Fox's Adm'rs v. Commonwealth

• Decision Date: 14 August 1860
• Parties: FOX'S ADM'RS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

57 Va. 1

FOX'S ADM'RS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

August 14, 1860

1. The § 15 of the act of March 2, 1854, which imposes a tax on collateral inheritances, has been repealed by the act of March 18, 1856, imposing taxes for the support of the government, though there is no provision of the latter act repealing the former.

2. Where it is manifest that a law is intended to embrace and include the whole legislation on the subject to which it refers, provisions of former laws on that subject, not embraced in it, are repealed by implication.

3. For rules on the construction of statutes, see opinion of Moncure, J.

This was a motion in the Circuit court of Fauquier county, by the commonwealth against the administrators with the will annexed, of John Fox, deceased, to recover the tax on collateral inheritances, imposed by the 15th section of the act of March 2, 1854, entitled ‘ An act imposing taxes for the support of government," Sess. Acts 7. The defendants appeared and insisted that the act of March 2 1854, had been repealed by the act of March 18, 1856, having the same title; and the facts were agreed by the parties.

It appears from the facts agreed, that John Fox died on the 26th of January, 1859, having made a will which was duly admitted to probate in the Circuit court of Fauquier county. By his will he emancipated his slaves, and gave his whole property in trust for their use. The commissioner of the revenue for the county of Fauquier assessed the property for taxation taking the value fixed upon it by the appraisers appointed by the court of probate, which, for the slaves emancipated, was one hundred and eight thousand two hundred and fifty dollars for the lands and personal property, twenty-five thousand three hundred and sixty-nine dollars; and for money and credits, seventy-one thousand six hundred and eighty dollars--making together, two hundred and five thousand two hundred and ninety-nine dollars, which at two per cent., made the tax four thousand one hundred and five dollars and ninety-eight cents.

On the hearing of the case the Circuit court held that the act of March 2, 1854, was not repealed by the act of March 18, 1856 but also held that the value of the negroes manumitted was not liable to the tax of two per centum, as of the decedent's estate: and judgment was rendered for the sum of $1,940 98, the amount of the tax on the other property. From this judgment the administrators of Fox obtained a writ of error to this court.

Macfarland and Roberts, for the appellants.

The Attorney General, for the Commonwealth.

MONCURE J.

This case involves the question, whether the fifteenth section of the act passed March 2, 1854, entitled " An act imposing taxes for the support of government," which declares that " the tax on the estate of a decedent, prescribed by the thirty-ninth chapter of the Code of Virginia, shall be two per centum of such estate," (Sess. Acts p. 7,) was repealed by implication by the act passed March 18, 1856, having the same title, (Sess. Acts p. 11,) there being no such provision in the latter act.

This question was noticed in the opinion of Judge Lee in Eyre v. Jacob, 14 Gratt. 422, and he inclined to think there was no such repeal, but thought it unnecessary to express an opinion upon it. Id. 440. It was not decided, and did not, in fact, arise in the case, but comes up now, for the first time, to be decided by this court.

It was stated on the one side, and conceded, I believe, on the other, in the argument of this case, that it was the uniform and unvarying practice of the legislature, from the very organization of the government down to the time of the adoption of the present Code, (or at least, the session of 1848-9, when the Code was under consideration,) to pass an annual tax law, embracing all the taxes imposed for the support of government during the current year; and no instance occurred during all that period, of a permanent tax, or one which was created to endure longer than a year.

The revisors proposed a change of this practice, and recommended a scheme of taxation which is substantially embodied in the Code. Their reasons for doing so are set forth in a note to chap. 40, page 230, of their report; in which they say: " It has been the usage to pass a law annually on this subject; each law being a copy, or nearly a copy, of that which preceded it. But it is a usage for which no very good reason is perceived. Formerly, when there were few subjects of taxation, the annual law was a short one. But now it occupies six pages of the Session Acts. The present chapter, though embracing every subject, curtails the length of the law, and will render it unnecessary to do more in any year than alter the rate of taxation when there is occasion for it. If not altered, the previous law will remain in force. Such a law as this will not only save legislation and printing, when there is no occasion to change the law, but will guard against the possible contingency of a failure on the part of the two houses of the assembly to agree upon a new revenue law."

The proposed scheme is embodied in chapters 35, 38, 39 and 40 of the Code. The first three of these chapters provide for the assessment of taxes; the 35th on property, the 38th on licenses, and the 39th on dividends, certain estates of decedents, process in suits, official seals and deeds, wills and administrations. The 40th chapter prescribes what is to be collected on each subject of taxation; and embraces four sections, declaring the yearly amount of taxes, to wit: § 1, on the persons and subjects mentioned in the 35th chapter; § 2, on the licenses mentioned in the 38th chapter; § 3, on the subjects mentioned in the 39th chapter; and § 4, on each officer of government receiving a salary out of the treasury other than the governor or a judge: the subject of this section being mentioned in none of the preceding chapters, because the tax is directed to be deducted at the time the salary is audited and paid, and therefore, neither the commissioner of the revenue nor the sheriff has anything to do with it. The first three of these four chapters depend on the last, and without it, or something else in its stead, are ineffectual. A repeal of the last, in whole or in part, if nothing else be adopted in the place of what is repealed, is a virtual repeal, or suspension to the same extent, of that which depends upon it. There can be no tax unless its amount, or the means of ascertaining its amount be prescribed by law.

The tax in question, called the tax on collateral inheritances, is imposed by the Code; the portions of it relating to this tax being, ch. 35 § 42 p. 184, ch. 39 §§ 6-12 pp. 214 and 215, and ch. 40 § 3 p. 220. The last chapter and section declares in regard to it, that " the tax on the estate of a decedent, prescribed by the 39th chapter, shall be two per centum of such estate."

The Code was adopted in Angust, 1849, and took effect on the 1st of July, 1850. No tax law was passed at the session of the legislature of 1849-50; consequently the tax law contained in the Code, without alteration or addition, was the law of 1850.

In 1850-51, Sess. Acts p. 3, an act was passed imposing taxes in addition to the taxes then imposed by law, on certain subjects. This act was an amendment of the tax law contained in the Code; which, as thus amended, was the law of 1851.

In 1851 the present amended constitution was adopted, which made important changes on the subject of taxation and finance, (see Art iv. §§ 22, 23, 24, and 25,) and went into operation at the close of that year.

In 1852, at the first session of the legislature under the new constitution, it became necessary to conform the tax law to the provisions of that instrument, and several acts were passed for that purpose: as " An act concerning commissioners of the revenue," passed April 24, 1852 Sess. Acts p. 3; an act amendatory thereof, passed May 24, 1852, Id. p. 6; " An act authorizing the issuing of licenses in certain cases," passed June 5, 1852, Id. p. 11; and " An act imposing taxes for the support of government for the fiscal year 1852-53," passed June 5, 1852. Id. p. 14. The first section of the last act declares " that for a year there shall be levied and collected on the persons and subjects mentioned in the act of Assembly passed on the 24th day of April, 1852, and any act amendatory thereof, the taxes following, to-wit:" and then proceeds in the subsequent sections to prescribe the amount of taxes. Though thus expressly referring only to the persons and subjects mentioned as aforesaid, it is a perfect tax law, and embraces other persons and subjects; indeed, all on which a tax was intended to be imposed. The act was evidently drawn after the model of the 40th chapter of the Code, for which it was designed as a substitute. The subjects are taken up in the same order in each; as 1st, property; 2d, licenses, and 3d, other subjects; the only material difference in the order being, that the section imposing a tax on officers of government receiving a salary out of the treasury, which is the 4th and last of the chapter, is ranged with the sections relating to taxes on property in the act. The tax on the estate of a decedent, prescribed by the 39th chapter of the Code, is mentioned in the same words in the 40th chapter and the said act, and the same amount of two per centum of such estate is imposed by each. The words have the same relative position in each, following those which prescribe the tax on bank dividends, and preceding those which prescribe it on process, & c.; though they form, with them, one section of chapter 40, to-wit: § 3, while they alone constitute one section of the act, to-wit: § 16. The 20th section of the act...