if no stress is to be laid upon what


was said In 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 with the express
effect, to cover the case of the general mer.
chant so as to give to the Legislature general
power to impose license taxes, and that all
such amendments and substitutes were re-
jected, and the existing restrictive clause
adopted.


4th. We have the contemporaneous ex-
position and construction OF this constitu-
tiora provision rs shown in the action of
the Legislature upon it from its adoption
down to the passage of the last tax bill, 8
period of four years. When, upon the adop-
ton of the present Constitution, the LeSislss'-
ture came to make tax bill with the former
law before them, imposing license tax upon
the general merchant, knowing that from
this source an immense revenue had been
derived, they kept in existence the other
license taxes which were allowed under this
Constitution and struck out the merchants
license tax, imposing taxes upon him under
the dd calorem system and under that
system they continued to tax him for four
years, during all Of which time the State was
deeply indebted, her revenues insufficient
for her needs, her interest unpaid, her credit
impaired, and every available source of
revenue sought for to remedy these evils.
AS vas the case with the trainers of the Con.
stitution, the immense revenue to be gather
ed from licensing merchants could not have
been overlooked or disregarded. The only
reason why it was not made available must
have been that the Legislature held that this
constitutional provision was an interdlct;
that the merchant could be reached by the
ad valoren. 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 case of Lewellyn
Sergeant Us. Lockhart, q Grastan, page,
and Hirsh's case, adem, page =, substan-
tally decided that it is within the legisla-
tive discretion to say what cases came WITHIN
the clause. Gall other business which can:
not be reached by the ad uatorem system"
and therefore whenever the Legislature
say that license tax shall be imposed, the
question of constitutioRality is decided, and
the courts have no right to interfere.


On the contrary, in LeWeliyn, &C., oS:
Lockridge, case in which 1t was alleSed
that the Legislature had no constitutional
right to impose license fax upon the busl-
ness of biiliard-saloon keeper because he
had large capital invested in his tables and
fixtures which could be taxed dd UaloreDa.
the court start out with the declaration that
the only question for them TO decide is
ssHhether keeping q billiard-saloon is bust
ness which can be reached by the dd ualorern
system." Had they been of opinion that
the determination of this matter was one
purely within; the Legislative discre-
fion they would have simply said 30.
If thew held this view no such question as
they consider and decide could have been
the subject of judicial inquiry or decision.
Il is true, the court, in both the named cases,
declare that the Legislature must, in the ma
ture of things, have large dlscretion 10 ue-
termining the question as to what busl-
ness can be reached by the ad odlorem sys-
tenn, and that the court cannot say that suen
discretion in these cases has been SO
exercised as to make the tax laws


1t would have been
80 esa.xr 20 COW oil this ff the court