Carpel v. City of Richmond

• Decision Date: 14 June 1934
• Citation: 162 Va. 833
• Court: Virginia Supreme Court
• Parties: H. L. CARPEL OF RICHMOND, INC. v. THE CITY OF RICHMOND.

Page 833

162 Va. 833

H. L. CARPEL OF RICHMOND, INC. v. THE CITY OF RICHMOND.

Supreme Court of Virginia, Wytheville.

June 14, 1934.

Present, All the Justices.

1. LICENSES — Hawkers and Peddlers — Exemptions — Constitutionality of Municipal License — Case at Bar. — In the instant case defendant, a merchant, was fined for failing to obtain a municipal license. Defendant contended that an ordinance of the city of Richmond under which the fine was imposed was unconstitutional and void as being in conflict with section 1 of articie XIV of the amendments to the Federal Constitution and sections 1, 63 and 64 of the Constitution of 1902. The ordinance imposed a fine upon peddlers selling or offering to sell to licensed dealers or retailers. Defendant was a wholesale merchant. All the articles sold by it consisted of foodstuffs of a perishable nature. Defendant made deliveries of goods to retail merchants from motor vehicles operated by it, the deliveries being made at the same time that the order was received; that is, it had sold and delivered at the same time in the city of Richmond at the place of business of licensed retail merchants its goods to such merchants. The ordinance assailed was authorized by section 192a of the Tax Code. The ordinance exempted from the license tax distributors of motor vehicle fuels and petroleum products, farmers, dealers in forest products, and products of manufacturers.

Held: That the ordinance was not unconstitutional by reason of these exemptions.

2. HAWKERS AND PEDDLERS — Licenses — Right to Assess License Tax. — The right to assess peddlers with a license tax, so long as it is done in good faith, is perfectly plain. It rests both in the power to tax and in the police power.

3. HAWKERS AND PEDDLERS — Definition of Peddler. — Any person who shall carry from place to place, any goods, wares or merchandise, and offer to sell or barter the same, or actually sell or barter the same, shall be deemed to be a peddler. Tax Code, section 192. Myer's Case, 92 Va. 809, 23 S.E. 915, 31 L.R.A. 379.

4. STATUTES — Taxation — Licenses — Exemptions. — The right to classify and to exempt is widely recognized both in this country and in England. In many if not in most of the American States, immunity is granted to mechanics and farmers selling their own products. This power has been exercised by the Virginia legislature certainly for more than a century.

5. LICENSES — Hawkers and Peddlers. — A license has never been required for the sale of every conceivable article.

6. STATUTES — Taxation — Licenses — Classification. — Classification, unless essentially arbitrary, rests in the judgment of the legislature.

7. STATUTES — Taxation — Licenses — Classification — Rule of Equal Taxation — Variety in Taxation. — The power of taxation is fundamental to the very existence of the government of the States. The restriction that it shall not be so exercised as to deny to any the equal protection of the laws does not compel the adoption of an iron rule of equal taxation, nor prevent variety or differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, trades, callings, or occupations.

8. TAXATION — Classification — Reasonableness — Burden of Proof. — One who assails the classification of a tax law must carry the burden of showing that it does not rest upon any reasonable basis, but it is essentially arbitrary.

9. STATUTES — Constitutionality — Statute Susceptible of More Than One Interpretation. — Where a statute is susceptible of more than one interpretation, that which sustains its constitutionality should be adopted. This principle is recognized in express terms in section 2 of the Tax Code.

10. STATUTES — Constitutionality — Conflict with the Constitution to Be Avoided. — The provisions of the Tax Code of Virginia and of all tax and revenue statutes shall always be so construed and so restricted in their application as not to conflict with any of the provisions of the Constitution of the United States or of the Commonwealth of Virginia, and as if the necessary limitations upon their interpretation had been expressed in each case.

11. STATUTES — Constitutionality — Constitutionality Sustained Where Possible. — Courts sustain the constitutionality of statutes when it is possible to do so.

12. LICENSES — Peddlers — Exemptions Held Not to Be Arbitrary. — Exemptions in a municipal ordinance imposing license taxes on peddlers or vendors or distributors of motor vehicle fuels, farmers, dealers in forest products, and products of manufacturers, do not render the ordinance void as being arbitrary.

13. TAXATION — Classification — Difference in Method and Character of Business. — The legislature may make the difference in method and character of the business the basis of classification for taxation.

14. TAXATION — Constitutionality — Who May Attack Constitutionality. — Before one can ask that a statute be declared unconstitutional, he must show that he has been injured. Until that has been done, it is, so far as he is concerned, but a moot question.

15. TAXATION — Classification — Farmers. — In unnumbered instances the courts have held that farmers constitute a class and may be the beneficiaries of special legislation.

16. TAXATION — Classification — Dealer in Forest Products. — A dealer in forest products is exempt. This exemption also must be construed in the light of common sense. Plainly one could not peddle filing cabinets because they chanced to be made of wood. But he may sell cord wood, kindling, charcoal, etc., and rustic furniture which he himself has made.

17. STATUTES — Constitutionality — As Applied to One State of Facts. — A statute may be invalid as applied to one state of facts and yet valid as applied to another.

Error to a judgment of the Hustings Court of the city of Richmond.

The opinion states the case.

Leon M. Bazile and Alfred J. Kirsh, for the plaintiff in error.

James E. Cannon, W. W. Martin and Henry R. Miller, Jr., for the defendant in error.

HOLT, J., delivered the opinion of the court.

This summons was executed on August 10, 1932:

"Summon H. L. Carpel, 1704 Altamont avenue, to appear before me or some other justice of the peace of said city, at the police justice's court in the city hall, on the 10th day of August, 1932, at the hour 9:30 o'clock A.M., to show cause if any can why a fine of dollars should not be imposed on for violation of ordinance of said city, section 124 1/2, chapter 10, Richmond City Code, peddling on the streets of the city of Richmond without the proper license.

"And be you then there to certify what you have done in the execution thereof.

"Given under my hand and seal in said city this 1st day of August, 1932.

"T. GRAY HADDON,

"Police Justice. (Seal)."

In due course it came on to be heard and on August 24, 1932, the defendant (plaintiff in error) was found guilty and there was imposed upon him a fine of $5, costs $1. He appealed to the Hustings Court of the city of Richmond, which on the 28th of November, 1932, affirmed the judgment of the police justice, and that judgment is now before us on a writ of error.

The defendant contends that the ordinance under which this fine is imposed is unconstitutional and void as being in conflict with section 1 of article XIV of the amendments to the Federal Constitution and sections 1 and 63 and 64 of the Constitution of Virginia.

This is the ordinance under which the city claims:

"124 1/2. Peddlers selling or offering to sell to licensed dealers or retailers. — (a) Every person, firm or corporation, other than a distributor or vendor of motor vehicle fuels and petroleum products, a farmer, a dealer in forest products, a producer or manufacturer, who or which shall sell and deliver at the same time, or offer to sell, in the city of Richmond, other than at a definite place of business, goods, wares, manufactured products or merchandise to licensed dealers or retailers, shall pay a license tax of $200 for each vehicle so used in the conduct of said business, the whole of which license tax shall be paid in one sum at the time the license is issued and shall not be prorated or transferred.

"(b) Every vehicle used in the business licensed by this section shall have conspicuously displayed thereon the name of the person, firm or corporation using the same, together with his or its postoffice address and the license provided for in this section shall at all times be conspicuously displayed in each such vehicle."

Pertinent facts are set forth in an agreement which reads:

"Agreed Statement of Facts.

"On behalf of the city of Richmond, acting through its city attorney, and on behalf of H. L. Carpel, of Richmond, Incorporated, acting through Kirsh and Bazile, its attorneys, it is agreed that this case shall be submitted to the court on the following agreed statement of facts:

"H. L. Carpel of Richmond, Incorporated, is a Virginia corporation. The corporation is licensed by the State and by the city as a merchant with its place of business at No. 1704 Altamont avenue, Richmond, Virginia. It pays to the city of Richmond a merchant's license tax of three hundred and fifty-seven ($357) dollars per year. It pays a State merchant's tax of three hundred seven dollars and fourteen cents (307.14) per year. It pays automobile license taxes to the Commonwealth of Virginia and to the city of Richmond in the amount of three hundred fifty-one dollars and thirty cents ($351.30) and it pays real estate taxes to the city of Richmond to the amount of seven hundred twenty-seven dollars and fifty-two cents ($727.52) per year.

"H. L. Carpel of Richmond, Incorporated, is a wholesale of selling to retail merchants. All of the articles sold by it consist of food stuffs of a perishable nature, principally cheese, biscuits and crackers, cakes, potato chips, mayonnaise and other dressings, spaghetti and macaroni products, etc.

"In the city of Richmond...