Charleston v. Same

• Citation: 16 S.C. 47
• Decision Date: 27 September 1881
• Docket Number: CASE No. 1087.
• Parties: CHARLESTON v. OLIVER. SAME v. SAME.
• Court: United States State Supreme Court of South Carolina

16 S.C. 47

CHARLESTON

v.OLIVER.

SAME

v.SAME.

CASE No. 1087.

Supreme Court of South Carolina.

Sept. 27th, 1881.

1. The City Court of Charleston, under the authority of an ordinance of that city, may give judgment for the amount of a license tax and penalty, or imprisonment for thirty days, in case of non-payment.

2. State v. Hayne, 4 S. C. 403, and State v. Columbia, 6 Id. 1, recognized and followed.

3. Words and phrases in a constitution should be interpreted according to their ordinary and popular meaning, unless the context requires a technical sense.

4. The provision in Article I., Section 20 of the constitution, that “no person shall be imprisoned for debt, except in cases of fraud,” has no application to taxes, which are not a debt within the meaning of this section.

5. Power to a municipal corporation to make assessments on its inhabitants, or those who hold taxable property within the same, for the safety, convenience, benefit and advantage of the said city, does not authorize the imposition by such municipality of a license tax on business.

6. A statute, authorizing a municipal corporation to require payment for licenses from persons engaged in any calling, business or profession within its limits, does not violate Articles I., VIII. or IX. of the constitution of the United States, or Article I., Section 12, or Article II., Section 33, of the constitution of this State.

7. But such authority being conferred by a section of a statute whose title is “An act to regulate the assessment and taxation of personal property in the city of Charleston,” such statute violates the constitutional provision contained in Article II., Section 20, that every act shall relate to but one subject, and that shall be expressed in the title, and, therefore, this section of the act had not the force of law.

Before PRINGLE, Recorder, Charleston, January, 1881.

These were two actions in the City Court of Charleston, brought by the city council of Charleston against W. J. Oliver to recover license fees, in the one case for publishing a daily paper, and in the other for job printing, and, also, in both cases, the penalties for non-payment, the complaint also demanding imprisonment for thirty days if the judgment was not paid. Defendant demurred and answered as follows:

First. The defendant above named demurs to this complaint, because:

1. It is a criminal action, and not cognizable by complaint; and,

2. Criminal and civil proceedings cannot be combined in the same form of action as are set forth in the complaint; and,

3. The plaintiff hath no right to pass the ordinance of 17th December, 1879; and,

4. No assessment or notification thereof has been or is alleged to have been given to defendant; and,

5. A license is not a tax in Charleston city; and,

6. There is no imprisonment for debt in this State.

Second. The defendant, for answer to said complaint, says:

That he never contracted with the plaintiff touching a license.

He prays to be hence dismissed with his costs, &c.

The judgment of the court, rendered by Hon. W. Alston Pringle, recorder, was as follows:

The following statement of the law and facts covers the ground taken in both demurrers and the answers:

The allegation that the defendant is indebted to the plaintiff is a sufficient allegation that neither the license nor the penalty has been paid.

The legislature, by the act of 1st March, 1870, authorized the city council of Charleston to require payment for licenses from persons engaged in business in the said city. By another act of the same date, the legislature authorized the city council to impose imprisonment in the alternative for all violations of the city ordinances.

The ordinance of the city council, under which the defendant is liable for the payment of the licenses and penalties for which these suits are brought, imposes an imprisonment of not more than thirty days as an alternative in default of payment. There is no provision in the ordinances limiting the requirement for a license to persons employing more than one hand.

It has been already decided that the licenses required by the ordinances of the city council of Charleston are taxes. Cooley Tax. 13-14.

Under this authority the defendant is liable for the amount of the licenses and the penalties, and, in default of payment, to an imprisonment of thirty days in each case, and the judgment should be so entered up.

Defendant appealed, in both cases, to this court, upon the following grounds:

1. Because, the demurrer should have been sustained for the reasons set forth therein, which are re-asserted.

2. Because the act of 1870, authorizing the city to require payment for licenses for “all trades and professions,” is unconstitutional under Sections 20 and 33 of Article II., and Section 12 of Article I. of the State constitution, and Section 10 of Article I., Articles I., VIII. and IX. of the United States constitution.

3. Because the ordinance of 17th of December, 1879, is ultra vires, in its prohibitory clause, of the act of 1870, which contains no prohibition; is illegal in its requirements for license for want of any prohibitory act, and is unconstitutional under the foregoing sections of the State and United States constitutions, as well as under Section 20, Article I., of the State constitution.

4. Because, “All taxes ** shall be considered and held as a debt payable to the city,” by the fifty-second section of the city ordinance of 1870, and the demand sued for is styled “a debt” in the complaint.

5. Because the demand is not for taxes, but for penalties, which are “monetary obligations.”

6. Because the act of 1st March, 1870, relates to the police powers of the city, and not to taxation, and if it relates to the latter it is unconstitutional, under the foregoing sections of the State and United States constitutions.

Mr. W. M. Thomas, for appellant.

Mr. G. D. Bryan, contra.

The opinion of the court was delivered by

MCIVER, A. J.

These were proceedings instituted in the City Court of Charleston, for alleged violations of one of the ordinances of that city; one for carrying on the business of publishing a daily newspaper without a license, and the other for carrying on the business of a job printer without a license. The recorder held that the defendant was liable in each of the cases “for the amount of the license and penalty, and, in default of payment, to an imprisonment of thirty days,” and directed that judgment be so entered up. From these judgments the defendant appealed on various grounds, which are set out in the “case,” by which questions are raised: 1st. As to the form of the action. 2d. As to the constitutionality of the act of 1st March, 1870, conferring power upon the city council to require the licenses in question. 3d. As to the power of the city council to pass the ordinance requiring the licenses. 4th. As to the right to impose imprisonment as a penalty for the non-payment of a license tax. 5th. As to the necessity for notice to the defendant of the imposition of the tax.

The constitution, Article IX., Section 8, provides that “the corporate authorities of counties, townships, school districts, cities, towns and villages, may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.”

By Section 7 of an act entitled “An act to regulate the assessment and taxation of personal property in the city of Charleston,” approved 1st March, 1870, (14 Stat. 409,) it is provided that “the city council of Charleston is hereby authorized to require the payment of such sum or sums of money, not exceeding five hundred dollars, for license or licenses, as in their judgment be just and wise, by any person engaged or intending to be engaged in any calling, business or profession,” &c.

By another act entitled “An act relative to the power of the city council of Charleston, to impose punishment for the violation of city ordinances,” approved March 1st, 1870, (14 Stat. 382,) the city council of Charleston is “authorized to impose, for the violation of ordinances, imprisonment in the workhouse or jail, not exceeding thirty days, in addition or in the alternativeto penalties now authorized to be imposed by ordinances of said city.” In pursuance of these acts, the city council of Charleston passed an ordinance on the 17th December, 1879, by which all persons engaged in the occupations therein named, among which are those of publishing a daily newspaper and job printing, are required to take out a license therefor, and providing that any person who shall exercise any of the callings, or carry on any of the occupations named, without taking out such license, “shall, besides being liable to the payment for the license, be subject to a penalty of twenty per cent. of the amount of such license, to be sued for and collected in the City Court, or any other court of competent jurisdiction, or to imprisonment, not exceeding thirty days, as may be adjudged by the recorder.”

The objection to the form of the proceeding, we regard as untenable. By Section 3 of Chapter 106, Gen. Stat. 498, the City Court is invested with jurisdiction of all causes arising under the ordinances of the city council of Charleston; and where, as in this case, no mode of enforcement is prescribed by the charter, we see no reason why the mode pursued in this case is not sufficient. 2 Dill. Mun. Corp., § 344.

The next inquiry is as to the constitutionality of the act of 1870. The general question of the power of the legislature to impose a license tax, has been conclusively settled in the case of the State v. Hayne, 4 S. C. 403, where most of the constitutional objections raised in this case were considered and disposed of. This case was followed by the case of the State v. Columbia, 6 S. C. 1, in which it was held that the legislature could empower a municipal corporation to impose a license tax on persons...