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2 IN THE Supreme Court of. Appeals of.. Virginia AT RICHMOND. Record No VIRGINIA: In the Supreme Court of Appeals held at the Supreme Court of Appeals Building in the City of Richmond on Tuesday the 25th day of April, ALICE MARIE R. YOUNG, Appellant, against TOWN OF VIENNA, VIRGINIA,. Appellee. From the Circuit Court of. Fairfax County ; <. :'>' ' Upon the petition of Alice l\iarie R. Young an appeal and sttpersedeas is awarded her from a decree entered by the Circuit Court of Fairfax County on the 15th day of December, 1960, in a certain proceeding then therein depending wherein the said petitioner was plaintiff and Town of Vienna, Virginia, was defendant; upon the petitioner, or some one for her, entering into bond with sufficient security before the clerk of the said circuit court in the penalty of three hundred dollars, with condition as the law directs. Mr. Justice Carrico took no part in the consideration or decision in this case.

3 2 Supreme Court of Appeals of Virginia RECORD Filed in Circuit Court Clerk's Office, Jun. 14, T 1-IO~IAS P. CHAP~1AN, JR. Clerk Fairfax County, Va. PETITION. To the Honorable Judges of this Court : COl\IES NO"\V your petitioner, by counsel, and represents to this Honorable Court as follows : 1. That she is a property owner and a resident of the Town of Vienna. 2. That she is the owner of record of that parcel of land known as Bowman's Sunoco. 3. That on April 15, 1959, she did lease to the Sun Oil Company said parcel of property for a 1nonthly rental of one hundred twenty-five dollars ($125.00), and further, that at that time there were no building s or other improvements thereon. 4. That subsequent to the lease, the Sun Oil Company has erected a service station and does own the building and improvements, and that this petitioner takes no part in the operation of the business nor does she receive profits therefrom. 5. That on February 8, 1960, the Town of Vienna, Virginia, did adopt an amendment to the Town of Vienna Business Ordinance No., said mnendrnent being- No. 53 thereto; that a copy of said ordinance and amendment is attached hereto and is by reference made a part hereof. page 2 ~ 6. That on 1\{ay 23, 1960, your petitioner did, under protest, obtain a Town Business Privileg-e license from the Town of Vienna and did pay, under protest, a ten dollar ($10.00} license fee plus one dollar ($1.00) penalty. 7. Your petitioner further alleges that the amendment to said ordinance is so vague as to be incapable of interpretation and is invalid. 8. That it is discriminatory to such an extent it denies the petitioner the due process of the law under the Fourteenth Amendment of the Constitution of the United States and the Constitution of the Commonwealtl1 of Virg inia.

4 Alice 1viarie R. Young v. Town of Vienna, Virginia 3 9. That it was enacted as a regulatory measure but has no regulation of any type of business and is invalid. 10. That on its face it proports to be a fee for the privilege of doing business in the Town of Vienna, when in fact it is a tax on income and such revenue measures are reserved exclusively to the Common"realth of Virginia and the ordinance is invalid. vvherefore your petitioner prays 1. That the Court declare Business Privilege License Ordinance and amendn1ent No. 53 thereto null and void for t11e reasons aforesaid; and 2. That she may have all and such further relief as the nature of her case may require, including the return of license fee and penalty and such other relief as this Court may deem meet and just. ALICE l\l R. YOUNG By Counsel. STANLEY D. PERRY 121 North Washington Street Alexandria, Virginia.. ' page 3 ~ NOTICE OF ADOPTION TOWN OF VIENNA, VA. The Vienna Town Council at a special meeting held on Febru:ary 8, 1960 adopted the following amendments to the Town of Vienna Business License Ordinance:.. pag e 4 ~ RENTING BY OWNER OF HOUSES, AP ART~IENTS OR COMMERCIAL ESTABLISIIMENTS. Every person who,!ls principal, shall engage in the business of renting houses, apartments or commercial property in the Town shall pay for the privileg e of doing business an annual license tax of fifteen cents on each one hundred dollars of gross receipts from the rental of all comn1ercial' establishn1ents, apartment units or dwelling units during the preceding fiscal or calendar year. Persons engaged in the

5 4 Supreine.Court of Appeals of Virginia busin,ess of. renting houses or apartments, or both, shall not be affected by, or come within the provisions of this section unless such person is engaged in the business of renting in excess of two separate dwelling units. The 1uiuhnum annual license tax shall be ten dollars. The business of renting houses and apartments as used in this section shall be construed to mean the rental of a building or portion thereof designed exclusively for residential occupancy, including one-family, two-family and nmltiple family dwellings, but not including hotels, boardinghouse& and rooming houses. The words ''dwelling unit'' are defined to mean one or 1nore rooms in a dwelling house or apartment designed for occupancy by one family for living purposes and having cooking facilities. An etnergency existing, this Ordinance is in foree from its passage. Given under my hand this 8th day of February Seal IRENE C. COLE Clerk of said Couneil. page 6 ~ Received June 17, 1960, Fairfax County Sheriff's Office. PROOF OF SERVICE. 'Virginia: In the Circuit Court of the County of Fairfax. Alice Marie R. Young, v. Town of Vienna, Petitioner, Defendant. CHANCERY NO Returns shall be made hereon, showing service of Subpoena

6 Alice lfarie R. Young v. Town of Vienna, Virginia 5 in Chancery issued June 15th, 1960, with copy of Bill of Complaint filed June 14th, 1960, attached: Executed on the 20 day of June, 1960, in the County of Fairfax, Virginia, by delivering a tl'uc copy of the ahove mentioned papers attached to each other, to Guy l\l vvilson, l\iayor of the Town of Vienna in person. Returned by Sheriff J un 21, JOliN E. TAYLOR Sheriff, County of Fairfax, Va. By M. T"\VOl\tiBLY, Deputy Sheriff. TIIOMAS P. CHAP~fAN, JR., Clerk. page 7 ~ DEMURRER. Comes now the Town of Vienna, Virginia, by counsel, and demurrs to the petition filed herein and states tha.t the pleading fails to set forth a cause of action, and is insufficient in law and fact to cause the defendant to hnve to answer the same. Wherefore, defendant, Town of Vienna, Virginia, having demurred to this action, requests that it be distnissed forthwith. TOWN OF VIENNA, VIRGINIA By MARCUS L. BECKNER,,JR. Town Attorney. Filed J ul 8, THO~IAS P. CHAPMAN,,JR. Clerk of the Circuit Court of Fairfax County, Va. page 8 ~

7 6 Suprmne Court of 1\.ppeals of Virginia MOTION ~,OR BILL OF PA.R-TICULARS. Comes now the Town of Vienna, Virginia, by counsel, and moves the Court for the following particulars of the petition filed against the defendant herein: 1. The words or portions of the Town of Vienna Business Privilege License Ordinance, alleged to be so vag-ue as to be incapable of interpretation as set forth in paragraph seven of the petition herein. 2. The words or portions of the Town of \Tienua Business Privilege License Ordinance that arc discriminatory as alleged in paragraph eight of the petition herein. 3. The words or portions of the Business Privileg e License Ordinance that constitute it as a regulatory measure. 4. The words or portions of the BusinC'ss Privilege License Ordinance that constitute it a tax on inc01ne. Filed August 11, TO\VN OF VIENNA, VIRGINIA Ry ~1ARCUR L. BECKNER, JR. Town Attorney THOlVIAS P. CHAPfiiAN, JR. Clerk of the Circuit Court of Fairfax County, Va. page 9 ~ BILL OF PARTICULARS. COMES NOW Alice ]\farie R. Young, by counsel, and files the following Bill of Particulars: 1. The words or portions of the Town of Vienna Business Privilege License Ordinance alleged to he so vague as to be incapable of int_erpreta_tiou are contained in the first sentence of the first para.graph of Amendment 53 thereto. 2. The words or portions of the Town of Vienna Business

8 Alice ~Iarie R. Young v. Town of Vienna, Virginia 7 Privilege License Ordinance that are discrin1inatory are found in the second sentence of the first paragraph of Amendment 53 of said ordinance. 3. It is the plaintiff's intention to abandon this allegation. 4. The words or portions of the Town of Vienna Business Privilege License Ordinance that contitute it a tax on income are found in the first sentence of the first paragraph of Amendment 53 of said ordinance, and the last sentence of the first paragraph of said ordinance. Filed Aug. 16, STANLEY D. PERRY By counsel page 10 ~ THOl\IAS P. CHAPl\IAN, JR. Clerk of the Circuit Court of Fairfax County, Va. ORDER.. This cause came on to be heard this 29th day of July, 1960, on the petition of Alice Young; on the demurrer of the defendant and on appearance by and argtunent of counsel for the parties hereto. Upon due consideration of this cause on demurrer, it is hereby ADJUDGED, ORDERED and DECREED that the demurrer is -hereby over ruled, and It is further ADJUDGED, ORDERED and DECREED that the defendant be permitted to file its motion for a bill of particulars within fifteen days; that the petitioner be permitted ten days to answer the bill of particulars and that the defendant be permitted an additional ten days to file an answer to this cause. Date : September 1, ARTHER vv. SINCLAIR Judge

9 8 Supren1e Court of Appeals of Virginia page 11 } ANS"\\TER. Comes now the defendant by counsel and files this its answer to the petition filed herein. 1. The allegations contained in paragraphs one and five are admitted. 2. The allegations contained in paragraphs two, three, four and six are matters not known to the defendant, but for purpose of this suit strict proof thereof is den1anded. 3. The allegations contained in paragraphs seven, eight nine and ten are denied. By way of further answer, the defendant says that the ordinance referred to in paragrapl1 five of the petitioners bill, is a valid exercise of the authority vested in the Town of Vienna, Virginia, and is a license ordinance and not discrinlnatory nor a tax on income. Filed Sep. 22, TOWN OF VIENNA, VIRGINIA By MARCUS L. BECKNER, JR. Town Attorney THOliAS P. CHAP~IAN, JR. Clerk of the Circuit Court of Fairfax County, Va. page 12} STIPULATIONS. Following are the facts stipulated to by counsel for the parties hereto, eliminating the necessity of the proof thereof. 1. That the petitioner is a property owner and resident of the Town of Vienna, Virginia.

10 Alice MarieR. Young v. Town of Vienna, Virginia 9 2. That the petitioner is the owner of record of the parcel of land in the Town of Vienna, virginia, known as Bowmaus Sunoco and that she is the lessor of said land to the Sun Oil Company, said lease being dated April 15, 1959, providing a monthly rental of $125.00, payable to the petitioner herein. 3. That the petitioner herein obtained a use permit, for the land described in paragraph tw o, for the operation of a gasoline filling station, from the Town of Vienna, Virginia, on Nov. 7, 1956, and that said land is located in the C-1, Local Commercial Zone, of the Town of Vienna, Virginia, as set forth in the Zoning Ordinance thereof. 4. That subsequent to the execution of the lease between the Sun Oil Company and the petitioner herein, the Sun Oil Company erected a service station on the aforesaid property and that the petitioner herein takes no part in the operation of said station. page 13 ~ 5. That the Town of Vienna, Virginia, adopted a Business Privilege License Ordinance, effective January 1, 1960, and an1ended the same February 8, 1960, and that both the ordinance and the amendment constitute the Business Privilege License Ordinance of the Defendant. 6. That on l\lay 23, 1960, the petitioner herein, under protest, obtained a license from the defendant, pursuant to the provisions of Section 53 of the Business Privilege License Ordinance and paid a fee of $10.00, plus $1.00 penalty. Filed Dec. 1, STANLEY D. PERRY Attorney for Petitioner MARCUS L. BECKNER, JR. Attorney for Defendant THOMAS P. CHAPMAN, JR. Clerk of the Circuit Court of Fairfax County, Va. page 14 ~ DECREE. This cause came on this first day of December, 1960, to be heard on the petition; the defendant's motion for a bill of particulars ; the petitioner's bill of particulars ; the defend-

11 10 Supreme Court of Appeals of Virginia ant's ans,ver; and on argument of counsel for the parties hereto. After due consideration of the foregoing by the court, it is ADJUDGED, ORDERED and DECR.EED, that the prayers of the petitioner herein be, and the sa1ne are, denied, and that to this order the petitioner excepts; It is further ADJUDGED, ORDER.ED and DECREED that Section 53 of the Town of Vienna, Virginia, Business Privilege License Ordinance is a valid ordinance, and that to this order the petitioner excepts. Date: Decen1ber 15, AUTHUR W. SINCLAIR Judge page 15} NOTICE OF APPEAL AND ASSIGNlYIENT OF ERRORS. TO: The Clerk of the Court, Circuit Court of the County of Fairfax, Virginia. Counsel for Alice Marie R. Young, petitioner in this proceeding, hereby gives Notice of Appeal from order entered in this cause on December 15, 1960, and sets forth the following Assignment of Errors: 1. That the Court erred in ruling as a matter of law that the plaintiff herein was engaged in the business of renting commercial property. 2. That the Court erred in ruling as a matter of law that the Vienna Business Privilege License Ordinance, Amendment 53, was not discriminatory and did not deny the petitioner due process of law under the Fourteenth Amendn1ent of the Constitution of the United States and under the Constitution of the Commonwealth of Virgini"a. 3. That the Court erred in ruling as a matter of law that

12 Alice 1\riarie R. Young v. Town of Vienna, Virginia 11 Amendment 53 to said Ordinance was not vague and incapable of interpretation. page 17 ~ 4. That the Court erred in ruling as a matter of law that the tax levied was a tax for the privilege of doing business and not a tax on income. Filed Jan. 3, A Copy-Teste: S'rANLEY D. PERR.Y Attorney for the Petitioner 121 North Washington Street Alexandria, Virginia. THO~IAS P. CHAP~iAN, JR. Clerk of the Circuit Court of Fairfax County, Va. H. G. TURNER, Clerk.

13 INDEX TO RECORD Page Appeal and Supersedea.s Awarded Record Petitio Notice of Adoption Proof of Service De1nurrer \Iotion for Bill of Pa1 ticulars Bill of Particulars Order-September 1, A11s,ver S tipllla tions Decree-December 15, Notice of Appeal and Assig11ments of Error

Supreme Court of Appeals of Virginia

IN THE Supreme Court of Appeals of Virginia AT RICHMOND Record No. 6905 VIRGINIA: In the Supreme Court of Appeals held at the Supreme Court of Appeals Building in the City of Richmond on Thursday the 29th