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Vol. I.)

COVERSTON v. THE CONNECTICUT Mut. Life Ins. Co.

(No. 5.

when she shows that she was the wife of the said Henry 0. Coverston; that he is dead, and that due notice and satisfactory evidence of the death of the said Henry 0. was given by her to the defendant or its authorized agents ninety days before this suit was brought. If these facts are shown, then it devolves upon the company to establish its defences pleaded in the answer, or some one of them.

2. The main defence relied on by the company is that the assured procured the policy with intent to cheat and defraud the company by thereafter taking his own life; and that in pursuance of this purpose the assured purposely took his own life by shooting himself on the 16th day of December. These defences are denied by the plaintiff.

3. The policy in suit contains a provision, that if the assured “ shall die by suicide" the said policy should ** become and be null and void.”

And the first question to be determined is, did the assured shoot himself accidentally, or did he purposely take his own life by an act which he knew, designed, and intended should have that effect ? If, upon the evidence, you are of opinion that the plaintiff's husband accidentally shot himself, this is not suicide and the defence fails. If, upon the evidence, you find and believe that he intentionally shot himself with the design and purpose to take his own life, this is suicide and avoids the policy, unless the evidence also establishes to your satisfaction insanity of such a character and degree as will in law prevent the act of suicide from having the effect of avoiding the policy.

4. It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the coinpany insuring liable. To do this, the act of self-destruction must have been the consequence of insanity, and the mind of the deceased must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act he was about to do, the company is liable. On the other hand, there is no presumption of law, primâ facie or otherwise, that self-destruction arises from insanity; and if you believe from the evidence that the deceased, although sick, or distressed in mind, formed the determination to take his own life, because in the exercise of his usual reasoning faculties he preferred death to life, or desired thereby to make a provision for his wife, then the company is not liable, because he died by his own hand within the meaning of the policy.

5. The burden of proof to show that the death of the assured was suicide and not accidental is upon the company. If you are satisfied from the evidence that the assured died by suicide, then the burden to establish the insanity of the kind and degree above mentioned, as being requisite to hold the company, is upon the plaintiff.

Verdict-for plaintiff in the amount of $5,543. Defendant moves for new trial.

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1. The council of the city of Richmond may lay a tax upon lawyers as such. 2. The ordinance of the council provides that lawyers and others shall be divided

into six classes, and that those in each class shall pay a certain sum as his tax ; and it directs that the committee of finance shall place each lawyer in the class to which they shall think he properly belongs, looking to all the circumstances of the case. And it is provided that when the committee have completed their classification, public notice shall be given, and any lawyer dissatisfied with his classification may appear before the committee and have it corrected if erroneous. Held, the tax is not an income tax, nor are the duties imposed on the committee legislative, but ministerial ; and the ordinance is not unconstitutional.

This was an action of assumpsit in the circuit court of the city of Richmond, instituted in November, 1871, by Ould & Carrington, lawyers, against the city of Richmond. The object of the suit was to test the constitutionality of the ordinance of the city council, imposing a tax on lawyers. Issue was made up on the plea of “non-assumpsit," and the whole matter of law and fact was submitted to the decision of the court.

The power of taxation vested by the charter in the council of the city is stated by Judge Anderson in his opinion, and need not be repeated. By the ordinance imposing taxes, persons following various employments in the city were classified, and a specified tax was imposed on each class. Among these were lawyers, who were divided into six classes. The eleventh section of the ordinance provides : “ That the committee on finance shall place each person and firm employed in the trade or business referred to in sections three, four, five, seven, and eight, in the class to which the committee shall be of opinion such person or firm properly belongs, looking to all the circumstances of the case.” And it was di

, rected that when the committee had completed their classification, they should give notice of the fact by publication in two of the papers of the city, and that the committee would meet at a specified time to hear any application for a correction of the classification; and in the mean time the list was left in the auditor's office, open for the examination of all persous interested in the matter.

In 1871 the committee of finance placed the plaintiffs, as lawyers, in the first class, and classified all lawyers practising in the city in the respective classes mentioned in section five of the ordinance, – that being the section in reference to lawyers. In doing so the committee had no assessment of the plaintiffs' income from their profession before them; nor did the committee ascertain, or attempt to ascertain, their incomes in any way; but formed its own estimate, without evidence, of the reputation and standing of the lawyers practising law in the city of Richmond, including the plaintiffs, and their supposed capacity to make profits in

Vol I.

16

Vol. I.]

OULD & CARRINGTON v. CITY OF RICHMOND.

(No. 6.

that way, relatively with each other; and classified them accordingly. The committee made no report to the council of their action in the premises, nor did the council ever revise or consider it in any way; but an opportunity was offered to all the lawyers to show, each for himself, that they had been taxed too high in the manner provided in the eleventh section of the ordinance, and some of them availed themselves of that opportunity, and among them the plaintiffs, whose tax was reduced from one hundred and fifty to one hundred dollars ; but in doing so the committee acted without evidence of the relative incomes of the lawyers embraced in the classification. The plaintiffs having paid the tax under protest, after the officer had levied upon their property, brought this action to recover it back.

Upon the hearing of the case there was a judgment for the plaintiffs ; and the city of Richmond having taken an exception to the opinion and judgment of the court, applied to this court for a supersedeas, which was awarded.

Meredith, for the appellant.
Wm. Green f. R. T. Daniel, for the appellees.

ANDERSON, J. The power to tax rests upon necessity, and is inherent in every sovereignty. It is included in the general grant of legislative power, and reaches, as is said by Mr. Justice Cooley, “ to every trade or occupation ; to every object of industry, use, or enjoyment; to every species of possession.” “ If the right to impose the tax exists, it is a right which in its nature acknowledges no límits. It may be carried to any extent, within the state or corporation which imposes it, which the will of such state or corporation may prescribe.” Cooley on Constitutional Limitations, chap. 14, p. 479-482. And in the language of Chief J. Marshall, the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised, on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against its abuse is the structure of the government itself. The influence of the constituents over their representative is the safeguard against its abuse. McCulloch v. Maryland, 4 Wheat. 316-428. It must always be conceded that the proper authority to determine what should and what should not properly bear the public burden is the legislative department of the state. This is true not only of the state at large, but it is true also in respect to each municipality, or political division of the state. But these municipal corporations have only such powers as the legislature of the state confers on them. Cooley's Const. Lim. 488. And their powers are controlled by the Constitution of the United States, and of the state. The restrictions which they impose on the legislative power of the state rest equally upon all the instruments of government created by it. Ib. 198.

The powers of public corporations are either express, implied, or incidental.” And except as to such powers as are incidental, the charter itself, or the general law under which they exist, is the measure of the authority to be exercised. They have no inherent jurisdiction, like the state, to make laws, or adopt regulations of government. They are governments of enumerated powers, acting by a delegated authority; so that while the

Vol. I.)

OULD & CARRINGTON v. City Of RICHMOND.

(No. 6.

state legislature may exercise such powers of government, within the description of legislative power, as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and such as are incidental, subject to such regulations and restrictions as are annexed to the grant. Cooley, 192.

With these general principles in view, we will now inquire whether the charter of the city of Richmond invests the municipality with power to impose the tax complained of. And then if such power is conferred, has it been properly exercised in this case ? By section 69 of the charter, sep. acts of 1869–70, p. 138, it is provided that, “ For the execution of its powers and duties, the city council may raise annually, by taxes and assessments in said city, such sums of money as they shall deem necessary to defray the expenses of the same, and in such manner as they shall deem expedient, in accordance with the laws of this State and of the United States.” This clause confers the general power of taxation, except only as it may be limited by the laws of the State and the United States; and includes all powers and subjects of taxation. And as to the manner of laying the tax, the council is invested with full discretion. And they are authorized to lay a tax to defray the expenses of the city to an amount which they may deem necessary.

It seems to me that this language is broad enough to embrace, not only a tax on real and personal property, but every other description of tax which the council might deem necessary and proper, unless its meaning is limited and circumscribed by what follows.

The clauses of this section, which follow, are evidently designed to restrict the unlimited power of taxation given by the clause which has just been recited, to a certain extent, by prohibiting certain taxation which would have been included in the power given, if not thus restricted, to wit, on city bonds, or capital invested in real estate, or in manufactures outside the limits of the city, although the persons engaged in such business or manufactures have a place of business in the city; upon the stock of a corporation and the dividends thereof at the same time ; upon any capital, &c., employed in a business upon which a license or other tax is imposed.

These are the only limitations as to the subjects of taxation ; and consequently the power of taxation, on all other persons and subjects of taxation, is given. The other restrictions are, as to the mode or manner of taxation; and they are, that the tax on property shall be equal and uniform ; that capital invested in business operations shall be taxed as other property; and that stocks shall be assessed according to their market value. The power to tax lawyers' licenses is unquestionably included in the general power given by the first clause of this section ; and there is nothing in the clauses limiting and restricting the general power which exempts them. Is there anything in the next section which is restrictive of this power?

This section does not employ the language of restriction. It purports to give power, not to abstract or to withhold it. It gives to the city council power to grant or refuse a license in certain cases, and to tax the license when given. After enumerating several, it adds in general terms, to "all other business which cannot be reached by the ad valorem system

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Vol. I.)

OULD & CARRINGTON v. CitY OF RICHMOND.

(No. 6.

a

under the preceding section,” the council may grant or refuse a license, and tax the same when granted. Lawyers are not named among those to whom licenses may be granted or refused, and taxed, and I think were not intended to be included. They could not be included in a provision to authorize a tax upon an occupation or business to which the council might grant or refuse a license ; for a lawyer has obtained his license from the state, and it is not within the province of a municipal council to grant it, or to take it away. Yet, whilst a lawyer's license authorizes him to practise law in any court of the commonwealth, and it is not in the power of any municipality to deprive him of that right, or to take away his license, it is a civil right and privilege, to which are attached valuable immunities and pecuniary advantages, and is a fair subject of taxation by the State, or by a municipal corporation where he resides and enjoys the privilege. It is a vested civil right; yet it is as properly a legitimate subject of taxation as property to which a man has a vested right. I cannot perceive that there would not be as much reason for saying that a man's property is not taxable, because he has a vested right to it, as for saying that a lawyer's license is not taxable, because he has a vested right to it.

I am of opinion, therefore, that the power to tax a lawyer's license is included in the general power of taxation given by the first clause of $ 69; and that it is not taken away by anything that follows. But, if I were mistaken in this view, and the power is not given by the 69th section, it is given by section 1.

By that section it is enacted that the city of Richmond, for all purposes for which towns and cities are incorporated in this commonwealth, shall continue to be one body politic, “and as such shall have, exercise, and enjoy all the rights, immunities, powers, and privileges, and be subject to all the duties now incumbent and appertaining to said city as a municipal incorporation." Acts of 1865–66, p. 241. By section 68 of the act passed February 7th, 1866, then in force, it is enacted that, “For the execution of its powers and duties, the council may tax real estate in the city; all personal property therein," &c.; and by section 69, “ The council may tax the keepers of ordinaries, brokers, lawyers, physicians and dentists, &c. It appears, then, that the corporation was expressly invested with

c power to tax lawyers when, and before, the new charter of 1870 was granted ; and it is expressly enacted in the 1st section thereof, that the corporation shall have, exercise, and enjoy all the powers then appertaining to the city as a municipal corporation. The power of taxation was one of its most important powers, and could be exercised only through the council. This general grant of power seems designed to supply any omissions which might be made in the provisions of the act which was to follow. So that the corporation would be invested, not only with the powers expressly granted therein, but also with all other powers with which it was then invested by previous acts of the legislature. I am of opinion, therefore, upon both grounds, that the power to tax lawyers is clearly given by the charter. It only remains to inquire, Has it been constitutionally exercised in this case ?

By an ordinance of the council, the lawyers of Richmond were divided into six classes ; and the individuals of each class were assessed with a

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