769 Bk. 27, L. ed. 468], and Poindexter v. Green- | acter of a tax that the payments were required
hoe (ante, 185]. In Hartman v. Greenhow, and made for licenses issued under the Internal
supra, it was shown that the consideration Revenue Acts of the United States. McGuire v.
for this stipulation was a surrender by its cred- Commonweaith, 3 Wall. 387 [70 U. S. bk. 18,
itors of one third of their claim against the L. ed. 165]. Speaking of them in the License
State. In Antoni v. Greenhow, [supra] it was Tax Cases, 5 Wall. 462, 471 [72 U. S. bk. 18,
said: "The right of the coupon holder is to L. ed. 497, 500], Chief Justice Chase said: "The
have his coupon received for taxes when ef- granting of a license, therefore, must be re-
fered;" and "Any Act of the State which for- garded as nothing more than a mere form of im-
bids the receipt of these coupons for taxes is a posing a tax," etc., and that "this construction is
violation of the contract and void as against warranted by the practice of the government
coupon holders." In Poindexter v. Greenhow from its organization. *** They were re-
[a], no point in which was reopened in the garded merely as a convenient mode of impos
argument of this cause, it was said: "It is well ing taxes on several descriptions of business,
settled by many decisions of this court that for and of ascertaining the parties from whom such
the purpose of affecting proceedings to enforce taxes were to be collected.
*** But as we
the payment of taxes, a lawful tender of pay- have already said, these licenses give no au-
ment is equivalent to actual payment, either thority. They are mere receipts for taxes."
being sufficient to deprive the collecting officer The license under the laws of Virginia, re-
of all authority for further action and making quired from the plaintiff in error, cannot be
every subsequent step illegal and void;” a propo- distinguished from those of the class just re-
sition founded upon the authority of Woodruff ferred to, issued under the internal revenue
Traphall, 10 How. 190 [51 U. S. bk. 13, L. laws of the United States.
ed 383]; U. S. v. Lee, 106 U. S. 196 [Bk. 27,
Led. 171]; Bennett v. Hunter, 9 Wall. 326 [76
U. S. bk. 19, L. ed. 672]; Tracey v. Irwin, 18
Wall. 549 [85 U. S. bk. 21, L. ed. 786; Atwood
Weems, 99 U. S. 183 [Bk. 25, L. ed. 471],
and Hills v. Exchange Bank, 105 Ú. S. 319 [BK.
26, L. ed. 1052].

We are referred to the case of Sights v. Yarnalls, 12 Gratt. 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 was: "They [581] 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."

That charges, or, as they are called in the at-
res, assessments made by law as conditions pre-
edent 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 reason-
able doubt. In Clarke v. Tyler, 30 Gratt. 134, it
was adjudged by the Court of Appeals of Vir-
ginia that a fine imposed for a violation of law
would be discharged under this provision in
cupons in lieu of money. So that upon the
thority of that case the very fine imposed by The law of Virginia, however, on this point
the Hustings Court of Richmond upon the was definitely settled in accordance with the
paintiff in error for practicing law without a view we have here taken, in the case of Ould
evenue license may lawfully be paid and dis- v. Richmond, 23 Gratt. 464, followed by Hum-
red in the very coupons which were ten-phreys v. Norfolk, 25 Gratt. 97, and Western
dered in payment of the license itself and re- Union Telegraph Co. v. City of Richmond, 26
Lased. Surely such an anomaly cannot be Gratt. 1.
ted or admitted. The payment required
In the case of Humphreys v. Norfolk, supra,
a preliminary to the license is in the nature the Supreme Court of Appeals of Virginia, re-
and form of a tax, and is a due to the State ferring to the previous case of Ould v. Rich-
which it may demand and exact from every mond, said: "The objection was made in that
e of its citizens who either will or must fol-case that a power to license involves in its ex-
some business avocation within its limits,
to the pursuit of which the assessment is made
realition precedent. It is an occupation tax,
for which the license is merely a receipt and not
suthority, except in that sense, because it is
and and collected as revenue, and not merely as
sent to the general police power of the
Mate which, under certain circumstances and
conditions, regulates certain employments with
new to the public health, comfort and conve-
tetce. In the latter class of cases the exactions
tay be either fees or fines, as they are pro-
pped to the expense of regulation or laid as
Arden upon and a discouragement to the busi-
and bot taxes which are levied for the
Pose of raising public revenue by means of
tribution either from the person or the
operty or the occupation of all citizens in like
stances. It was, therefore, in the char-

ercise the power to prohibit without such li
cense, and that such power vested in a muni-
cipal corporation is incompatible with the
rights of attorneys conferred by their gen-
eral license to practice in any and every part
of the State. This objection did not pre-
vail. Judge Anderson, upon this point, speak-
ing 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 exer-
cise 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

[582]

[583]

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 assess-
ing 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 ex-
pressly conferred by statute."

That the party complying with the statutory
conditions is entitled as of right to the license,
is conclusive that the payment is a tax laid for
revenue and not an exaction for purposes of
regulation. Mayor, etc. v. Second Ave. R. R.
Co. 32 N. Y. 261; State v. Hoboken, 33 N. J.
L. 280; 2 Dill. Mun. Corp. 766, chap. 19, § 768.
The occupation, which is the subject of the
icense, is lawful in itself, and is only pro-
hibited 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 collect-
ing the tax. Cooley, Tax. 407. Such a license
fee was held to be a tax by this court in the
cases of Brown v. Md. 12 Wheat. 419 [25 U. S.
bk. 6, L. ed. 677]; Ward v. Md. 12 Wall. 418
[79 U.S. bk. 20, L. ed. 449], and Welton v. Mo.
91 U. S. 275 [Bk. 23, L. ed. 347]. We think
it entirely clear, both from the nature of the
case and upon authority, that the payments de-
mandable 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 al-
leged, in the same situation in law as if he had
tendered gold or silver coin or other lawful
money of the United States.

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 constitutionality 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, 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, Admitting this, it is still contended, the provision for the punishment of one who purhalf of the Commonwealth, that it was unlaw-sues his profession without a license is a part of ful for the plaintiff in error to practice his pro- the revenue system of the State, and is a means fession without a license, and that his remedy merely of enforcing payment of the tax itself,or was against the officers to compel them to is of a penalty for not paying it. It is legally equivsue it. It is doubtless true, as a general rule, alent to a civil action of debt upon the statute, and that where the officer whose duty it is to issue its substantial character is not changed by calla license, refuses to do so, and that duty is ing the default a misdemeanor, and providing merely ministerial, and the applicant has com- for its prosecution by information. The present plied with all the conditions that entitle him case, therefore, stands precisely, so far as the to it, the remedy by mandamus would be ap- constitutional questions arising in it are affectpropriate to compel the officer to issue it. That ed, as if it were a civil action, in which the rule would apply to cases where the refusal of Commonwealth of Virginia was plaintiff, seekthe officer was willful and contrary to the stating to recover the amount due on account of ute under which he was commissioned to act. the tax and penalty. In that aspect no one But here the case is different. The action of would doubt that it would be a perfect defense the officer is based on the authority of an Act that the defendant had previously paid the deof the General Assembly of the State which, mand, or, what we have held to be legally although it may be null and void because un- equivalent, had tendered the amount in the constitutional, as against the applicant, gives coupons of the State, receivable in payment by the color of official character to the conduct of an irrepealable contract, but which the appointthe officer in his refusal; and, although at the ed authorities of the State had wrongfully reelection of the aggrieved party the officer might fused to receive. Such, as we conceive it, is be subjected to the compulsory process of man- the present case. The State of Virginia has damus to compel the performance of an official sued the defendant for the recovery of a tax duty, nevertheless the applicant, who has done which he offered to pay, when it became due, everything on his part required by the law, in its own coupons, which by the law of its cannot be regarded as violating the law if, with contract were receivable in satisfaction of the out the formality of a license wrongfully with- demand. Certainly the State cannot be perheld from him, he pursues the business of his mitted to recover against its own contract from calling, which is not unlawful in itself and the other contracting party, as to whom the

1895.

SANDS V. EDMUNDS.

with said lawful money for the purpose of only default alleged is that he has performed | said Treasurer should receive said coupon along the contract on his part. identification and verification, in manner and form as required by an Act of the General Assembly of the State of Virginia, approved January 14, 1882, entitled 'An Act to Prevent Fraud upon the Commonwealth and Holders of Her Securities in the Collection of Her Reve

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. True copy. Test:

nues.'

"That the said Treasurer received said lawJames H. McKenney, Clerk, Sup. Court, U. S. ful money tendered by your petitioner, and

E. G. EDMUNDS, Treasurer of the COUNTY
OF FAUQIER, VIRGINIA.

(See 8. C. Reporter's ed. 585-587.)

Constitutional law-Virginia lawyer has right to pay license tax in state coupons-manda

A practicing lawyer in Virginia has the right to pay his license tax in coupons of certain bonds issued by the State; and the proper officer may be compelled by mandamus to receive such coupons tendered to him for verification under the Act of January 4, 1882.

[No. 1009.]

Argued Jan. 7, 8, 1886. Decided Feb. 1, 1886.

ERROR to the Supreme Court of Appeals of the State of Virginia.

Statement of the case by Mr. Justice Matthews:

The plaintiff in error filed in the Circuit Court of Fauquier County a petition for a mandamus against the Treasurer of that County, as follows:

"The petition of Wm. H. Sands respectfully represents that he is an attorney at law, regulary and duly licensed to practice law in the courts of the State of Virginia, according to

the laws of said State.

gave him the certificate provided for in said Act
of February 7, 1884, but he refused to receive
said coupon as demanded by your petitioner,
and he refused to receive it for any purpose
whatever. Your petitioner claims that he had
coupon and deliver the same to the judge of
the right to have said Treasurer receive said
the county court of Fauquier; and that it was
your petitioner's right to prove said coupon be-
fore a jury in said court and thereupon to have
his said money returned to him; and that said
and injury when he refused to receive said
Treasurer did your petitioner a great wrong
coupon.

"That he refused to receive same because
said Act of February 7, 1884, requires all
license taxes to be paid in money only and not
Act of the General Assembly of Virginia, ap-
in coupons, and because the 112th section of an
proved March 15, 1884, entitled 'An Act to
Provide for the Assessment of Taxes on Per-
sons, Property, Incomes,' etc. requires all license
taxes to be paid in money only and not in cou-
pons.

"That both of said Acts in this particular Constitution of the United States, and therefore are repugnant to section 10 of article 1 of the null and void. That your petitioner has not "Your petitioner therefore prays that a manbeen licensed to practice law solong as five years. damus nisi may be issued commanding the said E. G. Edmunds, Treasurer aforesaid, to show cause why a peremptory mandamus shall not issue commanding him to receive said coupon, for identification and verification, according to and deliver it to the judge of the county court the terms and provisions of said Act of Janu

"

The prayer for the writ was denied by the Circuit Court of Fauquier County, and on application to the Supreme Court of Appeals of Virginia that judgment was affirmed by a refusal to allow an appeal. To reverse that judgment this writ of error is prosecuted.

"That on the 8th day of September, 1885, be tendered to E. G. Edmunds, who is the Treas-ary 14, 1882.' urer of the County of Fauquier, and the officer whose duty it is to collect all license taxes due ad State in said County, in payment of his ense tax as an attorney at law for the ensuEng year, $15 in lawful money of the United States and seventy-five cents in like money for the commission of the revenue's fee, in compance with the provisions of the Acts of Asmbly, approved February 7, 1884, entitled An Act to Regulate the Granting of Licenses for the Exercise of Any Privilege.'

"That, at the same time, he tendered to the mid Treasurer a certain coupon for $15, which coupon was cut from a bond issued by the Male of Virginia under the provisions of an Act of her General Assembly, approved March 1971, entitled An Act to Provide for the Funding and Payment of the Public Debt.' "That said coupon was over due and past sturity, and bore upon its face the contract of the State of Virginia that it should be received is payment of all taxes, debts and demands due kid State.

"That at the same time he demanded the

Messrs. Wm. L. Royall and D. H. Chamberlain, for plaintiff in error.

Messrs. R. A. Ayres, Atty-Gen. of Virginia, Walter R. Staples and F. 8. Blair, for defendant in error.

[587]

Mr. Justice Matthews delivered the opin- [587] ion of the court:

The right of the plaintiff in error to pay his for taxes, as described in his petition, is affirmed license tax as a lawyer in coupons, receivable by the opinion and judgment in the case of Royall v. Va., just decided [ante 785]. His remedy, to have them received for verification license, is secured to him by the terms of the and to recover back the money paid for his Ast of January 4, 1882, which, for such pur

739

ANN

[599]

[599]

[600]

poses, was upheld by this court as a valid en- | Woolfolk the sum of $2,572.10, this day bor-
actment in Antoni v. Greenhow, 107 U. S. 769
[Bk. 27, L. ed. 468].

On the authority of these decisions the judg-
ments of the Supreme Court of Appeals of
Virginia and of the Circuit Court of Fauquier
County, Virginia, are reversed, and the cause
is remanded to said Circuit Court, with instruc-
tions to take further proceedings according to
law and in conformity with this opinion.
And it is so ordered.
True copy. Test:

rowed; now, therefore, the said Woolfolk does hereby agree that if he shall collect any of the above amounts, or shall from any resour.es whatever of the Park Ditch Company receive any other sums, after deducting all costs, charges and expenses, to apply the same in payment of said note, and also another note executed to R. S. Hale for taxes, amounting to between six and seven hundred dollars, until said notes shall be fully paid, said payments to be made by the said Woolfolk after his return from

James H. McKenney, Clerk, Sup. Court, U. 8. the East next spring and as soon thereafter as

Action for deceit damage must have been sus borrowing the money and executing the note

1885.

MING V. WOOLFOLK.

consideration therefor; denied that he had stated | have paid the money whether the Park Ditch Company had pledged its assets for their indemnity or not, and the borrowing of the money subjected them to no loss, but was greatly to their advantage.

to the plaintiffs that the Park Ditch Company had passed the resolution mentioned in the petition; denied that on May 1, 1875, or at any other time during that year, he took possession of the Park Ditch or the control or management of the Park Ditch Company; denied that he ever collected any sum whatever on the Chessman note or the Poznainsky claim, or ever received at any time after the execution of said contract, from sales of water or any other resources of the Park Ditch Company the sum of $3,500, or any other sum, after deducting costs, charges and expenses. Upon the issues thus raised the case was tried.

After the plaintiffs had introduced their evidence and rested, the defendant moved the court for nonsuit. The court granted the motion, and rendered judgment for the defendant for costs. The plaintiffs thereupon took the case by appeal to the Supreme Court of the Territory of Montana, which affirmed the judgment of the District Court. By the present writ of error the plaintiffs seek the reversal of the judgment of the Supreme Court of Montana.

Messrs. M. F. Morris, and L. M. Saunders, for plaintiffs in error.

Mr. Alexander M. Woolfolk, in perwham, for defendant in error.

Mr. Justice Woods delivered the opinion of

the court:

It appears from the record that the Park Ditch Company was a corporation organized under the laws of the Territory of Montana; that on September 16, 1874, the date of the contract set out in the petition, it was insolvent, and that the plaintiffs and the defendant were jointly table as its sureties to one R. S. Hale, for a balAnce of between $11,000 and $12,000, for which they held no indemnity; and that Hale, the creditor, offered to release them from this liaby on the payment to him of the sum of $2.52.10, to pay which they borrowed the said oney and gave the note mentioned in the peton. Both the plaintiffs were examined as Witnesses. Ming testified that the water rents which had been pledged as he supposed for the demnity of the plaintiffs were the rents for the Besson of 1875, and that the water did not begin to fantil about the middle of May, and that in Mar, 1875, there was a contest between R. S. Ese and the Park Ditch Company over these epts, and that Hale brought an action to reover them, and asked for the appointment of a ver. Both Ming and Kinna testified that Ley would have paid said sum of $2,572.10 to Hie, to be released from the larger obligation, even if no representations had been made to

by the defendant to the effect that the Fark Ditch Company had passed a resolution perging its assets for their indemnity; that they were not induced by the said representations of the defendant to relinquish any security which yheid; in fact they held none of any value. is stort, to put the case as the plaintiffs themTs by their own testimony put it, they towith the defendant jointly borrowed 77210, which they paid to Hale, who in coneration thereof released them from a liability Lim as sureties of the insolvent Park Ditch any of about $12,000, and they would

So far, therefore, as the case made by the dec-
laration is to be considered as an action to re-
cover damages by a deceit practiced by the de-
fendant, it amounts to this: that the defend-
ant, by his false representations, induced the
plaintiffs to do something which they would
have done anyhow, and by which they sus-
"The requisites to sustain an ac-
tained no loss, but on the contrary were greatly
tion for deceit," says Baron Parke, in Watson v.
advantaged.
Poulson, 15 Jurist, 1111, are "the telling of an
untruth, knowing it to be an untruth, with in-
See also Pasley v.
tent to induce a man to alter his condition, and
his altering his condition in consequence where-
by he sustains damage.'
Freeman, 3 T. R. 51; Polhill v. Walter, 3 Barn.
& Ald. 114: Levi v. Langridge, 4 Mees. & Wels.
337; Brown v. Castles, 11 Cush. 348; Tryon v.
as an action for a deceit it is plain that the case
Whitmarsh, 1 Met. 1. Considered, therefore,
must fail; for, conceding the alleged represen-
to have been false, the plaintiffs were not in-
tation to have been made by the defendant and
moreover, have suffered no damage.
duced thereby to change their condition and,

The plaintiffs' counsel say, however, that the
tract by which the defendant agreed to apply
action is to be considered as based on the con-
the assets of the Park Ditch Company which
came to his hands, after deducting all costs,
charges and expenses, to the reimbursement of
the plaintiffs for the money borrowed by them
and paid to Hale. Considered as an action on
the contract, the suit must fail for want of evi-
dence to support it. It is averred in the peti-
tion and not denied in the answer that the Park
Ditch Company never pledged the assets and
resources mentioned in the contract for the re-
imbursement of the plaintiffs, and nothing in
the record shows that such pledge was made.
The defendant in his answer denied that, after
the making of the contract, he ever received
any money from the assets of the Park Ditch
Company, or for water rents.

It is clearly shown by the evidence, and the contrary is not now asserted by the plaintiffs, that no money whatever was paid to the defendant on the Chessman note or on the Poznainsky claim. The plaintiffs insist, however, that the defendant received the water rents of the Park Ditch Company in the year 1875 to the amount of about $3,500 over and above costs, charges and expenses. But upon a careful reading of the record we are unable to find any evidence to support this contention. The only testimony upon this point is the minutes of the meetings of the board of trustees of the Park Ditch Company offered in evidence by the plaintiffs. These minutes show that R. S. Hale had, in a suit brought by him against the Park Ditch Company, seized the net receipts for water sales of the company, and that on May 24, 1875, the board of trustees assigned said net proceeds to A. J. Davis, W. C. Gillette and Samuel Schwab, who had become the sureties of the company in the suit, to secure them against loss by reason of their suretyship. They further show that on October 20, 1875, a reso

741

[603]

[604]

ANN