US SUPREME COURT DECISIONS

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, chanrobles.com-red

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.