City of Lynchburg v. Norfolk & W. R. R. Co.

• Decision Date: 19 February 1885
• Citation: 80 Va. 237
• Court: Virginia Supreme Court
• Parties: CITY OF LYNCHBURG v. N. & W. R. R. CO.

80 Va. 237

CITY OF LYNCHBURG v. N. & W. R. R. CO.

Supreme Court of Appeals of Virginia.

February 19, 1885

Error to judgment of corporation court of city of Lynchburg rendered September 8, 1884, in an action of assumpsit wherein the Norfolk & Western Railroad Company was plaintiff, and said city was defendant.

The city, under section 5 of its charter (Acts 1879-80, pages 109-10), imposed a specific license tax of $1,000 on the said company. The latter brought this action to recover the amount which had been paid under protest. The corporation court gave judgment in favor of the plaintiff, and the defendant was allowed a writ of error and supersedeas by one of the judges of this court.

Kean & Kean, for the plaintiff in error.

By reference to the existing charter of the said city (Acts 1879-80, pages 98 to 113), under which the proceedings complained of were had, it will be seen that by chapter 8 sections 3, 4 and 5 of said chapter (pages 109-10), the council of the said city is clothed with very large and comprehensive powers of taxation, " for the execution of its powers and duties under this charter."

By section 3, power is given to tax every imaginable species of property, real and personal, including choses in action capital employed in business, stocks in incorporated companies, incomes, interest on money, and dividends.

By section 4, power is given to lay a poll-tax of fifty cents per head on male residents of the city over twenty-one years of age.

By section 5, power is given to impose a tax " on merchants, commission merchants, auctioneers, manufacturers traders, professional men, as lawyers, physicians, dentists, on brokers, keepers of ordinaries, hotel keepers, boarding-house keepers, keepers of drinking or eating houses, keepers of livery stables, daguerrean artists of all kinds, agents of all kinds (including the agents of foreign insurance companies whose principal office is not in the city), sellers of wine and other liquors, venders of quack medicines, public theatrical or other performances or shows, keepers of billiard tables, ten-pin alleys, pistol galleries, hawkers, pedlars, sample merchants, and upon any other person or employment which it (the council) may deem proper, whether such person or employment be herein specially enumerated or not, and whether any tax be imposed thereon by the State or not. As to all such persons or employments, the council may lay a direct tax, or may require a license therefor under such regulations as it may prescribe, and levy a tax thereon."

When, after the enumeration of the various subjects which might be reached by direct or license taxes, the general assembly added the comprehensive words: " and upon any other person or employment which it may deem proper," & c., the added phrase, " which it may deem proper," & c., shows that the legislative purpose was to enlarge the grant by making the judgment and discretion of the council a legislative body of large and varied powers,--the only limitation, except those expressly stated.

The decision of the judge of the corporation court went wholly upon the ground that, where a particular class of things is spoken of in the statute, and afterwards general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class; citing Broom's Maxims (651); Porter's Dwarris, 236; 2 B. & Adol. (22 E. C. L.), 592 (249); 14 E. C. L. 52; 49 Mo. 559.

That railroads are not mentioned at all; that they would have constituted, or might have constituted, a much more important subject of taxation than hawkers, pedlars, or shows, venders of patent medicines, or ten-pin alleys, and therefore it is not to be presumed or considered that the legislature intended that the general and comprehensive words were intended to embrace them, or any subject not of the same nature, with some one or more of the enumerated classes.

This reasoning and the conclusion based upon it are unsound. Nobody questions the general truth of the rule relied on, when it is justly applicable, as in cases where the enumerated subjects themselves are of an analogous nature. These rules of interpretation have been established as means to aid in ascertaining the intention. They do not control the intention. The practical difficulty is in correctly applying them.

If the legislature had contented itself with the enumeration in section 5, followed by words and " any other person or employment," there might have been some show of force in the application of the rule of construction which was applied by the court below. Even this may well be doubted in its application to city charters, where the powers are exercised by councils. In a charter, which after an enumeration, had the words " all other persons exercising within the city any profession, trade or calling, or business of any nature whatsoever," a city may tax chartered banks. Macon v. Macon Savings Bank, 60 Ga. 133.

And a city having authority to license, tax and regulate " merchants, & c.," may impose an ad valorem tax on the gross receipts of an insurance company. Am. U. Ex. Co. v. St. Joseph, 66 Mo. 675.

But the legislature did not stop with those words, and as if sensible that to do so might give occasion for an unreasonable, and not intended restriction on the taxing power of the city, the charter goes on to qualify them by terms which enlarge them still further, by showing that a legislative discretion was intended to be vested in the council by the words, " which it (the council) may deem proper. " Not content with this phrase, which, standing alone, might possibly be construed as importing only a discretion to tax such subjects analogous to those enumerated, as the council might see fit to select, the law proceeds with words unmistakably enlarging their effect and meaning, and which could have been used for no other purpose, " whether such person or employment be herein specially enumerated or not." And not content even with this, but apparently to take away any doubt which might possibly be raised, on any ground whatever, and to make the taxing power co-extensive with that of the State herself, as to that general class of subjects which cannot be reached by the ad valorem system, it adds the further enlarging words, " whether any tax be imposed thereon by the State or not."

Thus by carefully selected language, the rule of ejusdem gen eris is excluded, and the intention of the legislature (which is the real thing to be ascertained) is manifested. The power to tax by way of license or direct tax, all and every person or employment, in said city, is given in the amplest manner.

(1.) A moderate and reasonable tax on the business done by the railroad company at Lynchburg is reasonable and just.

The company has large and valuable properties there, and as a great carrier of merchandise has vast values, for which it is responsible, constantly under the protection of the city police and the fire department. These considerations of natural justice were strongly dwelt on by this court in Humphries v. The City of Norfolk, 25 Gratt. 102-3. In that case the foreign insurance companies were resisting municipal taxation on grounds in some respects analogous to those urged here; such as want of power under the charter of the city; implied exemption from the manner of taxation by the State, & c. (see pages 100-101); all of which were overruled by the court. At the place first above cited, this court said:

" They" (the insurance companies) " derive their chief revenue from the towns; within whose limits the principal offices and agencies are located; the lives and buildings they insure are under the protection of the municipal authorities; the fire departments which secure dwellings from conflagration ; the police which guard the life of the citizens against violence, and all the varied and expensive sanitary regulations which promote health, * * operate undoubtedly to the advantage of the insurance companies. Are they to enjoy the benefits of good government without contributing in any degree to its expense? Are they alone to be exempt from those common burdens which devolve upon all the inhabitants of towns and cities?"

This court unanimously held the license-tax imposed by Norfolk on the foreign insurance companies having agencies in that city, valid and just.

(2.) It is urged in argument, and to some extent relied on by the court, that " the power to tax is the power to destroy; " that the power to tax to destroy the railroad property is the power to destroy the commerce of the State. The answer to this is manifold.

( a. ) The interest of the railroad companies and of the cities to or through which their roads pass are largely identical. Prosperity, growth, and the development of trade and wealth in the cities means increased traffic to the roads, and reciprocally the larger the volume of traffic conducted or induced by the railroads at a city the greater the benefit to the city.

( b. ) If the power should be abused by oppressive taxation the evil could and would be corrected by the voters, who would choose a council of more enlightened and just opinions.

( c. ) All municipal powers are under the direct and constant control of the legislature. A power which, should it be abused, would be promptly limited or taken away.

( d. ) This court has furnished a direct answer to this point in City of Richmond v. Danville R. R Co., 21 Gratt. 615-16. After quoting Ch. J. Marshall (4 Pet. 514) to the effect that no argument against the power of taxation can be drawn from its liability to abuse, this court said: " The power of taxation itself and the right of eminent domain may be perverted to purposes of...