State v. Hayne

• Decision Date: 27 August 1873
• Citation: State v. Hayne, 4 S.C. 403 (S.C. 1873)
• Parties: STATE v. HAYNE.
• Court: South Carolina Supreme Court

4 S.C. 403

STATE v. HAYNE.

Supreme Court of South Carolina.

August 27, 1873

An indictment against an attorney at law for practicing without " authority or license," which does not allege that the defendant was in default for the non-payment of a sum imposed by law as a tax upon him by reason of his profession as the ground of the charge, nor in any way point to the Act" to provide a general license law" under which the indictment was intended to be laid, is bad, and judgment thereon will be arrested.

A tax on professions or occupations is not forbidden by the Constitution of the State, either in terms or by implication.

For non-payment of a tax on business a penalty may be imposed, to be recovered by indictment, as for a misdemeanor.

Such a tax may be constitutionally imposed by a separate Act and take effect in the same fiscal year in which a tax on property is laid and collected.

IN THE CRIMINAL COURT OF CHARLESTON, JULY TERM, 1872.

The indictment alleged that I. W. Hayne, late of Charleston attorney at law, on the tenth day of April, in the year of our Lord one thousand eight hundred and seventy-two, at the said Charleston, and there on divers other days and times between that day and the day of the finding of this indictment, to wit: on the first day of July, in the year of our Lord eighteen hundred and seventy-two, without any authority or license therefor duly had and obtained according to law, did carry on or conduct business as an attorney at law, against the form of the Act of the General Assembly, in such case made and provided, and against the peace and dignity of the same State aforesaid.

The defendant pleaded " not guilty," and a jury was duly called and sworn.The acting Solicitor stated that the defendant was indicted for carrying on business as a lawyer in violation of Section 10 of the Act of Assembly entitled " An Act to provide for a general license law," approved March 13, 1872, and, to maintain the issues on the part of the State, he called as a witness Samuel L Bennett, who testified that he is Auditor of Charleston County, that he knows the defendant, and knows that defendant has been carrying on business as a lawyer in the County of Charleston since the tenth of April, 1872, and that he knows that defendant has not paid the sum required by the said Act to be paid in such cases, and has declined to pay the same.

The defendant asked the Court to instruct the jury as follows, to wit:

That the indictment cannot be sustained-

1st.Because it is not unlawful to carry on or conduct business as an attorney at law, without a license therefor.That the " Actto provide for a general license law," under which the indictment is framed, requires every person engaged in the profession or calling of attorney at law to pay into the treasury of the County in which such person resides, for the use of the State, a certain sum of money , but does not require such person to take out a license .It is not made the duty of a lawyer to take out a license, nor is it declared unlawful to carry on or conduct such business without one.

2d.That the indictment cannot be sustained, because the said Act of Assembly is unconstitutional, null and void in this, that though called a " license law," it is in fact a tax Act, or Act to raise supplies, and as such is repugnant.

1st.To Article IX, § 1 of the State Constitution, which declares " that the General Assembly shall provide by law for a uniform and equal rate of assessment and taxation."

2d.To Article IX, § 2 of the Constitution, which declares " that a poll tax shall not exceed $1 on each poll."

3d.To Article IX, § 3 of the Constitution, which limits the taxing power of the General Assembly to " an annual tax sufficient to defray the estimated expenses of the State for each year."

4th.To Article IX, § 4 of the Constitution, which declares that no tax shall be levied except in pursuance of a law which shall distinctly state the object of the same, to which object such tax shall be applied.

5th.To Art. II, § 33 of the Constitution, which declares " that all taxes upon property, real or personal, shall be levied upon the actual value of the property taxed, or shall be ascertained by an assessment made for the purpose of laying such tax."

6th.To Art. I, § 20 of the Constitution, which declares that " no person shall be imprisoned for debt except in cases of fraud."

7th.That it is repugnant to the whole scheme of the Constitution in reference to the powers of taxation therein granted to the Legislature.That there is no special grant of power to the Legislature to be found in the Constitution to enact a law of this kind, and the Act is therefore repugnant to Art. I, § 41 of the Constitution, which declares that all powers not therein delegated to the General Assembly remain with the people.

The Court refused to give the instructions asked for by the defendant; and charged the jury that the defendant was indicted for not paying the license fee required by law, and that if they were satisfied of the truth of what was stated by the Auditor, they must find a verdict of guilty.To which the defendant excepted.The jury found a verdict of guilty.The defendant then moved in arrest of judgment on the following grounds, to wit:

1.Because the indictment does not charge that the defendant has carried on the business of attorney at law without paying the fee required by law therefor, but charges that he has carried on the business of attorney at law without having a license therefor, and it is not unlawful to carry on or conduct business as an attorney, at law without a license therefor.That the " Actto provide a general license law," under which the indictment is framed, requires every person engaged in the profession or calling of attorney at law to pay into the treasury of the County in which such person resides, for the use of the State, a certain sum of money, but does not require such person to take out a license, nor is it declared unlawful to carry on or conduct such business without one.

II.Because the said Act of Assembly is unconstitutional, null and void, in this, that though called a license law, it is in fact a tax Act, or Act to raise supplies, and as such is repugnant to the same provisions of the Constitution mentioned in the 2d instruction asked of the Court.

This motion the Court overruled, and sentenced the defendant to pay a fine of $20 and costs.

The defendant appealed.

Hayne, Memminger, Porter , for appellants.

Whipper , Solicitor, contra.

The following points and authorities were submitted for appellants in this case, and also in the cases of the State vs. Chapeau & Heffron,(4 S.C. 378,)andTheState vs. Graham & Chapeau, (4 S.C. 380.)

The indictments in each of the above cases allege violations of one or more of the provisions of the " Actto provide for a general license law," approved March 13, 1872.

The first indictment charges that " I. W. Hayne, without any authority or license therefor, duly had and obtained, did carry on and conduct business as an attorney at law, against the form of the Act," & c.

The first count of the second indictment charges that R. Graham and F. F. Chapeau, " without any authority or license therefor, duly had and obtained according to law, did engage in the business of selling goods, wares and other merchandise, to wit: horses and mules, and bridles and saddles, and harness, against the form of the statute," & c. The second count of same indictment charges that said defendants, " without having paid into the County Treasury of the County in which the livery stables by the said Graham & Chapeau is kept, then and there situate and kept, for the use of the State, the sum of money required by law to be paid according to the rental value of said livery stable, did engage in the business of selling horses, mules and other goods, wares and merchandise, against the form of the statute," & c.

And the third indictment charges that F. F. Chapeau and J. F. Heffron, " without any authority or license therefor, duly had and obtained according to law, did then and there carry on their business of vending saddles and other goods, wares and merchandise, against the form of the Act," & c.

To the first indictment, the defendant pleaded " not guilty," and asked the Court to give certain instructions to the jury, which are set forth in the brief in that case.The Court refused to give the instructions asked for, and charged the jury: " that the defendant was indicted for not paying the license fee required by law, and that if they were satisfied of the truth of what was stated by the Auditor, they must find a verdict of guilty."To which charge the defendant excepted.The jury rendered a verdict of guilty, and thereupon the defendant moved in arrest of judgment upon the grounds stated in the brief.This motion the Court refused and passed sentence that the defendant pay " $20 and costs."From this judgment the defendant appeals.

The instructions asked for and the motion in arrest of judgment depend upon and embrace the same principles of law and may be considered together.The two points made and distinctly stated in, and which fairly arise upon, the record of the case, are:

1st.Is the indictment, as framed, sufficient in law to sustain the judgment of the Court? and

2d.Is the Act of March 13th, 1872, consistent with, or repugnant to, the Constitution of this State?

The same points are presented by the records in the other two cases.In each of them a general demurrer was filed, and in each the demurrer was overruled and the defendants found guilty.Motions in arrest of judgment were likewise made and overruled in each case, and sentence passed upon the defendants, from which ...