Allen v. The Mayor

• Decision Date: 31 January 1851
• Docket Number: No. 55.,55.
• Citation: 9 Ga. 286
• Parties: Allen, Ball & Co., plaintiffs in error. vs. The Mayor and Aldermen of the City of Savannah, defendants in error.
• Court: Georgia Supreme Court

9 Ga. 286

Allen, Ball & Co., plaintiffs in error. vs. The Mayor and Aldermen of the City of Savannah, defendants in error.

No. 55.

Supreme Court of the State of Georgia

JANUARY TERM, 1851.

Certiorari. Decided by Judge H. R. Jackson, December 20th, 1850.

On 11th November, 1842, the Mayor an Aldermen of the city of Savannah passed an ordinance, imposing a tax upon the gross commissions or income received from sales of goods, professional pursuits, &c. On the 22d November, 1849, another ordinance was passed, "to reduce the taxes of the City of Savannah, " which, among other things, reduced "the tax on income 25 per cent." On the 9th of December, 1849, the General Assembly passed an Act which, among other things, provides, "That all and singular the ordinances of said corporation (of Savannah) heretofore passed, and now in operation, for the laying or collecting Of any tax or assessment be, and they are, hereby adopted and confirmed, and declared of full force."

By a declaratory ordinance, passed 13th May, 1850, the income tax was directed to be collected from the date of the passage of the Act, 9th December, 1849.

On the 9th day of June,. 1849, in a cause pending between the Mayor, &c, of Savannah and Charles Hartridge, Judge Fleming, then presiding in the Superior Court of Chatham county, declared the ordinance of 11th November, 1842, illegal and void; which decision, on appeal to the Supreme Court, was affirmed at January Term, 1850. See 8 Ga. Reps. 23.

Allen, Ball & Co., having refused to pay their income tax, assessed as prescribed in the declaratory ordinance of May, 1850, an execution was issued therefor. To this fi. fa. an affidavit of illegality was filed, on the grounds, among others, that the City Council had no power to pass the ordinance assessing a tax on income; that the ordinance of November, 1842, had been declared illegal and void, before the passage of the Act of December, 1849, and was consequently not "now (then) in operation, " and that the declaratory ordinance of May, 1850, was retrospective and void.

The City Council having overruled the grounds taken, a writ of certiorari was applied for to Judge Jackson, presiding in Superior Court. On argument had, the writ was refused.

And to this decision exceptions were filed, on which error has been as signed.

Law and Bartow, for plaintiffs in error.

Lloyd & Owens and B. H. Griffin, for defendants.

By the Court.—Lumpkin, J., delivering the opinion.

By an ordinance passed the 11th of November, 1842, the Mayor and Aldermen of Savannah imposed a tax of two and a half per cent. on gross income; and on the 22d of November, 1849, they passed another ordinance, reducing the tax on income twenty-five per cent. On the 13th day of May, 1850, the Mayor and Aldermen passed another ordinance, entitled "An ordinancedeclaratory of existing tax ordinances, which is as follows: Whereas, it is understood that doubts exist as to the precise day from which returns are to be made under the ordinance passed the 11th day of November, 1842, imposing a tax upon all gross income derived from commissions, (whether ordinary or guaranty commissions,) charged on purchases or sales of any articles whatever, or procuring and collecting freights, or receiving and forwarding goods; on all money negotiations; on the purchase or sale of stocks, or other evidences of debt or commissions received as executor or executrix, or administrator or administratrix, and also upon the profit or income arising from the pursuit of any faculty, profession or calling, (the clergy and schoolmasters excepted;) and, whereas, the Legislature at its last session, by an Act duly passed and approved, adopted, confirmed and declared of full force, all and singular the ordinances of this corporation heretofore passed and then in operation, for laying and collecting any tax or assessment—

"Be it therefore ordained by the Mayor and Aldermen of the city of Savannah and the hamlets thereof, in Council assembled, and it is hereby ordained by the authority of the same, that the City Treasurer be, and he is, hereby ordered and directed to receive, and all persons liable to said tax are required to make returns under the ordinance aforesaid, and those amendatory thereof, from the day of the passing and approving of the Act aforesaid.

"And be it further ordained, that the City Treasurer issue executions against all defaulters, according to the tax ordinances of the city."

By order of this last ordinance, Allen, Ball & Co. returned commissions on purchases, sales, freight, and other negotiations, from the 8th December, 1849, to the 30th April, 1850, inclusive, $6,381, tax $119 71; and having failed to pay this tax, the Mayor and Aldermen issued an execution for the collection of the same, under which a levy was made, when Allen, Ball & Co. filed their affidavit of illegality, setting forth, among other things, the following grounds:

1st. Because the said execution was issued upon assessmentmade upon the return of deponents of their gross income, derived from purchases, sales, freight, negotiations and general commercial business, between the 8th December, 1849, and 30th April, 1850, which said return was made by an order of the Mayor and Aldermen of the city of Savannah and the hamlets thereof, which said order was illegal.

2d. Because the corporation of the city of Savannah is not authorized by any law of this State, to levy an assessment upon income, and because the said execution has issued to collect a tax or assessment upon the income of deponents, derived from their personal labor.

3d. Because the ordinances and resolution, passed by the Mayor and Aldermen of the city of Savannah and the hamlets thereof, under which said assessment has been made and execution issued, are not in conformity with the Act of 24th of December, 1845, nor the tax law of 1804, nor any other law of this State, nor in conformity with the powers conferred upon the corporation of the city of Savannah by the Act of 1849, or by any other Act of the Legislature of the State of Georgia, but, on the contrary, is in violation of said laws.

4th. Because the ordinances of the city of Savannah, which assess a tax upon income, and under which said execution issued and is proceeding, have been declared to be invalid and void by the highest judicial Courts in this State, and because said execution has been issued under said ordinances thus judicially declared to be inoperative.

5th. Because the ordinance of the Mayor and Aldermen of the city of Savannah and the hamlets thereof, passed the 13th of May, 1850, entitled "An Ordinance declaratory of existing Tax Ordinances, " and by virtue of which said assessment was made, and the said execution issued, was without authority of law, and levied a retrospective tax upon income which had been received and expended prior to its enactment.

This affidavit of illegality being returned to the Mayor and Aldermen on the 29th August, 1850, the same was overruled by them, and the execution and levy ordered to proceed. Whereupon, Allen, Ball & Co., by their counsel, excepted to the saidorder and decision of the Mayor and Aldermen, upon the affidavit of illegality, which exceptions were overruled. Allen, Ball & Co. then presented their petition to the Judge of the Superior Court, in and for the Eastern District, in terms of the law, praying for the writ of certiorari upon the specifications of errors complained of in the said decision and order of the Mayor and Aldermen, and, upon the said petition, the Judge made an order that the Mayor and Aldermen should show cause why the prayer of the petitioners should not be granted, and the writ of certiorari issued. Upon the 20th December, 1850, the writ was made returnable, and cause shown. Whereupon, the Judge refused to grant the same, and maintained that the 4th section of the Act of the Legislature, approved on the 8th December, 1849, in reference to the city of Savannah, and providing "that all and singular the ordinances of said corporation heretofore passed, and now in operation, for the laying and collecting of any tax or assessment, be, and the same are, hereby adopted and confirmed, and declared of full force, " made the ordinance of 1842, under which this tax was imposed, valid and legal, notwithstanding the same had been pronounced null and void by his predecessor of the Eastern Circuit, on the 9th of June, 1849, which judgment was affirmed by the Supreme Court, in the Term of January, 1850. To which decision, Allen, Ball & Co., by their counsel, Law and Bartow, Charlton & Ward, excepted, and now allege the following grounds of error:

1st. Because the Judge decided that the execution issued against the property of Allen, Ball & Co., for the recovery of the tax assessed upon their income, as heretofore set out, was properly issued, and by authority of law.

2d. Because the Judge decided that the Act of the General Assembly of the State of Georgia, passed the 8th day of December, 1849, gave validity to the ordinance of the Mayor and Aldermen of the city of Savannah, passed the 11th day of November, 1842, entitled "An Ordinance amendatory of, and in addition to the Tax Ordinance of the city of Savannah, for raising supplies for the support of a Watch, and other purposes." 3d. Because the Judge decided that the said ordinance, before recited by its title, was in operation at the time of the passing of the Act of the General Assembly, of the 8th day of December, 1849, when, in fact, the said ordinance, so far as it related to the tax therein imposed upon income, had been declared to be inoperative and void by the Judge of the...