Mckenney v. C.C. of Alex.

• Decision Date: 20 January 1927
• Citation: 147 Va. 157
• Parties: CHARLES LEO MCKENNEY v. CITY COUNCIL OF ALEXANDRIA.
• Court: Virginia Supreme Court

Page 157

147 Va. 157

CHARLES LEO MCKENNEY v. CITY COUNCIL OF ALEXANDRIA.

Supreme Court of Virginia, Richmond.

January 20, 1927.

1. TAXATION — Filling Stations — License Tax. — A city council can legally classify one who buys or sells motor oil and gasoline, pumped into the tanks of customer's automobiles by means of standards (erected on his own land or on the curb), as operator of a gasoline filling station and tax or license him as such. There is such a distinction between an ordinary merchant and the operator of a gasoline filling station as will permit a separate classification for the purpose of taxation.

2. LICENSES — Merchants Tax — Filling Stations. — The operator of a filling station cannot be required to pay both a merchant's license and a license for the privilege of operating a filling station.

3. TAXATION — Filling Station — Operator not a Merchant. — The operator of a gasoline filling station is not a merchant, as that term is generally understood, and cannot, by voluntarily paying a State license as a merchant, prevent the assessment of a specific tax against his business.

4. TAXATION — License — Classification of Business. — The general rule, so far as classification of business for the purpose of taxation is concerned, is that trades, occupations, professions and privileges may be classified for purposes of license or occupation taxes, and different licenses may be imposed upon the various classes, provided the classification is reasonable. General classes may be subdivided into particular classes and licensed or taxed.

5. TAXATION — Licenses — Operator of Filling Station Distinguished from Ordinary Merchant. — There is such a wide enough distinction, in this day, between the merchant dealing in the ordinary commodities of trade and the operator of the modern gasoline filling station, as to justify and render unobjectionable from a legal standpoint the classification of the latter as a distinct business. It cannot be said to be an unreasonable classification. It is not a question of whether the operator of the filling station is a merchant, but is he engaged in such a distinct kind of merchandising as will warrant a separate classification for the purpose of imposing an occupational or privilege license?

6. TAXATION — License — Filling Stations — Constitutionality of Ordinance Providing for License for Filling Stations. — Section 168 of the Constitution of 1902, providing for uniformity in taxation, is not violated by an ordinance imposing a license tax for each gasoline discharge standard upon persons dispensing gasoline, whether the standards are on the curb or on the private property of the operator of the filling station.

7. TAXATION — License — Classification — Reasonableness — Uniformity. — The discrimination between classes for license taxes, in order to avoid the pitfalls of unconstitutionality, must rest upon some reasonable ground of difference which has some relation to the business or occupation. The tax must bear equally and uniformly upon all persons engaged in the same class of business.

8. TAXATION — License — Filling Stations — Tax on Gasoline Discharge Standards, — An annual license tax upon each gasoline discharge standard operated by a person dispensing gasoline is not a tax upon the implements used in the conduct of a mercantile business, but it is a tax upon a business. Nor is it taxing a part of a business, after having taxed the whole, or dividing a single taxable privilege and requiring a separate license for each. Nor does the fact that the ordinance includes all gasoline filling stations, whether located on the street or on private property, render it unconstitutional. The tax imposed is an occupation tax and if it includes all persons engaged in the business it is not objectionable even if it does not take into consideration the volume of business or the location.

Error to a judgment of the Corporation Court of Alexandria.

The opinion states the case.

Moncure, Davis & Budwesky, for the plaintiff in error.

Albert V. Bryan, for the defendant in error.

CHICHESTER, J., delivered the opinion of the court.

The plaintiff in error, defendant below, is here complaining of a judgment of the Corporation Court of the city of Alexandria convicting him of violating section 36 of ordinance No. 31 of the city of Alexandria and imposing upon him a fine of $5.00 and costs.

Defendant was tried by the court upon the following agreed statement of facts: "The defendant, Charles Leo McKenney, operates in the city of Alexandria, Virginia, a gasoline filling station, and as a means of dispensing gasoline to the public he maintains five upright cylindrical discharge standards, known as sentinels, about eight feet in height, eighteen inches in diameter and colored red. These standards are not on the street curb, but are situated on the defendant's property on the side of an open driveway leading to and from the street in a semielliptical shape.

"The plaintiff is a municipal corporation duly chartered under the laws of the Commonwealth of Virginia under the style of city council of Alexandria; that as such it has the general power to levy taxes and licenses and to collect the same; that by ordinance (No. 31, approved March 6, 1924) duly passed, a license tax of twenty-five dollars and fifty cents ($25.50) was levied by section 36 thereof upon each gasoline discharge standard in the city of Alexandria for the fiscal year beginning June 1, 1924, and ending May 31, 1925; that the said ordinance is incorporated herein by reference, and permission given to each of the parties hereto to refer to and produce the same at any stage of this litigation; that the said license tax was duly assessed and charged upon the five gasoline standards of the said defendant; that the defendant refused to pay the same and continued to operate said discharge standards; that the defendant was arrested on a city warrant, tried and convicted by the civil and police justice of the said city of violating said ordinance, and on appeal to the corporation court thereof the said conviction was sustained and a fine of five dollars ($5.00) and costs imposed; and the said arrest and conviction were valid under the said ordinance and warrant if that provision of the ordinance levying said license tax is valid.

"The defendant had been assessed with and had paid to the plaintiff under the said ordinance (section 54) a merchant's license of thirty-three dollars and thirty-five cents ($33.35) computed on gross amount of his purchases."

The refusal of the court to set the judgment aside as contrary to the law and the evidence, upon motion of the defendant, is assigned as error.

The section of the ordinance under which the defendant was convicted is as follows: "Any person, firm or corporation, dispensing gasoline by means of curb pumps, curb discharges, or stations, whether in the streets or on private property, shall pay an annual license tax of $25.50 for each discharge standard regardless of whether one or more discharge standards are supplied by the same pump."

There are two contentions made by defendant below by which he seeks to avoid the consequences of the penalty imposed upon him. One is that the city council having provided by section 54 of ordinance 31 for the...