City Council. Of Charleston v. Ashley Phosphate Co

• Decision Date: 12 November 1891
• Citation: 13 S.E. 845,34 S.C. 541
• Parties: City Council. of Charleston. v. Ashley Phosphate Co., (two cases.)
• Court: South Carolina Supreme Court

13 S.E. 845

34 S.C. 541

City Council. of Charleston.

v.Ashley Phosphate Co., (two cases.)

Supreme Court of South Carolina.

Nov. 12, 1891.

License from City — Action to Enforce Payment—Pleading of Ordinance—Judicial Notice.

1. Act S. C. 1881 (17 St. 582) authorizes the city council of Charleston to require the payment of certain licenses by persons engaged in business in said city, and to pass such ordinances as are necessary to carry the act into effect. Held, that a complaint in an action to enforce the payment of such licenses, alleging that the city council, for the purpose of raising a revenue, and in the exorcise of the taxing power, passed an ordinance entitled "An ordinance to regulate licenses for the year 1889, " whereby, inter alia, it was provided "that certain persons should obtain licenses, and should pay therefor a certain sum, but not alleging that the said ordinance contained any provision authorizing the enforcement of the payment of such licenses, was insufficient, for the reason that the courts do not take judicial notice of city ordinances unless directed by charter or statute to do so, and such ordinances, therefore, should be set out in the pleadings, if not in hæc verba, at least in substance.

2. The city council of Charleston, having passed an ordinance under said act of 1881 to reg ulate licenses, providing that, if any person therein named should refuse to takeout a license, he should be liable to a penalty, but containing no provision to the effect that he might also be required to pay the license by an action for that purpose, is confined to the mode therein prescribed for enforcing payment of such licenses, and cannot resort to any other.

Appeal from common pleas circuit court of Charleston county; James Aldrich, Judge.

This comprises two actions, brought by the city council of Charleston against the Ashley Phosphate Company to recover the amount of certain license taxes for the years 1889 and 1890. The complaint in the action for the license tax of 18S9 is as follows: "Plaintiffs allege: (1) That they are a corporation duly chartered under and by the laws of the state of South Carolina, pursuant to an act of the general assembly of the said state entitled 'An act to incorporate Charleston, ' and the acts amendatory thereof. (2) That under and by virtue of an act of the general assembly of the said state entitled 'An act to authorize the city council of Charleston to impose a license tax on all persons engaged in any business, trade, or profession in the city of Charleston, ' approved the 17th December, 1881, the plaintiffs, on the 27th day of December, 1888, for the purpose of raising a revenue, and in exercise of the taxing power, passed an ordinance en titled 'An ordinance to regulate licenses for the year 1889, ' whereby, inter alia, it is provided that phosphate rock mining or manufacturing companies or agencies, engaged or intending to engage in business In said city, shall, on or before the 20th day of January, A. D. 1889, obtain each a license therefor, and shall be required each to pay for the same the sum of five hundred ($500) dollars. (3) That at the time of the passage of the said ordinance the defendant was, and now is, a corporation duly created by and under the laws of said state for the purpose of digging and mining for phosphate rock, marl, lime, and minerals, and of manufacturing the same, and such other minerals or materials as they may purchase or acquire, into chemicals, acids, and fertilizers, and of carrying on trade therein. (4) That since the 1st day of January, 1889, the defendant, being a phosphate rock manufacturing company, as aforesaid, has carried on, and is now carrying on, the business of selling fertilizers in Charleston, aforesaid, having an office on Brown's wharf in said city, for a license to do which there was due and payable to plaintiffs the sum of five hundred ($500) dollars, under the ordinance aforesaid; but at no time during the said year has the said company had, nor has it now, a license to conduct the said business as required by law. (5) That no part of the said five hundred ($500) dollars due and payable by the defendant to the plaintiffs as aforesaid has been paid. "Wherefore plaintiffs demand judgment against the defendant for the sum of five hundred dollars, and the costs and disbursements of this action." The complaint in the action for the license tax of 1890 is the same as the above, except that the ordinance for that year is annexedthereto. A demurrer was interposed to each complaint, and overruled. Defendants appeal. Reversed.

John F. Ficken and Mitchell & Smith, for appellant.

Charles Inglesby, Corp. Counsel, for respondent.

McIver, J. These two cases, though not involving all of the same questions, turning, as they do, in our judgment, upon the same question, may be considered together. Both were brought to recover the amount of certain license taxes, which plaintiff claimed defendant was liable for under an ordinance passed by the city council of Charleston, which will be more particularly referred to hereinafter. In each of the cases a demurrer was interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and in each case the demurrer was overruled, and the defendant appeals, raising the question common to both of the cases, though there are other questions raised in the last case which, under the view we take of the demurrer, cannot properly arise, and will not therefore be considered. We do not deem it necessary to set out in detail the several allegations contained in the complaints, though copies thereof should be inserted in the report of the case, for it is sufficient to say that in both of the cases the actions were brought to recover the sums which the ordinance, incorporated in the complaint in the second case, or, rather, made a part thereof as an exhibit, required persons or corporations engaging in the business in which it is claimed defendant was engaged to pay for a license to carry on such business within the city of Charleston. It is true that the ordinance imposing the license tax sued for in the first action is not set out in the "case, " but the allegation of the complaint in that action shows that by such ordinance persons engaging in the business in which it is alleged defendant was engaged were required to take out a license, and pay therefor the sum of $500; and the further allegation is made that defendant has neither taken out such license nor paid the sum required for that purpose. But there is no allegation that plaintiff has been authorized, either by statute or ordinance, to enforce the payment of such sum by suit, and no such statute has been brought to our attention; nor is there any allegation in the complaint that no other mode has been provided, either by statute or ordinance, to enforce such payment. In the second case, however, brought to recover the amount of the license tax for the year 1890, the ordinance imposing that tax, which is made a part of the complaint, does show that another remedy has been provided, for the third section contains this provision: ...