H. L. Carpel Of Richmond Inc v. City Of Richmond

• Citation: 175 S.E. 316
• Parties: H. L. CARPEL OF RICHMOND, Inc. v. CITY OF RICHMOND.
• Decision Date: 14 June 1934
• Court: Supreme Court of Virginia

175 S.E. 316

H. L. CARPEL OF RICHMOND, Inc.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

June 14, 1934.

Error to Hustings Court of Richmond.

Prosecution by the City of Richmond against H. L. Carpel of Richmond, Inc., for violation of city ordinance. Judgment of the police justice finding defendant guilty and imposing a fine was affirmed by the Hustings Court of the city of Richmond, and defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUD GINS, GREGORY, BROWNING, and CHINN, JJ.

Leon M. Bazile and Alfred J. Kirsh, both of Richmond, for appellant.

James E. Cannon, W. W. Martin, and Henry R. Miller, Jr., all of Richmond, for appellee.

HOLT, Justice.

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 10 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 124½, 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 1 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 2Sth of November, 1932. affirmed the judgment of the police justice, and that judgment is now before us on a writ of error.

[I] 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 14 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:

"124½. 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 vehicles 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 per-son, 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 bo 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 merchant engaged in the business of, selling to retail merchants. All of the articles sold by it consists 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 the corporation has been in the habit of selling to retail merchants in the following ways:

"First: It delivers goods from its store to retail merchants when and as ordered over the telephone or otherwise.

"Second: It has also made deliveries of goods to retail merchants from motor vehicles operated by it, the deliveries being made at the same time that the order is received; that is, it has 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 retail merchants.

"It is further agreed that H. L. Carpel of Richmond, Incorporated, operates four (4) trucks in the carrying on of the business above set out.

"It is further agreed that this prosecution is instituted for failure of H. L. Carpel of Richmond, Incorporated, to obtain the license prescribed by Section 124½ of Chapter 10 of the Richmond City Code as amended to January 1, 1932, and that H. L. Carpel of Richmond, Incorporated, has not obtained the licenses prescribed by that Section."

The ordinance assailed is authorized by section 192a of the Tax Code (Code 1930, Appendix, p. 2182).

The right to assess peddlers with a license tax, so long as it is done in good faith, is perfectly plain. Myer's Case, 92 Va. 809, 23 S. E. 915, 31 L. R. A. 379. It rests both in the power to tax and in the police power.

The statute tells us who are peddlers.

"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, § 192.

The right to classify and to exempt is widely recognized both in this country and in England.

"These immunities have been recognized for many years. By the statute of 50 Geo. III, c. 41, § 23, real workers and makers of goods within Great Britain were exempt from the payment of the license which was imposed upon hawkers and peddlers. 1 Barn. & Adol. 279; 10 Barn. & C. 66. In many if not in most of the American states, these immunities are granted to mechanics and farmers selling their own products, and the power is not questioned." People v. Sawyer, 106 Mich. 428, 64 N. W. 333.

This power has been exercised by our Legislature certainly for more than a century.

"No hawker or pedlar shall offer for sale or barter in any county or corporation within this commonwealth, any tin or pewter ware, or any other goods, wares or merchandise, not of his or her manufacture within this commonwealth; unless such person or persons shall ha, e previously paid the tax imposed by law, and obtained a license therefor * * *" Supplement to the Revised Code, p. 327 (act passed Feb. 24, 1823).

"No person shall, without a license, act as a hawker or pedlar in selling or trading in goods, wares, merchandize or other articles, except cotton yarns, and except articles manufactured by the seller in this state, or provisions or agricultural commodities grownor produced in the United States." Code 1849, c. 38, p. 210, § 30.

"The specific license tax on every person, for the privilege of peddling and bartering, shall be fifty dollars; but no resident mechanic or manufacturer, except a manufacturer of ardent spirits or malt liquors, shall be taxed for the privilege of peddling or bartering articles manufactured by himself in this state." Code 1873, p. 355, § 22.

By act approved May 20, 1903, Acts of Assembly 1902-03-04, c. 313, p. 533, it is declared that: "Nothing under this or the preceding section shall be construed to require of any farmer a peddler's license for the privilege of selling or peddling farm products, wood, or charcoal grown or produced by him."

Other instances might be added, but these are enough to show that a license has never been required for the sale of every conceivable article.

As we shall see, this case turns upon classification, and classification, unless essentially arbitrary, rests in the judgment of the Legislature.

State Board of Tax Commissioners of Indiana v. Jackson, 283 U. S. 527, 51 S. Ct. 540, 543, 75 L. Ed. 1248, 73 A. L. R. 1464, is a case in which a license tax on chain stores was involved. The court said: "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."

"One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 340, 55 L. Ed. 369, Ann. Cas. 1912C, 160.

In Louis K. Liggett Co. v. Lee, 288 U. S. 517, 53 S. Ct. 481, 483, 77 L. Ed. 929, 85 A. L. R. 699, it was said that "the Legislature may make the difference in method and character of the business the basis of classification for taxation." See, also, Richmond Linen Supply Co. v. City of Lynchburg, 160 Va. 644, 169 S. E. 554; Bryce v. Gillespie, 160 Va. 137, 168 S. E. 653; Farmers', etc., Ins. Asso. v. Horton, 157 Va. 114, 160 S. E. 315; Martin's Ex'rs v. Commonwealth, 126 Va. 603 102 S. E. 77, 724...