102 Va. 115 | Va. | 1903
delivered the opinion of the court.
Section 85 of the ordinance of the city of Norfolk imposing license taxes is as follows:
“On every- person, firm or corporation conducting a rolling mill, foundry, furnace, or machine shop, $50.00, in addition to the capital invested.”
A warrant was issued against the Griffith-Powell Company, charging it with a violation of this ordinance, and at the hearing before a justice of the peace it was fined $20.00 and costs. It thereupon appealed to the Circuit Court of the city of Norfolk, and that court, being of opinion that the ordinance was repugnant to the Constitution of the State, reversed the judgment of the justice, and dismissed the warrant.
Erom the agreed statement of facts it appears that the defendant in error is a joint stock company, engaged in the business of operating a machine shop in the city of Norfolk, and that this is a manufacturing business; that th'e defendant in -error has paid the ad valorem tax on its capital, as required by the State laws and city ordinances. The Circuit Court was of opinion that under the Constitution of the State the city of Norfolk has no power to levy a license tax upon the business of the defendant company. To that judgment the city of Norfolk obtained a writ of error.
In Newport News Railroad Company v. Newport News, 100 Va. 157, 40 S. E. 645, this statement of the law is reiterated, and it is also declared that a license tax may be imposed on a street railway company by a municipal corporation through which it runs, either in pursuance of its general power of taxation, or in the exercise of its police power; and that this right is not affected by th'e fact that the property used by the company in the conduct of its business is taxed both by the city and the State upon the ad valorem basis. Judge Harrison, delivering the opinion of the court, uses the following language: “The property of plaintiff in error being assessed upon the ad valorem basis for purposes of State taxation, it is insisted that, under the recent decision of this court, in Thomas v. Snead, 99 Va. 613, the city can exact no license tax of the plaintiff in error, but must be confined to taxing its property upon the ad valorem system. The question involved in that case was the power of the city of Lynchburg to exempt the capital stock of certain manufacturing enterprises in that city from taxation. The capital stock of these joint stock companies was taxed by the State upon the ad valorem basis. The court held that the city had no power to exempt the capital thus invested from taxation; and in pointing out the method by which alone it could
The Legislature has full power of taxation, subject only to the restraints imposed by the Constitution. By section 4 of Article X. of the Constitution (1869), the General Assembly may levy a tax upon the following licenses: “The sale of ardent spirits, theatrical and circus companies, menageries, jugglers, itinerant peddlers, and all other shows and exhibitions for which an entrance fee is required; commission merchants, persons selling by sample, brokers and pawn-brokers, and all other business which cannot be reached by the ad valorem system. The capital invested in all business operations shall be assessed and taxed as other property.”
' An effort was made in this case to show that the act imposing taxes passed at the session of 1889-90, (Acts 1889-90, pp. 197, 201) did restrict the city of Norfolk in its power of taxation, and that by force of that act the charter of the city had been so far affected that it could no longer lawfully levy a tax upon licenses. We have examined that act with much care, and we are unable to assent to the position contended for by the defendant in error; nor do we think that the case of Thomas v. Snead is authority in support of the judgment in this case. The question there adjudicated is pointed out by Judge Harrison in the case of Newport News R. Co. v. Newport News, supra.
The opinion in Thomas v. Snead does state that “the General Assembly for State purposes does not impose a license tax upon the business of manufacturers, but imposes a property tax upon the capital stock of joint stock companies and the capital of individuals engaged in such business. As long as the General Assembly continues that method of taxation for State purposes it is a conclusive determination! '.that such business ‘can be reached by the ad valorem system, and if it can be and is so reached by that system for State purposes, it must be so reached when taxed by municipal corporations, for the Legislature has no power under, the Constitution to impose a license tax, or to
It cannot be denied that in the imposition of taxes the State is influenced by considerations of expediency as well as of power, and as questions of policy fluctuate with changing conditions, it should not be inferred from the failure to tax a particular subject, or to tax it in a particular way, that the power to tax does not exist. There is no necessary connection between the power and its exercise, because uncertain and varying factors do or may enter into all schemes -of taxation. The needs of the community are greater at some times than at others, and nothing is more unstable than opinions as to the manner in which the burdens of taxation may be laid so as to operate least injuriously upon the citizens, and most beneficially to the treasury. The policy, therefore, of the taxing authority may change from time to time, and modes of taxation will shift with it, but when the question comes before the court it is no longer a question of policy, but of power. What the Legislature may lawfully do, it may do as to it seems best, and when it seems best. Its policy then is an uncertain, its power a certain, quantity; and so with its delegated authority. If it confers the power of taxation upon a municipal corporation, the power so delegated continues until it is recalled, and the mere failure of the Legislature to exercise a part of its power cannot be construed as an impairment or diminution of that which it had lawfully dele
We think it follows from what has been said, that an ordinance wbicb imposes a tax in a city clothed with full power ■of taxation stands on tbe same footing with an act of tbe Legislature, and the courts, looking alone at tbe power to tax, will consider tbe ordinance without reference to tbe tax imposed by tbe Legislature. If tbe Legislature could have imposed tbe tax, but for reasons satisfactory to itself refrained from doing so, that will not invalidate tbe ordinance in tbe absence of tbe -expressed or necessarily implied intention to withdraw tbe subject from taxation, or to require that it shall be taxed only in a particular mode.
In Supervisors of Montgomery County v. Tallant, 96 Va. 723, 32 S. E. 479, it was said that for county purposes tbe supervisors can only levy taxes upon such property as is assessed with State taxes within tbe county, and that they cannot look beyond tbe subjects of taxation provided by tbe Legislature. This statement of tbe law is indisputable with respect to counties. Now, if it be true that tbe abstention upon tbe part of tbe Legislature from tbe exercise of its power to.levy a tax upon licenses upon a business, and tbe imposition by it of an ad valorem tax upon tbe capital employed in tbe business are equivalent to a legislative declaration that such subjects can be reached by an •ad valorem tax, and operates as a limitation upon tbe otherwise full power to tax wbicb it bad delegated to tbe city of Norfolk, then tbe taxing power of tbe city is reduced in practice to that of tbe counties, a conclusion at variance with many decisions of this court. Morgan’s case, supra.
We feel constrained, in order to bring tbe case of Thomas v. Snead, supra, into harmony with tbe preceding and subsequent judgments of this court, to limit tbe effect of tbe language
Por these reasons we are of opinion that the judgment of the Circuit Court should he reversed.
Reversed.