Strater Bros. Tobacco Co. v. Commonwealth

117 Ky. 604 | Ky. Ct. App. | 1904

Opinion or -the cohbt by

JUDGE PAYNTER

Affirming.

'This action arises from an effort to enforce section 32, subdivision 3, article 10, c. 128, p. 355, Acts 1902, which reads as follows “That all corporations, associations, co-partnerships or other persons, owning or operating a tobacco factory in this State, whereby the natural leaf is converted by process of manufacture into manufactured product, including cigars and cigarettes, shall pay a license tax therefor. On the manufactured product (except cigarettes) for each factory, one dollar on the marketable value’ of each one thousand dollars of such product, up to- one hundred thousand dollars' of such product; and fifty cents on each one thousand dollars of the marketable Value on all in excess of the first one hundred thousand dollars.”

The appellant owns and operates a tobacco factory wherein the natural leaf is converted, by process of manufacture into a manufactured product. For the appellant it is insisted (1) that it is a tax upon t¿e, manufactured product of the tobacco factory, not on the manufacturer’s right or privilege to conduct a tobacco manufacturing business; (2) that it is .a tax imposed under section 171 of the Constitution, and is in violation thereof, because it is not uniform.

For the commonwealth it is insisted that it is a license or occupation tax, and is not a tax upon the product of the tobacco manufacturer. .Section 171 of the Constitution provides that taxes shall be levied and collected for public purposes only, and that they shall be. uniform upon all prop'erty subject to taxation within the territorial limits of the authority levying the tax. Section 174 provides that all property shall be taxed in proportion to its value, unless exempted by the Constitution, and it contains the further provision which reads as follows: . . Nothing in this Constitution shall be construed to prevent the General Assembly from providing for taxation based on income, license or franchises.”

The taxes provided for' by sections of the Constitution to which we have referred are ad valorem taxes. Section 181 of the Constitution reads as follows The General Assembly may, by general law only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations, and professions, or a special or excise tax. . . . The tax imposed is not levied upon property. It is simply a license tax as declared by the General Assembly in the act. The Constitution not only does not prohibit the imposition of such a tax, but it expressly recognizes the right of the Legislature to impose it. It not only does so, but authorizes it to be done in addition to an ad valorem tax. If the Constitution had been silent upon the question, it would have been competent for the Legislature to have enacted the law.

It is said in Cooley on Taxation (2d Ed.) p. 570: “It has been seen that the sovereignty may, in the discretion of its Legislature, levy a tax upon every species of property within its jurisdiction, or, on the other band, that it may select any particular species of property, and tax that only, if in the opinion of the Legislature that course will be wiser. And what is true of property is true of privileges and occupations also; the State may tax all, or it may select for taxation certain classes and leave the others untaxed. Considerations of general' policy determine what the selection shall be in such cases, and there is no restriction on the power of choice unless one is imposed by the Constitution. . . . Constitutional provisions requiring the taxation of property by value have no application to the taxation of other subjects, and do not, therefore, by implication, forbid the taxation now under consideration.” Again it is said by the same author (page 580) : “This is á class of dealers ■commonly selected for exceptional taxation. Their occupation is sometimes taxed for federal, State, and municipal purposes, though their stocks are taxed as property, and whatever has been imported has paid a heavy duty. The right to levy these several taxes has almost ceased to be contested.”

We do not think the, tax is lacking in the quality of uniformity. It is the same on each person or corporation which manufactures the samel quantity of tobacco. The Legislature had the right to impose a graduated license tax. The larger manufacturer is required to pay more than the smaller one, based upon the value of the product manufactured. If all manufacturers of tobacco, regardless of the manufactured product produced by each, had been made to pay the same license tax, then a more potential argument could be made against the .validity of the law for lack of uniformity and inequality of burden than has! been made against the law here sought- to be enforced. While this is true, we would not hold it sound. If we did, then it would logically follow that a license tax on retail liquor dealers-would be invalid, because the one who sold a small quantity of liquor paid the same as the one who sold many times as much. This court has upheld ordinances imposing a license or occupation tax on liverymen based upon the number of vehicles employed in their business. Such taxes are not based upon the value of the vehicles or the profit derived from their use, but upon the number employed.

The judgment is affirmed.