61 W. Va. 34 | W. Va. | 1906
Lead Opinion
A writ of error in this case to a judgment of the circuit ■■court of Kanawha county, rendered on an appeal from a .judgment of the police court of the city of Charleston, pre■sents a single question, namely, whether said city may im■pose a license tax upon the manufacture and sale at wholesale, within its corporate limits, of lager beer, the plant ■of the defendant being situated and operated within said limits, and such sales made by it at the plant to customers en- , gaged in the retail liquor business in the city,
The charter of the city provides, section 26 of chapter 152 of the Acts of 1901, (as does also section 33 of ■chapter 47 of the Code of 1899, Annotated Code, section 1878, in substance,) as follows: “Whenever anything .for which a state license is required is to be done within said
The state law on the subject is found in section 74 of chapter 36 of the Acts of 1905, chapter '32, Annotated Code, section 996, and reads as follows:
“A license for carrying on a distillery shall authorize the holder thereof to sell the product of such distillery at wholesale at the distillery, but shall not authorize such holder to sell such product at retail at any place; and the shipment or delivery of any such product from any place of storage other than the distillery shall be deemed a sale without license at the place of such shipment or delivery, unless a license to sell at wholesale at that place has been obtained under this chapter and shall be in force. But a license to carry on a brewery shall authorize the holder thereof to solicit and receive orders for, sell, offer and expose for sale, the product of such brewery, at wholesale only, in any and all of the counties and cities, towns and villages of this state, except in those counties where the county court or other license tribunal does not grant license to sell intoxicating liquors, as except also in cities, towns and villages where the city council or other license tribunal does not grant license to sell intoxicating liquors.
No city, town or village shall impose on the holder of a state license to carry on a brewery any municipal license tax unless he maintains a'storehouse or place of business therein, and such municipal license tax shall not exceed two and one-' half cents per barrel on the sales made. at such storehouse or place of business; this, notwithstanding the provisions of chapter forty-seven of the Code or of the charter Of any city, town or village.”
Construing this statute as not inhibiting the imposition, by the city, upon the defendant, under the circumstances,' stated, the city council amended section 29 of the city ordinance, relating to' licenses, so that it'now reads' as follows:
• “ On every license to carry on a brewery for the manufacture-of beer, porter or ale,5 2 1-2c per: barrel on all sales made at the brewery, place of business or storehouse within’the 'jurisdiction of the City of Charleston,'the amount of such.sálesr*36 to be reported by such breweries to the Common Council at the time and in the manner reports are required to be made under the State law.”
No denial of its maintenance of a place of business within the city, from which sales are made, as contemplated by the ordinance, is made by the defendant in error. Its sole contention is that its plant, including a cold storage room, is not such a “storehouse or place of business” as it must maintain in order to subject itself to taxation by the municipal corporation. By way of construction, contrary to the letter of the statute, but in conformity with alleged specific legislative intent, said to be deducible from the general spirit of the statutes, relating to the imposition of license taxes on breweries and wholesale dealing in beer, it would qualify the language by the addition, to “place of business,” of the words “other than its brewery.”
The argument to sustain the view, that the legislature intended to discriminate in favor of domestic or home breweries as against foreign breweries, is predicated upon nothing more than separate provisions in the statute for taxing mere wholesale dealing and the business of manufacturing and wholesale dealing, or manufacturing only. A manufacturer’s license, governed by sections 66 to 16, inclusive, of chapter 32 of the Code, authorizes wholesale selling without an additional license. As some persons, firms and corporations, sell at wholesale, without manufacturing, provision was made for them in sections 'T'T to 86 of said chapter. Some provisions of these sections may be general in their application. There .is no intention here to foreclose any question of that kind that’ may arise, but only to indicate that the legislature made provision for two classes. It is easy Vo perceive that either a domestic or forejgn brewery may put itself in either class and this alone excludes the hypothesis upon which the argument for defendant in error is founded.
Our conclusion is that the legislature intended to permit the collection of license taxes from breweries by municipal corporations in which they do business, within the meaning of the terms, as they have been defined by the courts in cases arising under statutes, concerning interstate relations.' Maintaining a store-room at which goods áre kept for sale
G-iving the statute the construction contended for by the attorneys for the defendant in error, the circuit court found for the defendant and adjudged that it go thereof without day. As this construction was wrong and the judgment, therefore, erroneous, we reverse it, find the defendant guilty, impose upon it a fine of twenty dollars, payable to the said city, and render judgment accordingly, with costs in this Court, the circuit court of Kanawha county and the police court of the city of Charleston.
Rehearing
On Petition foe Re-Heaeing.
Want of limitation on the amount of the license tax to the sum of $250.00 is urged as grouud of invalidity in the ordinance. The statute fixes the limit at 2Vi • cents per barrel, Code 1906, chapter 32 section 74, and that is the amount imposed by the ordinance. The $250.00 limitation prescribed by section 18 of said chapter applies to licenses to sell beer, ale or porter at wholesale, not a license to carry on a brewery.
Reversed.
Dissenting Opinion
{dissenting):
The defendant had no storehouse or place of business but its brewery in Charleston. It simply operated a brewery, and the statute prohibits the city from putting a license tax on that.
