State ex rel. Atkins v. Town of Maysville
| Decision Date | 28 May 1879 |
| Docket Number | CASE No. 738. |
| Citation | 12 S.C. 76 |
| Parties | THE STATE, EX REL. JAMES E. ATKINS, v. TOWN OF MAYSVILLE. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
1. A municipal corporation has no power to levy taxes without express authority granted in its charter for that purpose.
2. Query: Can a municipal body be compelled by mandamus to levy a tax to pay judgments recovered against it?
This was an original application to the Supreme Court for a writ of mandamus to compel the corporate authorities of the town of Maysville, a municipal corporation, to levy a tax upon all of the taxable property within the town, to satisfy a judgment recovered by the relator against the town of Maysville, payment of which could not be enforced under the ordinary process of the Circuit Court. The charter of this town is silent upon the subject of taxation.
Mr. J. S. G. Richardson, for relator.
a11. The charter of the town of Maysville is silent upon the subject of taxation; it neither denies the right, nor does it, in terms, confer it. For charter, see Acts of 1874, p. 551.
2. The action in this case was to enforce an obligation, arising not ex contractu but ex delicto.
That the charter is silent as to the power to tax for the purpose of satisfying obligations of that class, can hardly make any difference. Such power is never conferred in express terms; but we submit that in all cases it arises by necessary implication from the mere fact of corporate existence. Damages are, in their nature, penal-are often given for the purpose of punishing the offender-and can it be supposed that the legislature ever intended, in giving corporate existence to a body of men, that they, as an ideal whole, should escape the consequences of its delicts and other offences, whether public or private.
The legislature confers the corporate existence, and by its general laws commands it to commit no trespasses upon the rights of others. The sanction of the general law is the damage imposed for the breach of the command. It would be doing great injustice to the legislature to suppose that it deliberately and purposely intended to throw a shield over the corporation and thereby protect it from the sanctions which the general law imposes.
That the authority of a municipal corporation to impose taxes may arise by implication, is clear from many authorities, a good many of which may be found in the reports of the Supreme Court of the United States, from 23 How. to the present time.
We contend that the right to tax to pay damages recovered in actions ex delicto is never expressly conferred, but arises in all cases by implication; and we would go farther, and if necessary contend-if the legislature should ever, in terms, deny the right-that it would be the duty of the courts to declare the provision void, according to those principles of right and justice which are supposed to underlie all laws, which Lord Coke mentions, and which are set forth and approved by the court in Ham v. McLaws, 1 Bay 97; or it may be under a provision of the constitution, which we will now proceed to notice.
Article IX., Section 8, after providing that the corporate authorities of cities, towns, &c., may be vested with power to assess and collect taxes for corporate purposes, adds, “and the general assembly shall require that all the property, except that heretofore exempted within the limits of municipal corporations, shall be taxed for the payment of debts contracted under the authority of law.” There cannot be a doubt, it seems to me, that every debt contracted by a corporation comes within the protection of this provision of the constitution; for how can a debt exist unless it be contracted by authority of law.
If a corporation should go through the form of contracting a debt, that form would amount to nothing, unless the authority to contract it existed; it would be a mere form and nothing more; or, in other words, there would be no debt. But even in such a case as that, if the corporation should be sued in some high court of general jurisdiction for the purpose of enforcing the supposed obligation, and judgment should be rendered against it, would not the obligation arising out of the judgment be a debt contracted by authority of law? The defendant would certainly be estopped from denying the validity of the original supposed obligation which now, under the authority of the law itself, has become res adjudicata, settling the question for all time to come. But whether this be true or not, as to void or voidable obligations arising in form ex contractu, it must be true as to obligations arising ex delicto. Obligations of this latter class arise from acts which the corporation, from the mere fact of its existence as a corporation, has capacity to commit. If it commits the act, the law imposes the obligation to pay the penalty-that is, the damages which a jury may give, and when an action is brought by the injured party and judgment is recovered therein, the original obligation arising ex delicto merges in the judgment, and a new obligation arising quasi ex contractu is created by the judgment-this new obligation is a debt fixed and liquidated; it is a debt contracted by authority of law, to be enforced under the section of the constitution above cited, by taxes to be assessed and collected for that purpose.
But, if the constitution contained no such provision as that found in Article IX., Section 8, can there be a doubt that the authority as well as the duty to levy and collect taxes for the payment of obligations arising ex delicto, exists by implication. We cannot see how there can be a doubt about it.
To insert in a charter that the corporation shall satisfy its obligations ex delicto by imposing taxes for the purpose, would be to assume that the corporation is likely to incur such obligations. That would hardly be proper, and all such charters are, therefore, very properly silent upon the subject.
Our propositions, then, are-
1. That under the constitution of this state all debts contracted by a municipal corporation, when authorized by the charter, either by express terms or by necessary implication, must be paid by taxation, and that mandamus is the proper remedy to compel the corporation to levy the taxes. See Const., Art. IX., § 8; Com'rs of Knox Co. v. Aspinwall, 24 How. 376;Walkley v. City of Muscatine, 6 Wall. 481.
2. Where the charter does not deny the authority to tax, but merely ignores it, and the corporation is expressly authorized to contract a debt for any special purpose, nothing being said as to how the debt is to be paid, but the right to tax for its payment is not denied, then the debt is contracted by authority of law and must be paid by taxation.
3. Where the authority to contract a debt is conferred upon the corporation, but the authority to tax for its payment is expressly denied, as a general rule it may be said the debt would be null and void. Loan Association v. Topeka, 20 Wall. 655. But in this state, under the constitution, (Art. IX., § 8,) it would seem not that the debt contracted by the corporation, but that the denial of the authority to tax, is void.
4. Obligations arising ex delicto stand upon a very different footing from those arising ex contractu. They can only be enforced, in the first instance, by an action at law. When judgment is recovered and the damages fixed and ascertained by the verdict, the obligation arising ex delicto is merged in the judgment, it becomes, in the language of the ancient jurists, an obligation arising quasi ex contractu-an obligation to be enforced, it may be, in the first instance, by execution against property under the judgment; but certainly by equal and just taxation, as directed by the constitution, and where neither the act of the legislature nor an ordinance of...
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