State v. Murphy

• Decision Date: 27 July 1916
• Citation: 98 A. 343
• Parties: STATE v. MURPHY.
• Court: Connecticut Supreme Court

98 A. 343

STATE

v. MURPHY.

Supreme Court of Errors of Connecticut.

July 27, 1916.

Appeal from Criminal Court of Common Pleas, Fairfield County; John J. Walsh, Judge.

Information against John F. Murphy for displaying upon real estate an advertisement containing more than four square feet of surface without first having secured a license therefore, in alleged violation of chapter 314 of the Public Acts of 1915, brought to the city court of Bridgeport, and thence by the defendant's appeal to the criminal court of common pleas in Fairfield county, where the court sustained a demurrer to the information and rendered judgment for the defendant, from which the state, with permission of the trial court, appealed. Error and cause remanded.

Frederick W. Huxford, Pros. Atty., of Stamford, and Ralph O. Wells, of Hartford, for the State. Thomas M. Cullinan, of Bridgeport, and James E. Wheeler, of New Haven, for appellee.

PRENTICE, C. J. The only claim made in support of the demurrer is that the act under which the information is brought (chapter 314 of the Public Acts of 1915) is unconstitutional as authorizing a taking of property without just compensation, without due process of law, and in denial of the equal rights guaranteed by the Constitution of the state.

Counsel for the state contend that the demurrer is not sufficient to enable the accused to avail himself of these objections, for the reason that it does not specify the particular constitutional provision or provisions claimed to be infringed by the statute. Under our practice in criminal cases this contention is not well made. The demurrer is sufficiently specific. State v. McKee, 73 Conn. 18, 24, 46 Atl. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124; State v. Pape, 90 Conn. 98, 100, 96 Atl. 313.

Examination of the act unmistakably discloses that it is a revenue producing measure enacted by the General Assembly in the exercise of its taxing power, and not, as the accused claims, a regulatory measure adopted for aesthetic or other reasons in the exercise of the police power. Passing by the requirements as to the contents of applications for a license contained in the first section hereinafter noticed, there is nothing to be found anywhere in it which is appropriate to regulation or points in that direction. No condition except the payment of a license fee is attached to the issuance of a license. All who pay the fee are entitled to receive one, and for whatever location it may be applied for. The amount of the fee is fixed and unvarying. The license, which thus automatically issues, entitles the licensee to an unrestricted use of the licensed space. The license is a general one authorizing the use of the space for advertising purposes generally, and without restriction as to the character of the advertisement or advertisements to be placed thereon, or the type, material, or design of the structure or construction upon which they are placed, and no right of control or direction in any of these respects or in any respect whatsoever is reserved or provided for. No purpose could by possibility be served by the enforcement of the act, unless it be the raising of revenue. Regulation is out of the question, and prohibition, as an indirect result, could not have been thought of, so small was the license fee imposed. It is only as a revenue producing measure that the act is susceptible of a reasonable explanation. That purpose it does serve, and its provisions are consistently and intelligently directed to that end, save only certain of those contained in section 1 prescribing the contents of the application which have no apparent connection with the rest of the act, and are wholly unrelated to any purpose as indicated by its remaining provisions. No reason for the presence in the act of these requirements is discernible, save that they may have been overlooked provisions of a proposed act discarded in its substantial features and changed in its fundamental character in the legislative process.

It does not militate against the taxation character of the act, that it is in form one which provides for the issuance of a license and the payment of a license fee as conditions of the doing of an act in the enjoyment of property rights, and makes the violation of its provisions a misdemeanor. License Tax Cases, 72 U. S. (5 Wall.) 462, 471, 472, 18 L. Ed. 497; State v. Feingold, 77 Conn. 326, 328, 59 Atl. 211; State v. Conlon, 65 Conn. 478, 483, 33 Atl. 519, 31 L. R. A. 55, 48 Am. St. Rep. 227.

Licenses may be required and license fees exacted for purposes of taxation, regulation, or prohibition. Cooley on Taxation, 1133. They are means which may be employed in the exercise of either the taxing or police power. Whether in a given case they are resorted to in the exercise of the one power or the other must be determined by a study of the legislation providing for them to ascertain its dominant purpose. Where the license fee is imposed solely or primarily for the purpose of raising revenue, it is the imposition of a tax, no matter by what name it may be called. Ward v. Maryland, 79 U. S. (12 Wall.) 418, 429, 20 L. Ed. 449; Mayor v. 2d Ave. R. R. Co., 32 N. Y. 261, 274; State v. Boyd, 63 Neb. 829, 831, 89 N. W. 417, 58 L. R. A. 108.

Counsel for the accused contend that an interpretation of the act as a tax measure leads to double taxation, and that weight should be given to that fact in its construction. It is indeed true, as urged, that the general policy of our law is to avoid double taxation, and that as between two alternative constructions preference should be given to that which escapes such result. But that principle is applicable only to cases of doubtful construction, and does not justify one contrary to the plain language of the legislative body and its intent as thus manifested. Toll Bridge v. Osborn, 35 Conn. 10, 21; Osborn v. New York & N. H. R. Co., 40 Conn. 491, 494. To make this a regulatory statute would be to ignore its provisions and to substitute others which are not found in it.

Regarding the act as an exercise of the taxing power, we fail to...