122 Va. 906 | Va. | 1918
after making the foregoing statement, delivered the following opinion of the court:
The power of the legislature to impose a license tax upon the practice of his profession by a civil engineer— upon his acting as a'civil engineer—in the business of another as well as in his own business, is not drawn in question in the instant case, and, indeed, cannot be doubted. The question before us for determination is merely whether the legislature by the provisions of the statute above quoted has exercised such power. The language of the statute itself must be looked to for the decision of such question.
It will be observed that the language of section 89 imposes a license tax on, “Any person or firm who shall * * engage in the business of civil * * engineering * * ” The language is different from that of the sections of the same statute imposing license taxes upon lawyers, dentists and others. Section 115 of such statute provides that, “* * * no person shall act as attorney at law or practice law in the courts of this Commonwealth without a separate revenue license.” Section 117 provides: “No person shall practice as a dentist * * without a revenue’license * * ”
We are of opinion that section 89 aforesaid does not impose a license tax upon the mere practice of one’s profession as a civil engineer—the mere acting as a civil engineer— when such an one is not engaged in his own business as such engineer. The legislature might have provided that a civil engineer should pay a license tax if he practiced his profession at all, or acted at all as a civil engineer, as it did, in effect, in respect to lawyers and dentists practicing their professions, as aforesaid, but it did not. By section 89 aforesaid, a different provision is made, and one who prac
Now when is a person engaged in his own business?
The lexicographers and courts have found it impossible to define even the word “business” with sufficient accuracy to cover all cases. The same is true of the meaning of the phrase “engage in business.” The learned Attorney-General has cited a number of authorities on the latter subject, namely: Harris v. State, 50 Ala. 127, 130; Weil v. State, 52 Ala. 19; Moore v. State, 16 Ala. 411; Hewin v. Atlanta, 121 Ga. 723, 730, 49 S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296; Easterbrook v. Hebrew Ladies' Orphan Society, 85 Conn. 289, 294-5, 82 Atl. 561, 41 L. R. A. (N. S.) 615; Gobin v. State, 9 Okl. Cr. 201, 131 Pac. 546, 44 L. R. A. (N. S.) 1089; and State v. Paul, 56 Neb. 369, 76 N. W. 861. All of these cases, except the two last named, concern a business .which was the person’s own business who is said to be engaged in it. With the exception mentioned, these cases do not involve or consider the situation of one practicing his profession or doing other work in the business of another. It is true the cases of Gobin v. State and State v. Paul, supra, concern persons employed in the business of another; but the persons so employed were unlicensed physicians. They were employed by licensed physicians and engaged in the business of the latter. The prosecution in these cases, however, was under the Nebraska, statute (Sec. 16, Art. I, Chap. 55, Compiled Statutes). This stat
We are cited to but one authority which involves the last-named question, and that is the case of Watts v. Commonwealth, 106 Va. 851, 56 S. E. 223, Ann. Cas. 1914 B, 738. While not perhaps, precisely in point, that case is very nearly so, and is very illuminating upon and, in principle, is conclusive of the question last above referred to—which indeed is the pivotal question in the instant case.
In the Watts Case, a construction company, duly licensed to conduct its business of general contracting, was engaged in certain construction, work for a railroad company in Pittsylvania county. Watts was a day laborer in the employment of that company. He was sent by the company to Danville to employ laborers for the company. Watts did there employ a number of laborers for the company and was arrested, prosecuted and convicted of an alleged violation of the license statute (section 128, page 2247, Code 1904), which is as follows:
“Any person who hires or contracts with laborers, male or female, to be employed by persons other than himself, shall be deemed to be a labor agent; and no person shall engage in such business without having first obtained a license therefor. Every person who shall without a license conduct business as a labor agent shall pay a fine of not less than one hundred dollars nor more than five hundred •dollars.”
At page 852, of 106 Va., at page 224 of 56 S. E. (Ann. Cas. 1914 B, 738), this court, in its opinion delivered by Judge Whittle, said: “It thus appears that the single question presented by the record for our determination is whether or not plaintiff in error was engaged in the business of a labor agent within the meaning of the foregoing statute, it being admitted that he had no license. We have no difficulty in resolving that question in the negative. Indeed, it would seem clear that nothing more can be predicated of the transaction than that it constituted a hiring of laborers by the construction, company, the principal, through the medium of its own agent, for the lawful prosecution of its business. The case is controlled by the maxim, ‘Qui facit per alium,. faeit per s&,’ (Broom’s Max. 818) ; a failure to observe which, in such case, would impose impossible restrictions upon corporations and natural persons throughout the Commonwealth, whose businesses necessitate the employment of large numbers of laborers. Corporations must of necessity act through agents; and it is wholly impracticable for individuals engaged in large affairs personally to hire laborers to carry on their work. If the
“The differentiating features between the two transactions of hiring laborers by labor agents and by one’s own agent may be illustrated by the instances of a purchase of real estate through a real estate agent, whose business it is to negotiate sales for anyone who may choose to engage his services, with whom and his patron no other contractual relation exists on the one hand, and a purchase by a principal, through his own private agent, on the other. From the former the State exacts a license, but not from the latter. In our opinion the statute in question is plainly not susceptible of the interpretation placed upon it by the trial court; but even if it were of doubtful Import, being a law imposing a license tax, upon familiar principles, it would have to be construed strictly, and most strongly against the State and in favor of the citizen.”
It is true that the mere fact that one is employed by another does not furnish a valid test of whether the former is or is not engaged in his own business. All professional men and those engaged in any kind of work for others, whether skilled or unskilled, are employed by others even
For the foregoing reasons, the order complained of will be reversed and the case dismissed.
Reversed.