
    Blaufield v. State.
    
      (Knoxville.
    
    November 20, 1899.)
    1. Taxation. Imposition of privilege tax does not legalize an unlawful business.
    
    The imposition of a privilege tax upon a business — e. g., the sale of cigarettes — that is forbidden and punished by the criminal laws, does not operate to render such business legal, or to entitle one who has paid the tax and obtained license therefor to pursue such business in violation of the criminal laws. (Post, pp. 597-600.)
    Constitution construed: Art. II., $28.
    Acts construed: Acts 1897, Ch. 30; Acts 1899, Ch. 432.
    Cases cited: Palmer & Cartwright v. State, 88 Tenn., 563; State v. Sehlier, 3 Heis., 283; French v. Baker, 4 Sneed, 193; Robertson v. Henegar, 5 Sneed, 258.
    2. Statutes. Bepeal.
    
    Repeals of statutes by implication are not favored. The repug-nancy between the two statutes must be very plain and unavoidable. Both their terms and necessary operation must be wholly irreconcilable. (Post, pp. 600-602.)
    
    Cases cited: Durham v. State, 89 Tenn., 728; Frazier v. Railroad, 88 Tenn., 140; Reelfoot Lake District v. Dawson, 97 Tenn., 152; Austin v. State, 101 Tenn., 573.
    3. Same. Same. Case in judgment.
    
    Acts 1898, Ch. 30, forbade, under penalty, the sale of cigarettes. Acts 1899, Ch. 432, imposed a privilege tax on dealers in cigarettes “not sold in violation of criminal law.” The former statute was an exercise of police power; the latter an exercise of the taxing power. Held: That Act of 1899 did not repeal Act of 1897 by implication. (Post, pp. 600-603.)
    
    Acts construed: Acts 1897, Ch. 30; Acts 1899, Ch. 432.
    Case cited: Austin v. State, 101 Tenn., 573.
    
      4. ' CigaRextes. Not legitimate articles of commerce.
    
    The doctrines of the case of Austin v. State, 101 Tenn., 566, holding that cigarettes are not legitimate articles of commerce, and that the ten-cigarette package is not the original package of commerce, are reaffirmed. (Post, pp. 602, 603.)
    
    FROM KNOX.
    Appeal in error from Circuit Court of Knox County. Joseph W. Sneeí>, J.
    Sansom, Welokeb & Parkee, for Blaufield.
    Attorney-general Pickle for State.
   Samuel G-. Shields, Sp. J.

The plaintiff in error, who is a tobacco merchant doing business in Knoxville, Tenn., . has been indicted and convicted in the Circuit Court of Knox County for selling cigarettes in violation of Chap. 80, Sec. 1, of the Acts of 1897, which is as follows:

“Section 1. Be it enacted' by the General Assembly of the State of Tennessee, That it shall be a misdemeanor for any person, Arm, or corporation to sell, offer ' to sell, or to bring into the State for the purpose of selling, giving away, or otherwise disposing of any cigarettes, cigarette paper, or substitute for ■ the same; and a violation of any of the provisions of this Act shall he a misdemeanor punishable by a fine of not less than $50.”

The record discloses that on the 15th day of June, 1899, the' plaintiff in error applied to the Clerk of the County . Court of Knox County for license to exercise the privilege of a retail dealer in cigarettes under the Revenue Act of 1899, being Sec. 4 of Chap. 432 of said Act. He paid the Clerk the privilege tax imposed upon the business of selling cigarettes by said Act, and the Clerk issued to him a license to exercise the privilege of a retail dealer in cigarettes for three months from the 15th day of June, 1899, and the said Blaufield posted said license in his tobacco store, on Gay street, in the city of Knoxj-ville, On the 20th day of June, 1899, the plaintiff in error sold to one O. H. McGhee a package of cigarettes, -which had been previously sent to the said Blaufield by mail by the American Tobacco Company, from its factory in the State of Hew York, with no -wrappings around it. The revenue stamp upon said package of cigarettes • is used as the seal, and it is necessary to break the stamp to open the package. This' package contains ten cigarettes, and complies in all respects with the internal revenue laws of the United States in regard to the way in which cigarettes shall be packed.

The plaintiff in error insists that he holds the license of tlie State of Tennessee to carry on the business of a retail dealer in cigarettes, and that being the licensee of the State, he has the right to do eyerything that is proper and necessary for the enjoyment of his license, and, therefore, has the right to sell cigarettes to his customers without subjecting himself to prosecution under the criminal laws of the State. He seeks to interpose his said license as a defense to this criminal charge. He insists, further, that inasmuch as Ohap. 30 of the Acts of 1891, above quoted, absolutely prohibits the sale of cigarettes in the State in terms as broad as the English language-can make it, that the Revenue Act of 1899, declaring the right to sell cigarettes to be a privilege, and taxing it as such, by necessary implication repeals the criminal Act of 1897.

Sec. 4 of the Revenue Act of 1899, after enumerating the vocations, occupations, and business which may be carried on only after a license has been procured by the payment of a privilege tax, contains the following:

“CIGARETTES.
“(Not sold in violation of criminal law.)
“Wholesale dealers in cigarettes, each, per year, $50.
“Retail dealers in cigarettes, each, per year, $10.”

Sec. 15 of said Act declares the exercising of any of the privileges set out in Sec. 4 of the Act, without first paying the taxes prescribed for the exercise of the same, to be a misdemeanor punishable by fine of not less than $50, nor more than $500 for each day said privilege is exercised without license.

The plaintiff in error is mistaken in his assumption that one who pays this privilege tax to' the State thereby becomes a licensee of the State, and necessarily has the right to do and perform all things proper for the enjoyment of his license.

See. 28 of Art. II. of our Constitution provides that the Legislature shall have the power to tax merchants, peddlers, and privileges in such manner as they may from time, to time direct, but this clause of the Constitution does not provide that, upon taxing a vocation or business as a privilege, it shall thereby authorize a party paying this tax to carry on that business in violation of the criminal laws of the State. It is true, as contended by defendant’s counsel, that the word “privilege” has been defined by this Court, in several cases, to be the exercise of an occupation or business which requires a license from some proper authority designated by a general law, and not open to all or any one without such license. The State v. T. M. Schlier, 3 Heis., 283; French v. Baker, 4 Sneed, 193; Robertson v. Henegar, 5 Sneed, 258. But we have no decision that declares, in terms, that a license obtained for execising any of the avocations declared • to be privileges by our Legislature 'will ánthorize the licensee to carry on any such business in violation of any of the criminal laws of the State. The tax upon the privilege of selling cigarettes, “not sold in violation of criminal law,” is, at most, a tax assessed upon an unlawful oc-chpation, and it is expressly held, in the case of Palmer & Cartwright v. The State, 4 Pickle, 563, that taxation so imposed will not be construed to operate as a license legalizing such- unlawful business. “Taxation, even under the form óf a privilege tax, does not necessarily operate to license the business. The Constitution of Michigan prohibited the passing of any law licensing liquor dealing. A specific tax was assessed upon liquor dealers. It was' held by the Supreme Court of that • State, Judge Cooley delivering the opinion, nbt to be in its legal effect- a license tax, or in any way to sanction, authorize, or countenance the business.” 4 Piclde, 563; Youngblood v. Sexton, 32 Mich., 406.

An instance of a license in terms which does not carry with it- protection is that of the Pederal tax upon • the occupation of liquor dealing in States or localities where such traffic is illegal. License Tax Cases, 5 Wall., 462. Concerning this class of case's, Mr. Cooley, in' his work on Constitutional Limitations, says: “These burdens are imposed in the form of what are called license fees; and it has been claimed that when a party paid the' fee he was thereby licensed to carry on the business, despite the regulations which the State Government might make upon the subject. This view, however, has not been taken by the Courts, who have regarded the congressional legislation imposing a license fee as only a species of taxation, without the payment of which the business could not be carried on, but which, nevertheless, did not propose to make any business lawful which was not lawful before, or to relieve it from any burdens or restrictions imposed by the regulations of the State.” Cooléy ón Const. Lim., 721.

We conclude, therefore, that • one who pays a privilege tax to the State does not thereby become a licensee of the State, in the sense that he has the right to do and perform all things proper for the enjoyment of his license, in utter disregard of the criminal laws of the State.

If the position taken by the plaintiff in error is maintainable, it could- be argued with much more force and plausibility that the liquor dealer’s license authorizes him to sell liquor to minors, or upon Sundays, or within four miles of a schoolhouse, or on election days, for none of the statutes declaring the business of selling liquor to be a privilege, and requiring a license for its exercise, contain any proviso that it shall not be. sold in violation of criminal law, such as is found in tlie Act of 1899 in reference to tlie sale of cigarettes. . If tlie license would authorize the licensee to sell in violation of one criminal law, it would authorize him to sell in violation of all criminal laws, and the validity of the statutes regulating the sale of liquors, and making it a criminal offense to sell to minors, on Sundays, or within four- miles of a sehoolhouse, has never been questioned, and could not, under our law, be successfully attacked.

The contention of the plaintiff in ' error that the Act of 1897 is repealed, by necessary implication, by the Act of 1899, or that the Legislature intended to rfepeal the former Act by the later one, and to place cigarettes upon the list of commodities which might be sold in the State of Tennessee under certain conditions and with certain restrictions, is also unsound.

It is a familiar and universal rule that repeals of statutes by implication are not favored. The repugnancy between the two statutes must be very plain and unavoidable. Both the terms and the. necessary operation of the two • Acts must be incapable of reconciliation before the older Act will be repealed by the later one, for the reason that statutes are only held to be repealed by implication because it cannot be supposed that the lawmaking power intended to enforce laws which are contradictions. Durham v. The State, 5 Pickle, 728; Frazier v. Railroad, 4 Pickle, 140; Sutherland on Statutory Construction, Sec. 138.

When these rules are applied to the two Acts in question, it is manifest that the Revenue Act of 3899, making the selling of cigarettes a privilege, when “not sold in violation of criminal, law,” is not so repugnant to the Act of 1897 as to repeal it by implication. The Act of 1897 is a police regulation, passed in the exercise of the State’s power and duty to protect the health of its' .citizens, while the Act of 1899 is purely a revenue statute, passed alone to raise money for the support of the State Government. The two fields of legislation are entirely separate and distinct, and referable to different branches of legislative power. Reelfoot Levee District v. Dawson, 97 Tenn., 152. ISTo Act passed on the one subject ' will in _any manner affect an Act on the other subject, unless obviously so intended. Austin v. State, 101 Tenn., 573, 574. TJnder a proper construction of the Revenue Act, the two Acts are not repugnant at all, for the selling of cigarettes is only declared to be a privilege when not sold in violation of the criminal laws of the ' State.

It is also perfectly manifest that the Legislature did not intend, in this indirect way, and by a statute passed for an entirely different purpose, and in the exercise of a different legislative power, to repeal such a positive and wholesome law as that enacted by Chap. 30 of the Acts of 1897, and that; too, in the face of the recent decision of this Court, in -executing the provisions of the Act of 1897, declaring cigai’ettes to be wholly noxious and deleterious to health, and not legitimate articles of commerce. Instead of showing an intention to repeal the Act of 1897, and to thereby make the sale of cigarettes lawful, this Revenue Act expressly repels any such intention by declaring that the sale of cigarettes shall only be taxed as a privilege when “not -sold in violation of criminal law.” The Legislature evidently had the Act of 1897 in mind when this revenue statute was passed, and incorporated into it this very extraordinary clause to expressly negative the idea that the Act of 1897 should be thereby repealed.

The plaintiff in error cannot, therefore, interpose his receipt for this tax, which appears to be in the form of a license, as a defense to the criminal charge made against him in this case.

It is next insisted in behalf of the plaintiff in error that the sale of cigarettes' made in this ease was a sale of an original package brought into the State from another State, and was not, therefore, illegal, as such sales are protected by Sec. 8, clause 3, of the Constitution of the United States. This question was expressly decided in the case of Austin v. The State, 17 Pickle, 566, where this Court held that cigarettes were not legitimate articles of commerce. It is not necessary, therefore, to further discuss that question here.

The judgment of the Circuit Court „ will he affirmed with costs.  