Hill v. City Council of Abbeville

• Citation: 38 S.E. 11,59 S.C. 396
• Parties: HILL et al. v. CITY COUNCIL OF ABBEVILLE.
• Decision Date: 09 March 1901
• Court: United States State Supreme Court of South Carolina

38 S.E. 11

59 S.C. 396

HILL et al. v. CITY COUNCIL OF ABBEVILLE.

Supreme Court of South Carolina

March 9, 1901

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

Injunction by R. M. Hill and others against the city council of Abbeville to restrain enforcement of certain ordinance. From a judgment in favor of the defendant, plaintiffs appeal. Affirmed.

Plaintiffs' petition is as follows:

"The petition of the above-named petitioners respectfully shows to the court: (1) That heretofore, to wit on the 26th day of September, 1899, the plaintiff above named, R. M. Hill, filed his complaint against the city council of Abbeville, the above-named defendant, on behalf of the plaintiff and all others similarly affected by the ordinance named in said complaint, and exhibited therewith as a part thereof, asking for an injunction against the defendant to prevent them from enforcing said ordinance, on the grounds set out in said complaint and in the amended complaint therein, which was filed on the ___ day of October 1899, reference to which complaints are prayed as often as may be necessary. (2) That your petitioners are citizens of Abbeville county, South Carolina, and are engaged in business in the city of Abbeville, and are affected by the ordinance referred to in the complaint of the said R. M. Hill, which is known as the 'License Ordinance.' (3) That the said city of Abbeville is a municipal corporation, duly chartered by the legislature of this state, and it is provided that the mayor and aldermen collectively shall be designated as the city council of Abbeville, and may sue and be sued, etc. (4) That said ordinance is utterly unconstitutional, illegal null, and void, in that it is levied for the sole purpose of raising revenue to meet the current expenses of the city of Abbeville, as said ordinance so declares, and it imposes a tax upon certain citizens of the city of Abbeville, and upon certain citizens outside of said city, but who occasionally come here for the purpose of disposing of their produce, which is not uniform either in respect to persons or property; said ordinance imposing a tax upon your petitioner J. L. McMillan, as a manufacturer of brick, of fifteen dollars, when he has a capital invested of about four hundred dollars, whereas said ordinance only imposes a tax upon the Abbeville Cotton-Mill Company, which is engaged in manufacturing cloth, of seventy five dollars, when they have a capital invested of five hundred thousand dollars; putting a tax upon your petitioners T. H. Maxwell and R. B. Haddon of fifteen dollars for butchering and selling meat, whereas merchants engaged in other lines of merchandising are only taxed one dollar upon the first thousand dollars of goods sold, and fifty cents upon each subsequent thousand dollars sold; putting a tax of fifteen dollars upon your petitioner J. L. Simpson, as an agent for sewing machines, and taxing other agents for retailing goods only ten dollars, and charging agents for merchant tailors only ten dollars; putting a license tax of fifteen dollars upon your petitioners J. W. McKee and E. H. Richey for selling meat in the city of Abbeville, although they are farmers and stock raisers, do not reside in the city of Abbeville, and have a right to sell their products in said city; putting a tax upon your petitioner J. L. Hill of five dollars for weighing cotton, and yet allowing the cotton mill to weigh all the cotton they may choose to weigh, without any license whatever; putting a tax of ten dollars upon your petitioner J. L. Roche for buying cotton seed for a nonresident of this state, to wit, the Charlotte Oil Mill, which is contrary to the interstate commerce act and the constitution of the United States; putting a tax of five dollars upon your petitioner J. A. Dickson for practicing dentistry, when he is licensed under the laws of the state of South Carolina, and is authorized to practice dentistry anywhere in the state; putting a tax of five dollars upon your petitioner J. K. Millford, as a photographer, and also as a boarding house keeper, thus putting a double tax upon him; putting a tax of three dollars each upon your petitioners J. W. Beagles, Alfred Foster, and Robert Watt, as blacksmiths, and not putting any tax whatever upon carpenters; putting a tax of three dollars each upon your petitioners Wade Sloan. Russel Robinson, and Chaney Jones, and putting no tax at all upon carpenters or brick masons; putting a tax of five dollars upon your petitioner H. D. Reese, for running a shop to repair jewelry, and only imposing a tax of three dollars upon other repair shops; putting a tax of three dollars upon your petitioner Mack Brooks for repairing buggies and wagons, and charging bicycle repair shops nothing; putting a tax upon your petitioners C. A. Smith and W. F. Smith of five dollars each, as contractors under five hundred dollars, and putting no tax upon other parties building houses not under contract; putting a tax of five dollars upon your petitioner J. D. Linton, as a contractor, which is subject to the same objection as set forth in regard to C. A. Smith and W. F. Smith. Said ordinance is also null and void and unconstitutional in that said license tax is not graduated as required by the constitution of this state, and is also void, in that it is not uniform in its operation, putting a heavy tax upon certain classes of occupations therein named, and putting no tax upon other similar occupations, and is also unconstitutional, null, and void, in that it is not based upon the value of the property of your petitioners, but is an arbitrary tax, and is also null and void in that it is not authorized by the charter of the city of Abbeville, or by any act of the legislature of this state. (5) That said city council of Abbeville is attempting to enforce said ordinance against your petitioners, having this day summoned your petitioner J. L. Simpson to appear before the council to show cause why he had not paid said tax, and threatening him and all your petitioners with fine and imprisonment if they fail to pay said tax; that irreparable injury will be done your petitioners unless said defendant is enjoined, as they have no remedy against the defendant for a false arrest or imprisonment, and putting your petitioners to the trouble and annoyance of continued and expensive litigation, and forcing them to have a multiplicity of suits to protect their right and liberty; that your petitioners are desirous of being allowed to come in as parties to the above-named action, and are willing to contribute their share to the expenses of this action. Wherefore your petitioners pray that they may be allowed to come in as parties to said action, and that the injunction heretofore granted be extended to them."

The following amended complaint for relief was also filed:

"The plaintiff above named, by this his amended complaint, complaining on behalf of himself and all others similarly situated, and affected by the ordinance herein referred to, alleges: (1) That the defendant, the city council of Abbeville, is a body politic and corporate, and as such can sue and be sued. (2) That the plaintiff is a citizen and taxpayer of the city of Abbeville, in the county and state aforesaid, and is engaged in the business of general merchandising and buying cotton for Charles E. Johnson & Co., who reside in the city of Raleigh, in the state of North Carolina. (3) That this action is brought on behalf of this plaintiff and all others similarly situated, and affected by the ordinance hereinafter referred to, who shall in due time come into this action and have themselves made parties, and contribute to the expenses of this suit. (4) That on the 13th day of June, 1899, the said city council of Abbeville passed and ratified an ordinance known as the 'License Ordinance,' a copy of which is hereto attached as a part of this complaint, and marked 'Exhibit A.' (5) That said ordinance undertakes to impose upon this plaintiff and other business men of Abbeville a direct license tax, which, under the charter of the city of Abbeville, they have no right to do; said charter only providing, in section 8, for imposing a license upon certain occupations therein named, and making no provision for imposing a license upon this plaintiff, or upon any other business or occupation, other than those named in section 8 of said charter. (6) That said license ordinance is illegal, oppressive, and absolutely null and void, and is unconstitutional, in that it is levied for the sole purpose of raising revenue to meet the current expenses of the city, as said ordinance so declares, and it imposes a tax upon certain citizens of the city of Abbeville, which is not uniform, either in respect to persons or property; said ordinance putting a tax of ten dollars upon this plaintiff, as a cotton buyer, and at the same time exempting cotton buyers who are buying for local mills also putting a tax of ten dollars on all cotton-seed buyers, except for local mills, which are exempt; putting a tax of ten dollars upon druggists and undertakers, and allowing other merchants to do business by paying one dollar upon the first one thousand dollars worth of goods sold, and fifty cents upon each subsequent thousand dollars worth sold; putting a tax of five dollars upon lawyers whose income is not over one thousand dollars, and a tax of seven dollars and fifty cents upon those lawyers whose income is over one and less than two thousand dollars; putting a tax of fifty dollars upon each bank, when their total capital only amounts to about seventy-five thousand dollars each, and only charging the Abbeville Cotton Mill seventy-five dollars, when their capital is five hundred thousand dollars; putting a tax of one

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