An assessment made by a statute of Virginia a condition
precedent to obtaining a license for pursuing a business or
profession within the state is a tax, debt, or demand within the
meaning of the act of that State of March 30,
Page 116 U. S. 573
1871, making coupons on the bonds of the state receivable for
"taxes, debts, dues and demands due the state."
The "separate revenue license" which persons authorized and
licensed to practice as attorneys at law in the courts of Virginia
are required by the statutes of that state to obtain before
practicing, is a tax laid for revenue, and not an exaction for
purposes of regulation.
When a statute of a state imposes license taxes for purposes of
revenue upon persons pursuing lawful occupations and professions
within the state, and a state officer charged with the duty of
issuing licenses thereunder, acting in obedience to a statute of
the state which is in conflict with the Constitution of the United
States, refuses to issue such a license to a person who has duly
tendered the amount required by law to be paid for it, the person
tendering the payment, if otherwise qualified to pursue the
occupation, is not required to proceed by mandamus to compel the
issue of the license and to await the result of those proceedings
before entering upon the pursuit or occupation.
After lawful tender to the proper state officer of the requisite
amount of coupons (receivable by the terms of the act of the State
of Virginia of March 30, 1871, in payment of taxes, debts, dues,
and demands due the state) for a "separate revenue license" by a
person otherwise duly authorized and licensed to practice as an
attorney at law, and after refusal by that officer to receive the
same or to issue the "separate revenue license," the person so
making the tender may at once enter upon the practice of his
profession, and any law of the state subjecting him to criminal
proceedings therefor is in conflict with the Constitution of the
United States.
The plaintiff in error was convicted in the Hustings Court of
the City of Richmond of the misdemeanor under the laws of Virginia
of practicing law as a lawyer without having first obtained a
license so to do from the commissioner of the revenue.
To the information the plaintiff in error filed the following
plea:
"And for a plea in this behalf, the said William L. Royall comes
and says that he is an attorney at law, duly licensed and qualified
to practice law in the courts of the State of Virginia, under the
laws of said state, and that he has been such for more than five
years; that on the 1st day of May, 1884, he paid to Samuel C.
Greenhow, who is the Treasurer of the City of Richmond, Virginia,
twenty-five dollars and seventy-five cents, and received from him
and the commissioner of the revenue a revenue license as a lawyer
for one year from that date; that he has not practiced his
profession as a lawyer in
Page 116 U. S. 574
the courts of said state between the 1st day of May, 1885, and
the 11th day of July, 1885; that on the 11th day of July, 1885, he
tendered to Seaton G. Tinsley, who is the deputy for Samuel C.
Greenhow, one coupon for fifteen dollars, and ten dollars in United
States Treasury notes, in payment of his license tax as an attorney
at law for the ensuing year, and seventy-five cents in silver coin
for the fee of the commissioner of the revenue; that said coupon
was cut from a bond issued by the State of Virginia under the
provisions of an Act of the General Assembly approved March 30,
1871, entitled 'An act to provide for the funding and payment of
the public debt;' that it was overdue and past maturity, and bore
upon its face the contract of the State of Virginia that it should
be received in payment of all taxes, debts, demanded of said due to
the said state; that when he made said tender he demanded of said
Greenhow a certificate in writing, stating that he had deposited
with him said coupon and money, but the said Greenhow, by his said
deputy, refused to receive said coupon and money for any purpose
whatever, and refused to give him said certificate or any other
certificate; that he refused to receive said coupon and money,
because an Act of the General Assembly of the State of Virginia
approved February 7, 1884, forbade him to receive said license tax
in coupons, and because the 112th section of an Act of the General
Assembly of said state approved March 15, 1884, provides that all
license taxes shall be paid in current money of the United States,
and not in coupons; that thereupon the defendant made the affidavit
hereto attached, marked 'A,' and presented it to R. B. Munford, who
is the Commissioner of the Revenue for the City of Richmond, and
demanded of him a revenue license, as an attorney at law, and at
the same time he presented to the said Munford the paper hereto
attached, marked 'B,' and at the same time he offered to pay the
said Munford any and all fees that he was entitled to receive
before issuing said license, but the said Munford refused to issue
to defendant a license as an attorney at law; that thereafter
defendant accepted the employment of a client who was being
prosecuted for a misdemeanor in this honorable court, and assisted
in his defense, and thus practiced his profession as a
Page 116 U. S. 575
lawyer without a revenue license, but said professional act was
done after defendant had made the efforts hereinbefore described to
obtain a revenue license, and this he is ready to verify."
The affidavit referred to in the plea set forth the facts of the
tender, and the paper marked "B" was the usual form of an
application for a revenue license.
To this plea the commonwealth filed a general demurrer, which
was sustained by the court on the ground that the defendant had no
right to practice his profession as an attorney at law after the
tender of the coupons and money, as described in the plea, without
first having obtained a license therefor. The defendant then
pleaded not guilty, and a trial was had, resulting in a verdict
finding the defendant guilty and assessing his fine at $30.
During the progress of the trial a bill of exceptions was duly
taken, as follows:
"Be it remembered that on the trial of this cause the same was
submitted to the jury upon the following agreed statement of facts,
to-wit:"
" It is admitted as evidence in the case of the
Commonwealth
v. Royall that said Royall did not practice his profession as
attorney at law between May 1, 1885, and July 11, 1885, and that on
the latter day, he tendered to the Treasurer of the City of
Richmond a coupon issued by the State of Virginia under the
provisions of the Act of March 30, 1871, for the sum of $15, and
$10.75 lawful money of the United States, in payment of his license
tax for the ensuing year, and demanded his license of the proper
officer; that said coupon was receivable in payment of all taxes,
debts, and demands due said state; that said tender was refused;
that thereupon the defendant practiced his profession as an
attorney after said tender, but not before, without revenue
license, but the said defendant has for more than five years been
duly licensed to practice law under the laws of Virginia. It is
further agreed that the license tax on the defendant as an attorney
at law is twenty-five dollars ($25)."
"Thereupon the defendant moved the court to instruct the jury as
follows: "
Page 116 U. S. 576
" If the jury believe from the evidence that the defendant did
not practice his profession of attorney at law between the 1st day
of May, 1885, and the 11th day of July, 1885, and that on the 11th
day of July, 1885, he tendered to the Treasurer of the City of
Richmond a coupon for $15, issued by the State of Virginia under
the provisions of the Act of Assembly approved March 30, 1871,
which coupon, by provisions of said act, was receivable for all
taxes, debts, and demands due said state, and ten dollars and
seventy-five cents in lawful money of the United States, in payment
of his license tax, which said tax is $25, and 75 cents
commissioner's fee, for the then ensuing year, and that said tender
was refused by said treasurer, then they are instructed they must
find the defendant not guilty."
"Which instructions the court refused to give. To the court's
action in refusing which instructions the defendant excepts and
tenders this, his first bill of exceptions, and prays that this his
bill of exceptions be signed, sealed, and made a part of the
record, which is accordingly done."
Judgment was entered on the verdict for the payment of the fine,
and execution awarded. The record contains the following:
"And at the instance of the defendant, the court certifies that
in the record and at the trial of this cause there was drawn in
question the validity of § 86 of chapter 34 of the Code of Virginia
of 1873, and an Act of the General Assembly of said state approved
February 7, 1884, entitled 'An act to regulate the granting of
licenses for the exercise of any privilege,' and the 112th section
of an Act of the General Assembly of said state approved March 15,
1884, entitled 'An act to provide for the assessment of taxes on
persons, property, and incomes,' &c., upon the ground that so
far as they undertake to inflict punishment upon the defendant for
practicing his profession as an attorney at law without license
after having tendered the state's tax receivable coupons in payment
of his license tax, they are repugnant to Section 10 of Article I
of the Constitution of the United States."
"But the court, being of opinion that the defendant had no right
to practice the profession of an attorney at law without
Page 116 U. S. 577
a license after he had tendered payment of his license tax in
coupons, decided and gave judgment that said section of said Code
and said acts of the General Assembly are not repugnant to Section
10 of Article I of the Constitution of the United States in that
behalf, and it decided and gave judgment in favor of the validity
of said section of said code and said act of assembly."
The Supreme Court of Appeals denied a petition praying for an
allowance of a writ of error, and to reverse that judgment this
writ of error is prosecuted.
MR. JUSTICE MATTHEWS delivered the opinion of the Court. After
stating the facts in the language reported above, he continued:
The Virginia Code of 1873, Title 12, § 60, provides that "No
person shall, without a license authorized by law, practice as an
attorney," and § 61 that
"Every attorney at law, in addition to being licensed, sworn,
and admitted to prosecute or defend actions or other proceedings in
the courts of this commonwealth on the retainer of clients, shall
obtain a revenue license, and no person shall act as attorney at
law or practice law in the courts of this commonwealth without a
separate revenue license."
This revenue license, it will be observed, is different from and
in addition to the license to practice law, given only to such as,
on examination as to their character and acquirements, are found to
be duly qualified therefor. The amount of this revenue license was
fixed by an Act of March 15, 1884 at $15 for those who had been
licensed to practice for less than five years, and at $25 for all
others. Section 86 of chapter 34 of the Virginia Code of 1873
provides that
Page 116 U. S. 578
"Any person who shall engage in or exercise any business,
employment, or profession, without a license, if a license be
required by law, or shall in any manner violate the license or
revenue laws of the state, if no specific fine is imposed for such
violation, shall pay a fine of not less than thirty dollars nor
more than one thousand dollars."
The Act of February 7, 1884, Acts of Virginia, 1883-1884, p.
120, enacts that no application for a license to do any business,
or to follow any profession, trade, or calling in that state shall
be made, and, if made, shall not be considered except upon
compliance with its provisions, which, among other things, require
that the amount of the assessment prescribed by law as a condition
precedent shall accompany the application, in gold or silver coin,
United States Treasury notes, or national bank notes.
Section 112 of the Act of March 15, 1884, Acts of Virginia,
1883-1884, 603, also provides that
"Applications for licenses shall be made, and all taxes assessed
by chapter one of this act shall be paid in lawful money of the
United States, in the mode and subject to the provisions of an act
to regulate the granting of licenses, approved the seventh day of
February, eighteen hundred and eighty-four,"
&c.
By the terms of the Act of March 30, 1871, the coupons tendered
in this case were made receivable for "all taxes, debts, dues, and
demands due the state," and this stipulation, as has been
repeatedly decided by the Court of Appeals of Virginia and by this
Court, constituted a contract between the coupon holder and the
State of Virginia, the obligation of which the state is forbidden
to impair by the Constitution of the United States, and any law of
the state which would have that effect if enforced is thereby
annulled and made void. To this point are the cases of
Antoni
v. Wright, 22 Grattan 833;
Wise v. Rogers, 24 Grattan
169, and
Clarke v. Tyler, 30 Grattan 134, in the Court of
Appeals of Virginia, and in this Court the cases of
Hartman v.
Greenhow, 102 U. S. 672;
Antoni v. Greenhow, 107 U. S. 769, and
Poindexter v. Greenhow, 114 U. S. 270. In
Hartman v. Greenhow, ubi supra, it was shown that the
consideration for this stipulation was a surrender by
Page 116 U. S. 579
its creditors of one-third of their claim against the state. In
Antoni v. Greenhow, 107 U. S. 769, it
was said: "The right of the coupon holder is to have his coupon
received for taxes when offered;" and "any act of the state which
forbids the receipt of these coupons for taxes is a violation of
the state which and void as against coupon holders." P.
107 U. S. 771.
In
Poindexter v. Greenhow, 114 U.
S. 270,
114 U. S. 281,
no point in which was reopened in the argument of this cause, it
was said:
"It is well settled by many decisions of this Court that for the
purpose of affecting proceedings to enforce the payment of taxes, a
lawful tender of payment is equivalent to actual payment, either
being sufficient to deprive the collecting officer of all authority
for further action, and making every subsequent step illegal and
void,"
a proposition founded on the authority of
Woodruff
v. Trapnall, 10 How. 190;
United States v.
Lee, 106 U. S. 196;
Bennett v.
Hunter, 9 Wall. 326;
Taxey v.
Irwin, 18 Wall. 549;
Atwood v. Weems,
99 U. S. 183, and
Hills v. Exchange Bank, 105 U. S. 319.
That charges, or, as they are called in the statutes,
assessments, made by law as conditions precedent to obtaining
licenses for pursuing a business or profession are included within
the meaning of the words "taxes, debts, dues, and demands due the
state," as used in the Act of March 30, 1871, does not seem to
admit of reasonable doubt. In
Clarke v. Tyler, 30 Grattan
134, it was adjudged by the Court of Appeals of Virginia that a
fine imposed for a violation of law could be discharged under this
provision in coupons in lieu of money, so that, upon the authority
of that case, the very fine imposed by the Hustings Court of
Richmond upon the plaintiff in error for practicing law without a
revenue license may lawfully be paid and discharged in the very
coupons which were tendered in payment of the license itself and
refused. Surely such an anomaly cannot be justified or admitted.
The payment required as a preliminary to the license is in the
nature and form of a tax, and is a due to the state, which it may
demand and exact from every one of its citizens who either will or
must follow some business avocation within its limits to the
pursuit of which the assessment is made a condition precedent. It
is an occupation
Page 116 U. S. 580
tax, for which the license is merely a receipt, and not an
authority, except in that sense, because it is laid and collected
as revenue, and not merely as incident to the general police power
of the state, which, under certain circumstances and conditions,
regulates certain employments with a view to the public health,
comfort, and convenience. In the latter class of cases, the
exactions may be either fees or fines, as they are proportioned to
the expense of regulation, or laid as a burden upon and a
discouragement to the business, and not taxes which are levied for
the purpose of raising public revenue by means of a contribution
either from the person or the property or the occupation of all
citizens in like circumstances. It was therefore in the character
of a tax that the payments were required and made for licenses
issued under the internal revenue acts of the United States.
McGuire v.
Commonwealth, 3 Wall. 387. Speaking of them in the
License Tax
Cases, 5 Wall. 462,
72 U. S. 471,
Chief Justice Chase said: "The granting of a license, therefore,
must be regarded as nothing more than a mere form of imposing a
tax," etc., and that
"This construction is warranted by the practice of the
government from its organization. . . . They were regarded merely
as a convenient mode of imposing taxes on several descriptions of
business, and of ascertaining the parties from whom such taxes were
to be collected. . . . But, as we have already said, these licenses
give no authority. They are mere receipts for taxes."
The license under the laws of Virginia, required from the
plaintiff in error, cannot be distinguished from those of the class
just referred to, issued under the internal revenue laws of the
United States.
We are referred to the case of
Sights v. Yarnalls, 12
Grattan 292, as defining a license under the laws of Virginia in a
different sense. We think, on the contrary, that it is not only
consistent with the view we have taken, but strongly in
corroboration of it. In that case, the amount assessed as a
condition of the license is expressly designated to be a tax. It
was an exaction made by the municipal government of the City of
Wheeling, under a law which expressly authorized it, in reference
to houses of entertainment, to grant or refuse licenses, and the
case was one of that class. The language of the city charter
Page 116 U. S. 581
was:
"They shall further have authority to regulate the manner in
which such houses or places shall be kept, and to levy and collect
taxes thereon in addition to any tax which is or shall be payable
on the same to the state."
The law of Virginia, however, on this point was definitely
settled in accordance with the view we have here taken in the case
of
Ould v. City of Richmond, 23 Grattan 464, followed by
Humphreys v. City of Norfolk, 25 Grattan 97, and
Western Union Telegraph Co. v. City of Richmond, 26
Grattan 1.
In the case of
Humphreys v. City of Norfolk, ubi supra,
the Supreme Court of Appeals of Virginia, referring to the previous
case of
Ould v. City of Richmond, said:
"The objection was made in that case that a power to license
involves in its exercise the power to prohibit without such
license, and that such power vested in a municipal corporation is
incompatible with the rights of attorneys conferred by their
general license to practice in any and every part of the state.
This objection did not prevail. Judge Anderson, upon this point,
speaking for the entire court, conceded that the city authorities
could not prohibit attorneys at law already licensed from
practicing their profession within the city limits. The exercise of
the vocation was, however, a civil right and privilege, to which
are attached valuable immunities and pecuniary advantages, and is a
fair subject of taxation by the state and by municipal
corporations. The power to impose a license tax upon the profession
is included in the general power of taxation given by the
sixty-ninth section of the charter, and is not taken away by
subsequent limitations. . . . The principles settled by that
case,"
continued the court,
"are decisive of this. In neither case is the attempt made to
prohibit the exercise of the business or vocation. The license
required by the corporation is merely a mode of assessing the tax.
If it be reasonable and just, it matters but little by what name it
is called. The power to impose fines and penalties for a failure to
pay the tax required is not only an incident to the power of
taxation, but is expressly conferred by statute."
That the party complying with the statutory conditions is
entitled as of right to the license is conclusive that the
payment
Page 116 U. S. 582
is a tax laid for revenue, and not an exaction for purposes of
regulation.
Mayor v. Second Avenue Railroad Co., 32 N.Y.
261;
State v. Hoboken, 33 N.J.L. 280; 2 Dillon on
Municipal Corporations 766,c. XIX, § 768. The occupation, which is
the subject of the license, is lawful in itself, and is only
prohibited for the purpose of the license -- that is to say,
prohibited in order to compel the taking out a license, and the
license is required only as a convenient method of assessing and
collecting the tax. Cooley on Taxation 407. Such a license fee was
held to be tax by this Court in the cases of
Brown v.
Maryland, 12 Wheat. 419;
Ward v.
Maryland, 12 Wall. 418, and
Wilton v.
Missouri, 91 U. S. 295.
We think it entirely clear, both from the nature of the case and
upon authority, that the payments demandable by the state for the
license applied for by the plaintiff in error are taxes within the
meaning of the Act of March 30, 1871, in discharge of which coupons
were receivable by its terms, and that the plaintiff in error must
be regarded, after making the tender alleged, in the same situation
in law as if he had tendered gold or silver coin or other lawful
money of the United States.
Admitting this, it is still contended on behalf of the
commonwealth that it was unlawful for the plaintiff in error to
practice his profession without a license, and that his remedy was
against the officers to compel them to issue it. It is doubtless
true as a general rule that where the officer whose duty it is to
issue a license refuses to do so, and that duty is merely
ministerial, and the applicant has complied with all the conditions
that entitle him to it, the remedy by mandamus would be appropriate
to compel the officer to issue it. That rule would apply to cases
where the refusal of the officer was willful and contrary to the
statute under which he was commissioned to act. But here the case
is different. The action of the officer is based on the authority
of an act of the General Assembly of the state, which, although it
may be null and void, because unconstitutional as against the
applicant, gives the color of official character to the conduct of
the officer in his refusal, and although at the election of the
aggrieved party, the officer might be subjected to the compulsory
process
Page 116 U. S. 583
of mandamus to compel the performance of an official duty,
nevertheless the applicant, who has done everything on his part
required by the law, cannot be regarded as violating the law if,
without the formality of a license wrongfully withheld from him, he
pursues the business of his calling, which is not unlawful in
itself and which, under the circumstances, he has a constitutional
right to prosecute. As to the plaintiff in error, the act of the
General Assembly of the State of Virginia forbidding payment of his
license tax in its coupons, receivable for that tax by a contract
protected by the Constitution of the United States, is
unconstitutional, and its unconstitutionality infects and nullifies
the antecedent legislation of the state, of which it becomes a
part, when applied, as in this case, to enforce an unconstitutional
enactment against a party, not only without fault, but seeking
merely to exercise a right secured to him by the Constitution. It
is no answer to the objection of unconstitutionality, as was said
in
Poindexter v. Greenhow, ubi supra,
"that the statute whose application in the particular case is
sought to be restrained, is not void on its face, but is complained
of only because its operation in the particular instance works a
violation of a constitutional right, for the cases are numerous
where the tax laws of a state, which in their general and proper
application are perfectly valid, have been held to become void in
particular cases, either as unconstitutional regulations of
commerce, or as violations of contracts prohibited by the
Constitution, or because in some other way they operate to deprive
the party complaining of a right secured to him by the Constitution
of the United States."
In the present case, the plaintiff in error has been prevented
from obtaining a license to practice his profession, in violation
of his rights under the Constitution of the United States. To
punish him for practicing it without a license thus withheld is
equally a denial of his rights under the Constitution of the United
States, and the law under the authority of which this is attempted
must on that account and in his case be regarded as null and
void.
As the sum demanded for the license is a tax, the provision for
the punishment of one who pursues his profession without a
Page 116 U. S. 584
license is a part of the revenue system of the state, and is a
means merely of enforcing payment of the tax itself, or of a
penalty for not paying it. It is legally equivalent to a civil
action of debt upon the statute, and its substantial character is
not changed by calling the default a misdemeanor, and providing for
its prosecution by information. The present case, therefore, stands
precisely, so far as the constitutional questions arising in it are
affected, as if it were a civil action in which the Commonwealth of
Virginia was plaintiff, seeking to recover the amount due on
account of the tax and penalty. In that aspect, no one would doubt
that it would be a perfect defense that the defendant had
previously paid the demand, or, what we have held to be legally
equivalent, had tendered the amount in the coupons of the state,
receivable in payment by an irrepealable contract, but which the
appointed authorities of the state had wrongfully refused to
receive. Such, as we conceive it, is the present case. The State of
Virginia has sued the defendant for the recovery of a tax which he
offered to pay, when it became due, in its own coupons, which by
the law of its contract were receivable in satisfaction of the
demand. Certainly the state cannot be permitted to recover, against
its own contract, from the other contracting party, as to whom the
only default alleged is that he has performed the contract on his
part.
The judgments of the Supreme Court of appeals of Virginia
and of the Hustings Court of the City of Richmond, Virginia, are
accordingly reversed, and the cause is remanded to said hustings
court with instructions to take further proceedings therein in
accordance with law and in conformity with this opinion.
