86 So. 181 | La. | 1920
Defendants appeal from a judgment condemning them to pay a license tax of $100 a year for the years 1914, 1915, and 1916 for having engaged in the business of retail dealers in pistols during those years.
The suit was brought by the tax collector under authority of Act No. 206 of 1908, p. 310. In answer to the rule to show cause why they should not pay the license tax, defendants denied that they had been engaged as retail dealers in pistols during the years 1914, 1915, and 1916. They averred that their business was that of pawnbrokers, for which they had paid a license tax amounting to at least $375 per annum, that it was their custom, and the custom of the pawnbroker’s business generally, to retain goods pawned for loans until redeemed by the borrowers, and, if not redeemed, to sell the goods in satisfaction of the debts which they had been pledged to secure, and that in every instance in which they had sold a pistol in the years 1914, 1915, and 1916 the pistol had been pledged or pawned by a borrower, had not been redeemed, and had been sold by defendants merely as an incident of their business as pawnbrokers, to satisfy the debt for which the pistol was pledged.
After the case had been tried and submitted- on the issues thus presented, but more than a month before judgment was rendered, the defendants filed an exception of no cause or right of action, averring that, for the rea
The district court rendered judgment overruling the exception of no cause or right of action and condemning defendants to pay the license tax sued for, with interest at 2 per cent, per month on each $100 from March 1, 1914, 1915, and .1916, respectively, and 10 per cent, on the total, for the attorney’s fee. The only reason assigned by the judge for overruling the exception of no cause or right of action was that he considered that the plea of unconstitutionality of the statute was' a matter of defense to be specially pleaded in the answer, and that it came too late after the case had been submitted for decision.,
“A total want of legal right in a suitor, iru relation to the matters in litigation, ought to-be taken into consideration and acted on by-courts of justice, at any stage of a cause.”
Conceding, therefore, as a general rule, that a statute should be deemed valid unless its violation of the Constitution has been specially pleaded, it would be unreasonable to hold that, when such plea is the basis of an exception of no cause or right of action, filed in the district court, it cannot be finally disposed of by an appellate court unless or until its merits have been considered and disposed of by the district judge, although such plea,might be first considered and disposed of by an appellate court if it was filed originally in the appellate court. In this case the district judge did dispose of the plea by overruling it; and we are not confined, in our consideration of the plea, to the question whether the district judge’s reason for overruling it was a good reason. Having concluded that his reason for overruling the plea was not - a good reason, we must determine whether, for any other reason, his decree should be affirmed.
Appellants contend: Eirst, that Act No. 206 of 1908 is discriminating and denies-them the equal protection of the law, in vio
First. Although the statute undertakes to impose the license tax upon all retaE pistol dealers whose gross sales annually are less than $2,500, and upon those whose gross sales annually are more than $2,500, the statute does not impose the tax upon those whose gross sales annually are exactly $2,500.
Second. Although the statute purports to impose the license tax for a sale of only one article, it does not provide for any lower grade of license than is required of a dealer whose gross annual sales are less than $2,500, in consequence whereof the defendants here, who sold less than a dozen pistols a year, and whose gross sales annually were less than $100, are called upon to pay the same license tax that would be demanded of a retail dealer whose gross sales amounted to $2,499 a year.
Third. The second section of the statute is discriminating, in that it expressly exempts from the payment of a license tax dealers in rifles or rifle cartridges of 22 and 25 caliber.
There is a hiatus in the statute, in its failure to declare what the license tax shall be when the gross sales are exactly $2,500. The license tax imposed upon retail dealers in pistols, cartridges, and rifles is graded as follows:
“First class: When the gross sales are five thousand dollars or more, the "license shall be two hundred dollars.
“Second class: When the gross sales are under five thousand dollars and more than two thousand five hundred dollars, the Ecense shall be one hundred and fifty dollars.
“Third class: When the gross sales are less than two thousand five hundred dollars, the license shall be one hundred dollars.”
It is apparent that either the second class should read, “When the gross sales are two thousand five hundred dollars or more, and less than five thousand,” etc., or the third class should read, “When the gross sales are two thousand five hundred dollars or less,” etc.
Appellants’ counsel rely upon the ruling of this court in State v. Southern States Alcohol Mfg. Co., 137 La. 72, 68 South. 217; but we do not consider it applicable to the hiatus in the statute in question. In the case cited the statute purporting to impose a graduated license tax upon all persons, firms, or corporations in a certain business undertook to graduate the business in 20
“The nature of any measure has to be determined from its operation, and not from the name given to it.”
In imposing license taxes upon a business that is a proper subject for police regulation, the state has a broader scope of authority than she would have in the imposition of a license tax for revenue only upon a business
“The rules by which this contention must be tested,- as is shown by repeated decisions of this court, are those: (1) The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in tiic adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. (2) A classification having-some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. (3) When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. (4) One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”
Our conclusion is that the statute in question is not unconstitutional or invalid for any of the reasons urged by appellants.
In Graham v. State the ruling of the Mississippi court was that a licensed pawnbroker who, as a mere incident to his business, in a solitary instance, sold for reimbursement a pistol taken in pledge, was not a dealer in pistols within the meaning of a paragraph of the Code imposing a privilege tax on such dealers. Graham had been convicted of violating a statute denouncing as a crime “dealing in pistols or dirks, or sword canes, or other deadly weapons, shotguns and rifles excepted,” without first paying the privilege tax and procuring the license required by the statute. On appeal the case was submitted on a statement of facts in which it was admitted that appellant had sold only one pistol, which had been pawned for a loan and not redeemed. The doctrine of the decision is in the adage that one swallow does not make a summer. The court cautiously refrained from expressing an opinion as to whether a licensed pawnbroker who habitually and in the course of his business took pistols in pledge and sold unredeemed pistols as he did other unredeemed articles, without having paid the privilege tax and obtained the special license for dealing in pistols, should be deemed guilty of a violation of the statute. Here is the entire opinión, concise and to the point, viz.:
“The remarkably concise and lucid agreed statement of facts in the record before us shows no amenability in the appellant as a violator of article 3399, Code 1892. There is no evidence that he was a dealer in pistols. He was not engaged in buying and selling pistols, so far as the transcript discloses the facts. He was a licensed pawnbroker, and, as an incident, a solitary incident, to that business, he took a pistol in pledge for repayment of a small sum loaned his customer. The loan not having boon repaid at its maturity, he sold the pledge; he resorted to his security for payment of his debt, and in this he committed no offense. May one not sell a pistol which, for any reason, he may wish to dispose of without subjecting himself to the penalty denounced against unlicensed dealers in pistols — persons engaged in the business of buying and selling pistols? May not a man lend his neighbor a dollar, and take a pistol in pledge for repayment of his loan? And may he not lawfully dispose of the pledge in order to repay himself, if necessary? A fortiori may not the licensed pawnbroker, in a solitary instance, and as an incident in the management of his business, do the same thing?
“We express no opinion as to the liability of pawnbrokers where the evidence shows an effort to evade the statute on their part; as, for example, where they habitually acquire and keep pistols, and offer the same for sale, just as other dealers in like goods usually do in their business. It will be soon enough to determine this question when we have a case presented which requires its adjudication. We confine ourselves tO' the case in hand.
“The evidence was insufficient to support the verdict, and the peremptory instruction asked for defendant below should have been given. Reversed and remanded.”
In Shelton v. Silverfield & Feldman the ruling of the Supreme Court of Tennessee, was that the defendants, who were licensed pawnbrokers, did not, by offering for sale at auction, and by bidding in and reselling, secondhand clothing fhat had been pawned for loans and not redeemed, render themselves liable for payment of the privilege tax imposed upon dealers in secondhand clothing. It was not contended, nor thought of, as far as the report of the decision discloses, that the license tax or privilege tax imposed upon those who dealt only in secondhand clothing was a police regulation. The only question presented or decided was whether a licensed pawnbroker might sell at auction, and bid in and resell, the various classes of goods that had been pawned to him for loans, without becoming liable for the special license tax imposed upon the dealers in each separate class of goods so bid in and resold.
“This court is content to say that the authorities charged with the duty of collecting the tax for state and county purposes for the county of Davidson saw proper to accept a merchant tax and privilege from the plaintiff in error, and issued to him a license to carry on his business. Now to impose an additional burden upon him, under the claim of additional or different character of business, would, to say the least, be unjust and oppressive. He has paid his merchant’s privilege tax under the belief that it was a proper payment, and could not now recover the same in an action against the clerk, because it was not paid under the belief that it was a proper payment. Without specially classifying this plaintiff in error, we think the one. tax on his business, under the circumstances named, sufficient, and all that is warranted by the act of the Legislature.
“The judgment of the lower court is reversed. The petition is sustained.”
As the decisions upon which the Supreme Court of Alabama rested its ruling in the Morningstar Case, supra, are plainly distinguishable from the case before us, and are in fact not at all applicable to this case, we take it that the niling in the Morningstar Case, too, is not appropriate to the question before us.
Our conclusion is that the decree of the district court is correct.
The judgment is affirmed.