Ould v. City of Richmond

• Decision Date: 20 June 1873
• Court: Virginia Supreme Court
• Parties: OULD & CARRINGTON v. THE CITY OF RICHMOND.

64 Va. 464

OULD & CARRINGTON v. THE CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

June 20, 1873

1. The council of the City of Richmond may lay a tax upon lawyers as such.

2. The ordinance of the council provides that lawyers and others shall be divided into six classes, and that those in each class shall pay a certain sum as his tax; and it directs that the committee of finance shall place each lawyer in the class to which they shall think he properly belongs, looking to all the circumstances of the case. And it is provided that when the committee have completed their classification, public notice shall be given, and any lawyer dissatisfied with his classification, may appear before the committee and have it corrected if erroneous. HELD:

1. The tax is not an income tax, nor are the duties imposed on the committee legislative, but ministerial; and the ordinance is not unconstitutional.

This was an action of assumpsit in the Circuit court of the City of Richmond, instituted in November 1871, by Ould &amp Carrington, lawyers, against the City of Richmond. The object of the suit was to test the constitutionality of the ordinance of the City Council, imposing a tax on lawyers. Issue was made up on the plea of " non assumpsit, " and the whole matter of law and fact was submitted to the decision of the court.

The power of taxation vested by the charter in the council of the city is stated by Judge Anderson in his opinion, and need not be repeated. By the ordinance imposing taxes, persons following various employments in the city were classified and a specified tax was imposed on each class. Among these were lawyers who were divided into six classes. The eleventh section of the ordinance provides--" that the committee on finance shall place each person and firm employed in the trade or business referred to in sections three, four, five seven and eight, in the class to which the committee shall be of opinion such person or firm properly belongs, looking to all the circumstances of the case." And it was directed that when the committee had completed their classification they should give notice of the fact by publication in two of the papers of the city, and that the committee would meet at a specified time to hear any application for a correction of the classification; and in the meantime the list was left in the auditor's office, open for the examination of all persons interested in the matter.

In 1871 the committee of finance placed the plaintiffs, as lawyers, in the first class, and classified all lawyers practising in the city in the respective classes mentioned in s. 5 of the ordinance: that being the section in reference to lawyers. In doing so the committee had no assessment of the plaintiffs' income from their profession before them; nor did the committee ascertain, or attempt to ascertain, their incomes in any way; but formed its own estimate, without evidence, of the reputation and standing of the lawyers practising law in the city of Richmond, including the plaintiffs, and their supposed capacity to make profits in that way, relatively with each other; and classified them accordingly. The committee made no report to the council of their action in the premises; nor did the council ever revise or consider it in any way; but an opportunity was offered to all the lawyers to show, each for himself, that they had been taxed too high in the manner provided in the eleventh section of the ordinance; and some of them availed themselves of that opportunity; and among them the plaintiffs, whose tax was reduced from one hundred and fifty to one hundred dollars; but in doing so the committee acted without evidence of the relative incomes of the lawyers embraced in the classification. The plaintiffs having paid the tax under protest, after the officer had levied upon their property, brought this action to recover it back.

Upon the hearing of the case there was a judgment for the plaintiffs; and the city of Richmond having taken an exception to the opinion and judgment of the court, applied to this court for a supersedeas; which was awarded.

Meredith, for the appellant.

Wm. Green, and R T. Daniel, for the appellees.

ANDERSON J.

The power to tax rests upon necessity, and is inherent in every sovereignty. It is included in the general grant of legislative power; and reaches, as is said by Mr. Justice Cooley, " to every trade or occupation; to every object of industry, use or enjoyment; to every species of possession." " If the right to impose the tax exists, it is a right which in its nature acknowledges no limits. It may be carried to any extent, within the State or Corporation which imposes it, which the will of such State or Corporation may prescribe." Cooley on Constitutional Limitation, chap. 14. p. 479-482. And in the language of Chief J. Marshall, the power of taxing the people and their property is essential to the very existence of government, and may be ligitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against its abuse is the structure of the government itself. The influence of the constituents over their representative is the safeguard against its abuse. Mc Culloch v. Maryland, 4 Wheat. R. 316-428. It must always be conceded that the proper authority to determine what should, and what should not properly bear the public burden, is the legislative department of the State. This is true not only of the State at large, but it is true also in respect to each municipality, or political division of the State. But these municipal corporations have only such powers as the Legislature of the State confers on them. Cooley 488. And their powers are controlled by the constitution of the United States, and of the State. The restrictions which they impose on the legislative power of the State rest equally upon all the instruments of government created by it. Ib. p. 198.

The powers of public corporations are either express, implied, or incidental. And except as to such powers as are incidental, the charter itself, or the general law under which they exist, is the measure of the authority to be exercised. They have no inherent jurisdiction, like the State, to make laws, or adopt regulations of government. They are governments of enumerated powers, acting by a delegated authority; so that while the State Legislature may exercise such powers of government, within the description of legislative power, as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and such as are incidental, subject to such regulations and restrictions as are annexed to the grant. Cooley 192.

With these general principles in view, we will now enquire, whether the charter of the City of Richmond invests the municipality with power to impose the tax complained of. And then if such power is conferred, has it been properly exercised in this case? By section 69 of the charter, sep. acts of 1869-70 p. 138, it is provided that, " For the execution of its powers and duties the city council may raise annually, by taxes and assessments in said city, such sums of money as they shall deem necessary to defray the expenses of the same, and in such manner as they shall deem expedient, in accordance with the laws of this State and of the United States." This clause confers the general power of taxation, except only as it may be limited by the laws of the State and the United States; and includes all powers and subjects of taxation. And as to the manner of laying the tax, the council is invested with full discretion. And they are authorized to lay a tax to defray the expenses of the city to an amount which they may deem necessary. It seems to me that this language is broad enough to embrace, not only a tax on real and personal property, but every other description of tax which the council might deem necessary and proper, unless its meaning is limited and circumscribed by what follows.

The clauses of this section which follow, are evidently designed to restrict the unlimited power of taxation given by the clause which has just been recited, to a certain extent, by prohibiting certain taxation which would have been included in the power given, if not thus restricted, to wit, on city bonds, or capital invested in real estate, or in manufactures outside the limits of the city, although the persons engaged in such business or manufactures have a place of business in the city, upon the stock of a corporation and the dividends thereof at the same time, upon any capital, & c., employed in a business upon which a license or other tax is imposed.

These are the only limitations as to the subjects of taxation; and consequently the power of taxation, on all other persons and subjects of taxation, is given. The other restrictions are as to the mode or manner of taxation; and they are, that the tax on property shall be equal and uniform; that capital invested in business operations shall be taxed as other property; and that stocks shall be...