103 Tenn. 593 | Tenn. | 1899
The plaintiff in error, who is a tobacco merchant doing business in Knoxville, Tenn., . has been indicted and convicted in the Circuit Court of Knox County for selling cigarettes in violation of Chap. 80, Sec. 1, of the Acts of 1897, which is as follows:
“Section 1. Be it enacted' by the General Assembly of the State of Tennessee, That it shall be a misdemeanor for any person, Arm, or corporation to sell, offer ' to sell, or to bring into the State for the purpose of selling, giving away, or otherwise disposing of any cigarettes, cigarette paper, or substitute for ■ the same; and a violation of*595 any of the provisions of this Act shall he a misdemeanor punishable by a fine of not less than $50.”
The record discloses that on the 15th day of June, 1899, the' plaintiff in error applied to the Clerk of the County . Court of Knox County for license to exercise the privilege of a retail dealer in cigarettes under the Revenue Act of 1899, being Sec. 4 of Chap. 432 of said Act. He paid the Clerk the privilege tax imposed upon the business of selling cigarettes by said Act, and the Clerk issued to him a license to exercise the privilege of a retail dealer in cigarettes for three months from the 15th day of June, 1899, and the said Blaufield posted said license in his tobacco store, on Gay street, in the city of Knoxj-ville, On the 20th day of June, 1899, the plaintiff in error sold to one O. H. McGhee a package of cigarettes, -which had been previously sent to the said Blaufield by mail by the American Tobacco Company, from its factory in the State of Hew York, with no -wrappings around it. The revenue stamp upon said package of cigarettes • is used as the seal, and it is necessary to break the stamp to open the package. This' package contains ten cigarettes, and complies in all respects with the internal revenue laws of the United States in regard to the way in which cigarettes shall be packed.
The plaintiff in error insists that he holds the
Sec. 4 of the Revenue Act of 1899, after enumerating the vocations, occupations, and business which may be carried on only after a license has been procured by the payment of a privilege tax, contains the following:
“CIGARETTES.
“(Not sold in violation of criminal law.)
“Wholesale dealers in cigarettes, each, per year, $50.
“Retail dealers in cigarettes, each, per year, $10.”
Sec. 15 of said Act declares the exercising of any of the privileges set out in Sec. 4 of the
The plaintiff in error is mistaken in his assumption that one who pays this privilege tax to' the State thereby becomes a licensee of the State, and necessarily has the right to do and perform all things proper for the enjoyment of his license.
See. 28 of Art. II. of our Constitution provides that the Legislature shall have the power to tax merchants, peddlers, and privileges in such manner as they may from time, to time direct, but this clause of the Constitution does not provide that, upon taxing a vocation or business as a privilege, it shall thereby authorize a party paying this tax to carry on that business in violation of the criminal laws of the State. It is true, as contended by defendant’s counsel, that the word “privilege” has been defined by this Court, in several cases, to be the exercise of an occupation or business which requires a license from some proper authority designated by a general law, and not open to all or any one without such license. The State v. T. M. Schlier, 3 Heis., 283; French v. Baker, 4 Sneed, 193; Robertson v. Henegar, 5 Sneed, 258. But we have no decision that declares, in terms, that a license
An instance of a license in terms which does not carry with it- protection is that of the Pederal tax upon • the occupation of liquor dealing in States or localities where such traffic is illegal. License Tax Cases, 5 Wall., 462. Concerning this class of case's, Mr. Cooley, in' his work on Constitutional Limitations, says: “These burdens are imposed in the form of what are called li
We conclude, therefore, that • one who pays a privilege tax to the State does not thereby become a licensee of the State, in the sense that he has the right to do and perform all things proper for the enjoyment of his license, in utter disregard of the criminal laws of the State.
If the position taken by the plaintiff in error is maintainable, it could- be argued with much more force and plausibility that the liquor dealer’s license authorizes him to sell liquor to minors, or upon Sundays, or within four miles of a schoolhouse, or on election days, for none of the statutes declaring the business of selling liquor to be a privilege, and requiring a license for its exercise, contain any proviso that it shall not be. sold in violation of criminal law, such as is
The contention of the plaintiff in ' error that the Act of 1897 is repealed, by necessary implication, by the Act of 1899, or that the Legislature intended to rfepeal the former Act by the later one, and to place cigarettes upon the list of commodities which might be sold in the State of Tennessee under certain conditions and with certain restrictions, is also unsound.
It is a familiar and universal rule that repeals of statutes by implication are not favored. The repugnancy between the two statutes must be very plain and unavoidable. Both the terms and the. necessary operation of the two • Acts must be incapable of reconciliation before the older Act will be repealed by the later one, for the reason that statutes are only held to be repealed by implication because it cannot be supposed that the lawmaking power intended to enforce laws which are contradictions. Durham v. The State, 5 Pickle,
When these rules are applied to the two Acts in question, it is manifest that the Revenue Act of 3899, making the selling of cigarettes a privilege, when “not sold in violation of criminal, law,” is not so repugnant to the Act of 1897 as to repeal it by implication. The Act of 1897 is a police regulation, passed in the exercise of the State’s power and duty to protect the health of its' .citizens, while the Act of 1899 is purely a revenue statute, passed alone to raise money for the support of the State Government. The two fields of legislation are entirely separate and distinct, and referable to different branches of legislative power. Reelfoot Levee District v. Dawson, 97 Tenn., 152. ISTo Act passed on the one subject ' will in _any manner affect an Act on the other subject, unless obviously so intended. Austin v. State, 101 Tenn., 573, 574. TJnder a proper construction of the Revenue Act, the two Acts are not repugnant at all, for the selling of cigarettes is only declared to be a privilege when not sold in violation of the criminal laws of the ' State.
It is also perfectly manifest that the Legislature did not intend, in this indirect way, and by a statute passed for an entirely different purpose, and in the exercise of a different legislative power, to repeal such a positive and wholesome
The plaintiff in error cannot, therefore, interpose his receipt for this tax, which appears to be in the form of a license, as a defense to the criminal charge made against him in this case.
It is next insisted in behalf of the plaintiff in error that the sale of cigarettes' made in this ease was a sale of an original package brought into the State from another State, and was not, therefore, illegal, as such sales are protected by Sec. 8, clause 3, of the Constitution of the United States. This question was expressly decided in the case of Austin v. The State, 17 Pickle, 566, where this Court held that cigarettes were not
The judgment of the Circuit Court „ will he affirmed with costs.