Laing v. Fox
Decision Date | 15 June 1934 |
Docket Number | (No. 7919) |
Citation | 115 W.Va. 272 |
Parties | John Laing v. Fred L. Fox, State Tax Commissioner |
Court | West Virginia Supreme Court |
1. Constitutional Law
Sub-section (i), section 2, chapter 33, Acts (First Extraordinary Session) 1933, imposing a privilege tax upon every person engaging in or continuing in any business, profession, trade, occupation or calling not included in other subdivisions of the Act (except persons engaged in or continuing in the business of agriculture, horticulture or grazing), is not in conflict with the Federal or State Constitutions.
2. Licenses
Sub-section (i), section 2, chapter 33, Acts (First Extraordinary Session) 1933, imposing a privilege tax upon every person engaging in or continuing in any business, profession, trade, occupation or calling not included in other subdivisions of the Act (except persons engaged in or continuing in the business of agriculture, horticulture or grazing), which became effective from passage, May 26, 1933, is operative from the beginning of the calendar year, 1933.
3. Statutes
Sub-section (i), section 2, chapter 33, Acts (First Extraordinary Session) 1933, imposing a privilege tax upon every person engaging in or continuing in any business, profession, trade, occupation or calling not included ih other subdivisions of the Act (except persons engaged in or continuing in the business of agriculture, horticulture or grazing), includes persons receiving income from loans and investments.
Appeal from Circuit Court, Kanawha County.
Suit by John Laing against Fred L. Fox, State Tax Commissioner. From a decree sustaining a demurrer to and dismissing the bill, the plaintiff appeals.
Affirmed.
Blue, Dayton & Campbell, Arthur S. Dayton and Wm. F. Blue, for appellant.
Homer A. Holt, Attorney General, Ira J. Partlow and W. Holt Wooddell, Assistant Attorneys General, for appellee.
This is an appeal from a decree of the circuit court of Kanawha County, sustaining a demurrer to, and dismissing, the bill, in the suit of a taxpayer to enjoin the State Tax Commissioner from levying and collecting a privilege or gross income tax.
The statute [sub-section (i), section 2, chapter 33, Acts, First Extraordinary Session, 1933] under which the tax is sought to be levied and collected, follows: "Upon every person engaging or continuing within this state in any business, profession, trade, occupation or calling not included in the preceding subdivisions or any other provision of this act (but not including a person engaging or continuing in the business of horticulture, agriculture or grazing) there is likewise hereby levied and shall be collected, a tax equal to one per cent of the gross incomes of persons taxable under other subdivisions hereof not derived from the exercise of privileges taxable thereunder." A tax is imposed upon the privilege of engaging in specific business activities by other parts of the Act.
The bill discloses that plaintiff, during the year 1933, received income from (a) salary, (b) interest on loans, (c) rents and royalties, (d) profit on casual sales of stock, (e) dividends on corporate stock, and (f) income on gas sales; charges that subdivision (i) and related provisions of the Act are unconstitutional under (1) the Fourteenth Amendment to the Federal Constitution, (2) section 1, Article X, as amended, of the West Virginia Constitution, and (3) section 30, Article VI of the State Constitution; and alleges that subdivision (i) is not applicable to income received prior to its effective date, May 26, 1933, and that it does not apply to investment receipts in the nature of interest, dividends, rentals, profits from casual sales of property and the like.
The exemption of income from horticulture, agriculture or grazing is the basis of the first and second constitutional objections.
1. Plaintiff contends that the statute, by reason of the exemption, discriminates in favor of a large class of citizens and denies to him the equal protection of the laws as guaranteed under the Fourteenth Amendment to the Federal Constitution. The state legislatures may, without violation of the Fourteenth Amendment, select and classify the subjects of taxation so long as they do so in observance of a reasonable consideration of difference or policy. In the recent chain store tax case (Board of Tax Commissioners v. Jackson, 283 U. S. 527, 51 S. Ct. 540, 75 L. Ed. 1248) involving the validity of an Indiana statute, imposing a graduated tax, based upon the number thereof, on stores or mercantile establishments, under a single ownership and management, the Supreme Court of the United States, speaking through Mr. Justice Roberts, stated the rule as follows: A similar observation was made by this court in Hope Natural Gas Company v. Hall, 102 W. Va. 272, 277, 135 S. E. 582, 583, sustaining a tax on the privilege of engaging "in mining and producing for sale, profit, or use, any coal, oil, natural gas, limestone, sand or other mineral product, or felling and producing timber for sale, profit or use." Judge Hatcher, writing the opinion of the court, said: In Singer Sewing Machine Co. v. Brickell, 233 U. S. 304. 34 S. Ct. 493, 58 L. Ed. 974, the Supreme Court upheld an Alabama statute taxing every person, firm or corporation selling or delivering sewing machines in person or through agents and exempting merchants selling sewing machines at their regularly established places of business. In the opinion it is stated, as a basis of the decision: ...
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