City of Lynchburg v. N. & W. R. R. Co.

Hinton, J., delivered the opinion of the court. The sole question in this case is, whether the city of Lynch-burg has the power under its charter, to assess a railroad corporation with a license tax. By section 3, of chapter 8, of said charter, the council is given the power to tax all corporations located in the city, or having their principal office therein; and all real and personal property in the city not exempt by law from taxation. And it is admitted, that under the second of the above recited provisions, the city taxes all of the real and personal property of the defendant company within its limits. Section 5, of the same chapter, reads as follows: “ The council may impose a tax on merchants, commission merchants, auctioneers, manufacturers, traders, lawyers, physicians, dentists, brokers, keepers of ordinaries, hotel keepers, boardinghouse keepers, keepers of drinking and eating houses, keepers of livery stables, daguerrean artists of all kinds, agents of all kinds, (including the agents of insurance companies whose principal office is not located in the city), sellers of wines and other liquors, venders of quack medicines, public theatrical or other performances or shows, keepers of billiard tables, ten-pin alleys, pistol galleries, hawkers, pedlars, sample merchants, and upon any other persons or employment ichir-h it may deem proper, whether such person or employment he herein specially enumerated or not, and ichether any tax he imposed, thereon by the State or not" And, it is under the concluding words of this section, which we have italicized, that the right to impose the tax in question is claimed. The real inquiry of the court, therefore, is to as [247] certain the meaning of the legislature as expressed in these words. And, in the prosecution of this purpose, we must hear in mind the well settled rule that, every grant of the power of taxation to a municipal or other subordinate body must be strictly construed. Upon this point, a learned writer has said: “In the construction of any grant of the power to tax made by the State to one of its municipalities, the rule accepted by all the authorities is, that it should be with strictness. The reasonable presumption is held to he, that the State has granted in clear and unmistakable terms all it. has intended to grant: and whatsoever authority the municipal officers assume to exercise, they must he able to show a warrant for it in the words of the grant.” Cooley on Taxation, 209; and to the same effect arc the cases in this State. See City of Richmond v. Daniel, 14 Gratt. 387; Orange & Alexandria R. R. Co. v. Alexandria, 17 Gratt. 184: Virginia & Tennessee R. R. Co. v. Washington county, 30 Gratt. 474. Now it is undeniably true that, for civil purposes, corporations are deemed and taken as persons when the circumstances in which they are placed are identical with those of natural persons expressly included in the statute. Baltimore & Ohio R. R. Co. v. Gallahue’s adm’rs, 12 Gratt. 603; and perhaps, under our Code, chapter 15, section 13, page 195, which provides that the word person may extend and be applied to bodies politic and corporate as well as individuals, that the word “person” must be held to embrace, even in statutes which confer the power of taxation, artificial as well as living beings, unless there be something in the subject matter, object, words or frame of the act, indicating that such was not the purpose of the legislative mind. Western Union Tel. Co. v. Richmond city, 26 Gratt. 1; Miller's executors v. Commonwealth, 27 Gratt. 110. This, however, is not the ordinary sense in which this word is used, and it cannot be denied that in its usual and common acceptation it does not extend to corporations. It is equally true [248] that the word “employment” in its ordinary and natural acceptation does not extend to or include either a railroad corporation or its business. In the case of The City Council v. Lee, 3 Brev. R. 227, Nott, J., in discussing the question whether a tax “on all profits or income arising from the pursuit of any faculty, profession, occupation, trade or employment” included the salaries of public officers, said: “The word ‘employment’ is the only-word under which it is pretended that they can be included. I do not know,” says he, “that this word is anywhere used as a technical term. It is a common word, generally used in relation to the most common pursuits, and, therefore, ought to be received by this court as understood in common parlance;” and so we think it must be understood in this case. If, therefore, the words “persons” and “employment,” used in this statute, are to be taken according to their natural import, it will be at once seen that they cannot be held to comprehend a railroad corporation, which is neither a person nor an employment within the ordinary acceptation of those words. Nay, more, if we shall find no language in the statute indicating that these words were used with reference to a higher and different class of persons and employment, than those enumerated in the preceding special words, we must construe the words “persons” and “employment” as applicable to persons and employments ejimkni ijeneris with the enumerated classes: for the well established rule in the construction of statutes is, that where particular words are followed by genoi’al ones, the latter are to be held as applying to persons and things of the same kind Avitli those which precede; Potter’s Dwarris, 236; Avhieh means no more, as has been acutely observed by a learned judge, than this, that the law should be construed according to the apparent intention of the legislature, to be gathered from the language used, connected with the subject of legislation, so that its terms shall not be extended by implication beyond the legitimate scope or import of the words used. Wagner, J., in City of St. Louis v. Laughlin, 49 Mo. 563. [249] But it has been argued with great power and ability that these words, when taken, as they must be, in connection with the words which follow them, are broad enough to include railroad corporations, and plainly manifest an intention on the part of the legislature to exclude the application of the rule of ejtmhm r/mri.y from this statute. Such, however, does not seem to us, after a careful consideration of the terms of the statute, to be the case. For the words “which it may deem proper,” taken in the connection in which they are found, do not seem to be entitled to any special significance. They do indeed confer in express terms a discretion which the council would doubtless have had if they had been entirely omitted. But that discretion, far from enlarging and elevating the power of the council, in the matter of taxation, to subjects of a higher degree, really imports a discretion in the council to tax only such subjects analogous to the enumerated classes as the council may see fit to select. And whilst the obvious import of the words “whether such person or employment be herein specially enumerated or not, and whether any tax he imposed thereon by the State or not,” is to extend the power of the city to tax other persons and employments than the enumerated classes, regardless of whether they are taxed by the State or not, it cannot be said to necessarily convey the idea that these new taxable subjects shall be different in charac.er or higher in degree. After a careful examination of the act, we are unable to discover anything which clearly indicates an intention on the part of the legislature to confer upon this municipal council the power to tax railroad corporations under cover of these general words. "We must, therefore, hold, in accordance with the uniform current of authority, that the general words here used are restricted to such persons and employments as may ho analogous to those previously mentioned. Tn Sandiman v. Brench, 7 Barn. & Cres. 96, the words “other [250] person or persons” was held not to have been used in a sense large enough to include the Owner and driver of a stage-coach, In Casher v. Holmes, 2 Barn. & Adolp. 596, the words “all other metals,” were held not to include gold and silver, which are precious metals. In Rex v. Cleworth, 4 B. & S. (116 E. C. L.) 927, a farmer Avas held not to be Avithin the statute 29 Car. 2, chapter 7, section 1, AA'hich enacts that no tradesman, artificer, AA’orkmau, laborer, or other person AA’hatsóever, shall do or exercise any Avorldly labor, business or Avork of their ordinary callings, upon the Lord’s day or any part thereof,” &c. In Butler’s appeal, 73 Penn. St. R. 452, the clause “also, all other places of business or amusement conducted for profit,” Avere held not broad enough to embrace bankers, broAvers or druggists. And in the City of St. Louis v. Laughlin, 49 Mo. 564, the sweeping words “ all other business, trades, avocations or professions AA'liatever,” Avere held not to include persons not- of the same ¡¡meric character or (lass Avith the specifically enumerated classes, and hence the city of St. Louis had no poAver to pass an ordinance levying a tax on attorneys at law. See also, Broom’s Legal Maxims, 7 Ed. 651. The judgment of the corporation court of the city of Lynch-burg is right and must be affirmed. JuimAIENT AFFIRMED.