[746]                                                                    13 Virginia Law Register N.S. | April 1928

HUSTINGS COURT OF THE CITY OF ROANOKE

Commonwealth v. O’Neal

Weapons- Taxation – Statute Providing for Taxation of Revolvers Unconstitutional. Acts 1926, p. 285, providing for the registration of revolvers and pistols and impose a tax thereon is invalid as infringing the provisions of the Constitution of Virginia.

HON. J.M. Hart, Judge:  The defendant was fined by the Police Justice of this City for failure to register a pistol as required by an act of the Legislature of 1926 found on page 285 of the Acts of that Session and from such fine appealed to this court.  The facts are agreed and the case comes up squarely on the constitutionality of the law.

I am clearly of the opinion that the law is unconstitutional and that the accused will have to be discharged.

Section 168 of the Constitution provides (a) that all property shall be taxed, (b) that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.

The first question to be decided is: Does the law impose a tax or does it provide for a license which is to be in addition to the usual tax on property?

The law unquestionably imposes a tax.  In the caption and the body of the law it is so designated and to make it certain that a tax and not a license is intended, it is provided “The tax hereby imposed shall be in lieu of all other taxes on such pistols and revolvers.”  Being a tax it contravenes  the first provision of Sec. 168 in that it provides that property of this class belonging to officers of the law and such as is obsolete, no matter to whom belonging, and without regard to value shall not be subject to the tax but instead shall be registered. It, the law, contravenes the second provision of this section of the constitution in that it imposes the same tax upon all pistols and revolvers regardless of value, thus destroying that uniformity in the tax required by it. The pistol of little value and the revolver of the rich studded with diamonds are liable to the same direct tax of one dollar, while the constitution contemplates that taxes shall be levied ad valorem.

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If the law making body can levy a tax of a fixed amount upon pistols, without regard to value, it can do the same for horses, automobiles and all other classes of personal property. The very statement of the proposition is its own refutation.

The only escape from the conclusion to which I have come across is or at least would be to hold that the law imposes a license and not a tax.  In answer to this it can be said that the imposition bears none of the of the features of such licenses as we are acquainted with in this State. I know of no instance where a license tax is imposed for the mere possession of personal property.  There ae many instances of licenses imposed to do business and some upon certain classes of property used in business. License upon an automobile for instance is not in lieu of the property but for the privilege of operating it on the public roads.

Should it be held, however,  in spite of the plain wording of the law that a license and not a tax is intended, then the statute is still subject to the obligations that it exempts certain property from taxation.  To hold that the statute imposes a license only and that the property of this class is subject not only to the license but also to the direct ad valorem, to which all property is liable, would be to give it an interpretation and construction never intended by its makers and in the teeth of the plain English in which it is written.