126 Va. 800 | Va. | 1919
delivered the opinion of the court.
This was a proceeding by warrant issued by a police justice of the city, of Charlottesville against the plaintiff in error to show cause why it should not be fined for conducting intrastate telegraph business therein without having paid the license tax of $100 imposed by city ordinance for that privilege. The punishment prescribed for violation of the ordinance is a fine of not less than $2.50 nor more than $10.00 for each day’s default. From a judgment of the police justice imposing a fine of $200 for continuing delinquencies the company appealed to the corporation court of the city; and neither party requiring a jury the court found the defendant guilty as charged in the warrant and fixed its fine at $190. To that judgment this writ, of error was awarded.
‘"Plaintiff in error assigns two errors:
First: Because the court did not have jurisdiction to proceed by criminal warrant, the remedy being by civil process only; and
Second: Because the ordinance is unconstitutional, imposing a burden on interstate commerce.
It is'true the ordinance prescribing the license tax in the instant case provides that the delinquent may be summoned before the police justice to show cause why it should not be fined for violation of the ordinance, but that procedure is not exclusive; and though in form the process was a criminal warrant, nevertheless, no arrest was made under it, and it was merely treated as a summons to show cause. If objectionable in form, the process could have been corrected under Va. Code, 1904, sec. 4107. Besides, the procedure in this, instance was similar to that employed in Postal Telegraph-Cable Co. v. City of Norfolk, 118 Va. 455, 87 S. E. 555, where a fine was imposed upon the same company for’ violation of a similar ordinance.
To maintain that contention plaintiff in. error introduced its books and two witnesses, the assistant treasurer and district superintendent. The former was not the bookkeeper and did not make the original entries; and the district superintendent admitted that he had no connection with the “financial end of the business.” These witnesses necessarily relied upon information derived from others, and, in the absence of relevant facts within their own knowledge, sought to formulate a theory largely based upon the ratio that expense bears to revenue between the intrastate and interstate telegraphic traffic to show that if the tax be sustained it must trench upon interstate revenue.
The intelligent judge of the corporation court, who tried
The last-named case in essence holds that the superadded circumstances relied on by plaintiff in error to differentiate the instant case from the Norfolk city case are inadequate to establish the contention that the ordinance is a disguised attempt to tax interstate commerce. The identity of the questions presented by the record in this case and in Postal Tel., etc., Co. v. City of Richmond, supra, is vouched for in the following excerpt from the petition for a writ of error (the same counsel representing the telegraph company in both cases) : “There is now pending in the Supreme Court of the United States the case of Postal Tel.-Cable Co. v. City of Richmond, which presents this very question and in which the court has refused the motion of the city to dismiss or affirm. That case is expected to be reached for argument in December.” In point of fact, the unanimous opinion of the court affirming the decree of the District Court of the United States for the Eastern District of Virginia, was handed down by Mr. Justice Clarke on March 17, 1919. There, as here, the effort was made by supplementary evidence to strengthen the weak places pointed out in the opinion of this court in the Norfolk case. The learned justice (249 U. S. at page 257, 39 Sup. Ct. 265, 63 L. Ed. 590) observes: “Except for the contention that this record" shows affirmatively and clearly that the taxes complained' of are necessarily unreasonable and a burden upon inter
The judgment complained of is without error and must be affirmed.
Affirmed.