Commonwealth v. Werth

• Decision Date: 07 September 1914
• Citation: 82 S.E. 695,116 Va. 604
• Parties: COMMONWEALTH. v. WERTH.
• Court: Virginia Supreme Court

82 S.E. 695

(116 Va. 604)

COMMONWEALTH.

v.WERTH.

Supreme Court of Appeals of Virginia.

Sept. 7, 1914.

Error to Circuit Court, Tazewell County.

Action by the Commonwealth against W. H. Werth, to recover an income tax. From a judgment exonerating defendant from the tax, the Commonwealth brings error. Reversed.

Jno. Garland Pollard, Atty. Gen., and C. B. Garnett, Asst. Atty. Gen., for the Commonwealth.

Greever & Gillespie, of Tazewell, for defendant in error.

WHITTLE, J. This is a writ of error to an order of the circuit court of Tazewell county, exonerating the defendant in error, W. H. Werth, a citizen and resident of Virginia, from tax on his income in excess of $2,000 derived from the practice of his pro fession as an attorney at law in this state for the year 1913.

Independently of constitutional authority, the power of the Legislature to impose such tax is not denied, but the contention is that it has not seen fit to exercise that prerogative. The question, therefore, for our determination involves the construction of Schedule D of the tax bill (Act April 16, 1903; Acts 1902-04, c. 148, as amended by Act March 14, 1912, c. 279), and not the power of the Legislature to enact it.

Schedule D reads as follows:

"Tax on Income.

"(10) * * * The classification under Schedule D shall be as follows, to wit: The aggregate amount of income in excess of two thousand dollars, whether received, or due but not received, within the year next preceding the first of February in each year.

"Income shall include:

"First. All rents, except ground rents or rent charge, salaries, interest upon notes, bonds or other evidence of debt, of whatever description, of the United States, or any other state or county, or any corporation, company, partnership, firm or individual, collected or received during the year, less the interest due and paid during the year.

"Second. The amount of all premiums on gold, silver, or coupons.

"Third. The amount of sales of live stock and meat of all kinds, less the value assessed thereon the previous year by the commissioner of the revenue.

"Fourth. The amount of sales of wood, butter, cheese, hay, tobacco, grain, and other vegetables and agricultural products during the preceding year, whether the same was grown during the preceding year or not, less all sums paid for taxes and for labor, fences, fertilizers, clover, or other seed purchased and used upon the land upon which the vegetables and agricultural productions were grown or produced, and the rent of said land paid by said person, if he be not the owner thereof.

"Fifth. All other gains and profits derived from any source whatever."

The circuit court held, and the defendant in error contends, that the enumeration in Schedule D as to what shall be included by the term "income" is intended as a legislative classification of certain incomes which are to be subject to taxation, and that all other incomes are not subject to taxation. This contention is pressed, notwithstanding the comprehensive language of the fifth clause. That clause, it is said, in accordance with the doctrine of ejusdem generis, must be limited to incomes derived from sources of the same kind as those enumerated in previous clauses of the schedule, and does not include incomes from licensed professions, trades, or businesses.

The rule invoked, at last, is only a rule of construction, and intended to throw light on a statute of otherwise doubtful import, and has no application where the language of the statute plainly manifests a contrary purpose. In such case, the obvious intention of the Legislature must be given effect rather than defeated by the misapplicationof a rule, the conceded function of which is to elucidate what is obscure, and not to obscure that which is manifest.

"It is the duty of the court to ascertain the intention of the Legislature, and, when ascertained, to give it effect; and in the search for that intent it is its duty to consider the object of the statute and the purpose to be accomplished. It must reach the intent, however, by giving to the words used their ordinary and usual significance, and to every word and every part of the statute, if possible, its due effect and...