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assessor of his district to assess the tax, who is to give him a certificate of the amount assessed, which is to be produced to the collector, who is to receive the taxes assessed, and grant a receipt therefor written upon the certificate, which certificate and receipt constitute his license to prosecute the business of distiller, the court say: "It is his duty to pay the tax for the privilege before he exercises it." Where the statute authorized the arrest of any party engaged in distilling who should fail to pay the tax, if the collector should be unable to find sufficient personal property to satisfy the taxes so assessed, the collector levied upon personal property of the party, and left it in his possession. On the day appointed for the sale, the collector found the property in possession of a United States revenue officer, who claimed it under a levy for a tax due from the party to the United States government for distilling, the levy having been made subsequent to that of the State collector. The property was sold and was only sufficient to pay the tax due to the United States. The party was arrested, and it was held that he was legally in custody, and that the statute did not violate the provision of the bill of rights of Virginia, that no man shall "be deprived of his liberty, except by the law of the land or the judgment of his peers." 1

§ 79. License Tax on Foreign Corporations.-As we have seen heretofore, the provisions as to equality and uniformity of taxation do not apply to corporations of other States. The doctrine on the subject is, that foreign corporations necessarily can do no act beyond the limits. of the sovereignty creating them, and that the power of the State creating them does not extend beyond its own territory. When they exercise the powers conferred by their charter in other States, they do so by the permission of those States; and as they can act only by the permission of the State, the State may prescribe the terms on which they may exercise their chartered powers.2 These foreign corporations, whether chartered by foreign countries or other States of the Union, are not entitled to claim the benefit of that clause of the Constitution of the United States which secures to the citizens of each State all the privileges and immunities of the citizens of the several States. Corporations are not citizens in the sense of the Constitution, except for the purpose of giving jurisdiction to the court. The limit to the tax imposed on these corporations is the discretion of the

1 Commonwealth v. Byrne, 20 Gratt, 165, 198.

Bank of Augusta v. Earle, 13 Peters, 519; 8 Wall. 168; 10 Wall. 410, 566, 573; 100 Mass. 531; Slaughter's Case, 13 Gratt. 767; 48 Ill. 172; Commonwealth v. Milton, 12 B. Monr. 212; Tatem v. Wright, 3 Zabr. 429; Western Union Tel. Co. v. Lieb, 76 Ill. 172. 3 Ante, § 65, and authorities cited.

legislature, where there is no express constitutional limitation on the subject of taxation. This view, which is the undoubted current of authority, is ably combated by Justice Beasley, as follows: "It would seem to be clear that a State cannot tax, for the purpose of revenue, a foreign corporation in a mode different in principle from that in which she can tax one of her own domestic corporations. It is not denied that the corporate existence of a company is recognized, not by right but of grace, in foreign jurisdictions, nor that each government has the competence to refuse to recognize such existence, except on its own conditions. The principle is universally acknowledged; hence laws requiring insurance companies and other foreign corporations to file bonds and submit to other exactions as a prerequisite to their admission in an incorporated capacity into the State. Such laws, when rightfully made, are evidently mere police regulations, designed to protect the citizens of the State in which they are enacted from loss or imposition, and on this ground their legality cannot be drawn in question. But a tax law, having revenue for its object, is based upon a principle entirely different. The right to tax for revenue is the right of the government to take so much of the property of the person or company on whom the tax falls as such government may deem necessary for its public wants. The act of taking the property, therefore, must of necessity be an acknowledgment of the legal status of the person or company whose property is taken. To assert that the company whose property is thus taken has no right but such as the government taking chooses to confer, is to assert that such company has no title to its property but such as may be conceded to it by the taxing power. It seems to be utterly inconsistent with legal principles which have always been deemed axiomatic, to hold that a government can recognize the legal existence of a foreign corporation for the purpose of taxation, and at the same time deny such existence for the purpose of depriving it of those rights which belong to every individual or company known to the law. Such a doctrine would obviously offer the entire property of foreign corporations as a prize to the rapacity of any State in whose territories it might be, or over which it might happen to be carried." On the same principle, the general government might seize the property of all foreign corporations. It is apparent that this able argument in favor of the equality of taxation of foreign and domestic corporations, while it shows the injustice of discriminating in such tax, does not point out what provisions of the Constitution of the State are violated. While it may

1 Erie Railway v. State, 31 N. J. Law (2 Vroom), 543.

be true, as a matter of principle, that taxation should be laid for the purpose of revenue by an equal and uniform mode, yet what shall be the subjects of taxation, the mode and the rate are in the discretion of the legislature, in the absence of express constitutional limitation on the subject of taxation, a discretion which has no limitation except that its exercise shall not abridge any of the private rights of person or property secured by the Constitution.1

§ 80. What Occupations may be Licensed, and how the Tax may be Regulated.-Any occupation may be licensed, and the person pursuing it required to pay a tax, but a question often arises as to what occupations are included by a particular tax law. A law imposing a tax on certain specified occupations, and "on other employments," includes lawyers. And where the Constitution allows the legislature to tax "property, merchants, peddlers and privileges," a license granted to a wholesale grocer upon the payment of a tax is included in privileges. Where a tax law provided that "any person, firm, company or corporation who desires to engage in, or carry on, any business or profession hereafter named, shall pay to the treasurer," &c., it was held that each member of a law firm must take out a license under this act.4

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The legislature of Maryland imposed a license tax upon "persons keeping or exhibiting for use a billiard table or tables." A club owned and kept a billiard table, at which members and strangers introduced by members only could play at a charge of 64 cents a game, to be paid by the member only, which charge was insufficient to defray the expenses. The club was held liable for the tax, the court saying it is in the power of the State to tax the amusements of the people, either for the purpose of revenue or as a police regulation.5 On the other hand, where a hotel keeper had a billiard table, kept for the amusement of his boarders, free of charge, the person giving attention to the table while others were amusing themselves was held not to be such a person as is contemplated by the Constitution, which authorizes the taxing of persons "pursuing any occupation, trade or profession;" the occupation intended, like the trade or profession, must be for profit. In Pennsylvania, under a statute imposing a license tax "on all dealers in domestic goods, wares and merchandise, and on every person who keeps a store or warehouse for purpose of

1 See ante, Chapters I and II.

State v. Waples, 12 La. Ann. 343; State v. Fellows, Id. 344.

3 French v. Baker, 4 Sneed (Tenn.) 193.

Jones v. Page, 44 Ala. 657.

5 Germania v. The State, 7 Md. 1; Sears et al. v. West, 1 Murphey (N. C.) 291.

6 Tarde v. Bauseman, 31 Texas, 377.

selling goods, &c., where he is concerned in their manufacture," the owner of a mill, near Reading, who purchased grain, as well as raised it on his farm, and retailed the flour at his mill, and hauled it to Reading and other places for sale, was held liable to the license tax.1 In the same State, under a similar act to impose a license tax upon "all dealers in American goods, wares and merchandise, and upon all persons concerned in the manufacture of such goods, wares and merchandise who shall keep a store for the sale of them, except mechanics who shall keep a store or warehouse at their own shop or manufactory for the purpose of vending their own manufactures exclusively," the defendants were held not liable to the tax under the following state of facts: They were manufacturers of locomotives, tenders and component parts thereof. No engines were built to be exposed for sale, all being intended to supply orders received therefor, and none were offered for sale in the market unless companies which had ordered locomotives failed to pay for them when finished. Black, J.: “A dealer in the popular, and therefore statutory sense, is not one who buys to keep, or makes to sell, but one who buys to sell again. He stands intermediately between the producer and the consumer, and depends for his profit, not upon the labor he bestows on his commodities, but upon the skill and foresight with which he watches the markets. A man who makes his locomotives is a mechanic." When the legislature gave authority to the city of Boston to regulate certain employments or avocations, an ordinance requiring a license to run a hack from the center of Boston to the center of Roxbury, and the payment of a fee therefor, was thought to be an exercise of extraterritorial power. But in California, a stage company carrying passengers to and from Sacramento City was held liable to a license tax by the city." The mere fact that the business of carrying passengers is not within the municipal limits does not make the receiving and discharging of them and contracting for them less a business in the city." A license tax on bakers may be regulated by the weight of their bread, or on auctioneers by the amount of their monthly sales." A discrimination in a license tax between different localities of a city, according to the supposed advantages they may present for the business for which a license is sought, but making no distinction as to

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1 Berks Co. v. Bestolet, 13 Penn. St. 522.

Norris Bros. v. Commonwealth, 27 Peun. St. 494.

3 Commonwealth v. Stoddard, 2 Cush. 562.

City of Sacramento v. California Stage Co. 12 Cal. 135.

5 The Mayor v. Yuille, 3 Ala, 137.

6 People v. Colman 4 Cal. 46; Sacramento v. Crocker, 16 Cal. 119.

persons, is a valid exercise of the taxing power; while an ordinance delegating to the city treasurer the power to fix the amount of license in each case as it arises would be invalid. The fact that property used in a particular calling is taxed as property ad valorem, or that the income received therefrom is taxed as income, does not interfere at all with the right to impose a license tax on the calling or pursuit." The Constitution of Georgia provides that "taxation on property shall be ad valorem only, and uniform on all species of property." A tax of one dollar on each and every horse or mule offered and sold within the city, by or belonging to a horse or mule driver, was held not a license tax, but a tax on property, and void, because not uniform. The sixth article of the same Constitution devotes to school purposes "a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the General Assembly is hereby authorized to assess." A tax was laid on the sale of whisky, brandy, &c., in quantities less than thirty gallons. This tax was held valid, although not ad valorem nor uniform. It was laid under article 6, which was a special grant of taxing power not limited as to the mode. If it was not intended to be ad valorem, there was no necessity of the special grant.*

In Virginia the law imposed a tax on commission merchants, tobacco auctioneers and storagers; each business was described and a specific license tax imposed on each. Holland took out a license as a storager and also as tobacco auctioneer. He received tobacco from the grower on consignment, stored it, sold it at auction, made advances to the owner, charged him storage, an auction fee and a commission on the amount of sales, independent of his charge as auctioneer, and accounted with the consignor for the balance. It was held that he was bound to take out license as a commission merchant also and pay the tax assessed thereon. An opera company is not liable to be taxed under an act imposing a tax on theaters. The license tax is not included under the head of a poll-tax. The license tax imposed by the federal government on avocations does not affect the right of the State to tax the same pursuits, or to modify, control, or prohibit them altogether. The license of the federal government is a mere receipt for taxes; it confers no authority to prosecute the pursuit; that

1 East St. Louis v. Wehrung, 46 Ill. 892.

2 Lunt's Case, 6 Greenl. (Me.) 412; Lewellen v. Lockhart, 21 Gratt. 570; State v. Stephens, 4 Texas, 137; Drexel v. Commonwealth, 46 Penn. St. 31.

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Kenny v. Harwell, 42 Ga. 416.

73 How. & McHen. 169.

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