State ex rel. Hibernian Society, of Charleston v. Addison
| Decision Date | 08 August 1871 |
| Parties | THE STATE Ex Rel. HIBERNIAN SOCIETY, OF CHARLESTON, RESPONDENTS, v. GEORGE ADDISON, CITY SHERIFF, APPELLANT. THE STATE Ex Rel. THE GRAND LODGE OF ANCIENT FREE MASONS OF SOUTH CAROLINA, RESPONDENTS, v. GEORGE ADDISON, CITY SHERIFF, APPELLANT. |
| Court | South Carolina Supreme Court |
An Ordinance of the City Council of Charleston, passed in June 1793, exempted " all and every ** charitable society from payment of any City taxes now due, or to become due." The Hibernian Society, of Charleston, and the Grand Lodge of Ancient Free Masons, the Relators, became bodies corporate-the first named in 1805, and the last named in 1818-and their real estate consisted of the buildings and premises where they held their meetings. The annual Tax Ordinances from 1844 to 1851, inclusive, expressly exempted from taxation such buildings and premises of charitable societies, but not the buildings on such lands held by individuals under a lease for a term of five years. After the year 1851, and until the year 1869, inclusive, the annual tax ordinances did not, in express terms, exempt such buildings and premises, but imposed taxes on every house, building & c., " including every building and improvement on lands under a lease for a term of five or more years, from a ** charitable society." The buildings and premises of the relators were never assessed for taxation until the year 1868, when, for the first time, they were so assessed.
Held , That payment of taxes for the year 1868 could not be enforced; that the City authorities, by excluding the property of the relators from taxation for so long a period of time, had themselves construed the Ordinance of 1793 as including the relators within its terms, as charitable societies; and that it was too late for such authorities now to contend against their own construction, as evinced by long usage-the ordinance still remaining of force.
Held, further , That the State Constitution of April, 1868, having declared the property of all societies, with certain exceptions which do not include the re ators, subject to municipal taxation, it became the duty of the City Council to impose taxes on the relators, and, therefore, that the Ordinance of 1869, though identical in its terms with that of 1868, must be construed as authorizing the imposition of taxes upon the relators, which had also been assessed upon their property for that year.
BEFORE MELTON, J., AT CHAMBERS, COLUMBIA, JULY AND NOVEMBER, 1870.
These were suggestions for writs of prohibition to restrain the City Sheriff of Charleston from enforcing certain tax executions against the relators for taxes assessed for the years 1868, 1869 and 1870.
The facts are stated in the judgment of the Circuit Judge, below given, and the opinion of the Supreme Court delivered by the Chief Justice.
The case in which the Grand Lodge of Ancient Free Masons were the relators was heard in July, 1870, and His Honor ordered a writ to issue prohibiting the defendant, the City Sheriff of Charleston, from enforcing the executions against the relators for the taxes charged for the years 1868 and 1869.
The case in which the Hibernian Society was the relator was heard in November, 1870, and His Honor the Circuit Judge filed his judgment, as follows:
The office of Circuit Judge for the First Circuit being vacant, this case was brought before me on the 22d of August last, by suggestion, praying for a writ prohibiting the defendant from collecting taxes charged against the relator by the City Council of Charleston for the years 1868, 1869 and 1870. A rule was thereupon issued against the defendant, returnable on the 13th of October, requiring him to show cause before me why the prayer should not be granted. The return was made accordingly, and the cause submitted without argument.
The facts, as made out by the depositions filed with the suggestion, are these: That the Hibernian Society was originally founded in 1801, and on the 17th of March of that year a constitution and by-laws for the government of its members was adopted. The primary and chief object of the organization, as declared in the constitution, was to aid distressed emigrants from Ireland, and to relieve decayed members and the distressed widows and orphans of members; that the society was incorporated on the 19th day of December, 1805, and its charter has been from time to time renewed; that from its foundation to the present time, the society has been employed in doing works of charity, extending the sphere of its benevolence beyond the limits of the constitution, appropriating all its revenues in fulfillment of the objects of its foundation. The property of the society consists of a hall and grounds on Meeting street, in the City of Charleston, purchased with a fund raised by donations from members, which hall has been rented out from time to time, and the rents expended in works of charity and benevolence. This property has always been exempt from taxation, and no attempt was ever made, either by State or other authority, to impose a tax upon it until the 17th of June, 1868, when the society was called upon and forced to make a return of this specific property, which was done under protest.
By an Ordinance, passed on the 29th of June, 1793, the City Council of Charleston exempted the South Carolina Society, and all other religious and charitable societies, from any tax " heretofore due, or that may be due to the City." (See Digest City Ordinances from 1783 to 1844, p. 234.) This ordinance was continued in full force, year after year, until repealed by the ordinance of March, 1870; and under its operation the Hibernian Society was exempt from taxation. The first clause in all the ordinances to raise supplies passed by the city from 1800 to 1870, is precisely the same in the classification and enumeration of the subjects of taxation. The first Section of the ordinance of 1868 reads in these words:
" That a tax for the sums, and in the manner hereinafter mentioned, shall be raised and paid into the treasury of the city, for the use and service thereof; that is to say, two dollars in every one hundred dollars of the value of every house, building lot, wharf, or other landed estate, including every building and improvement on lands, under a lease for a term of five or more years, from a religious, charitable or literary society, or under any building lease."
The same words, with the exception of a change in the numerals, are used in the ordinance of 1844, and in every other previous ordinance that has been found. The ordinance of 1869 reads in the same way.
I do not regard the terms of this enactment to be in conflict with the ordinance of 1793, but, on the contrary, they are rather confirmatory of the exemptions therein declared. The inclusion of every building and improvement on land under a lease, for a term of five or more years, from a charitable society, excludes the property of such society not under such lease, and preserves the exemption of what belongs to the society proper. The maxim expressio unius est exclusio alterius applies here. It was brought to my attention, in the investigation of the case, that the ordinance of 1868, which was passed under the administration of the Hon. P. C. Gaillard, Mayor, was not enforced in this particular until after he and a majority of the Council were removed by military orders, and his place filled, first by General Burns, and a few days later by Major Cogswell. It must have been under, and by the direction of this officer, acting as Mayor, that the City Assessor included in his assessment the property of this and other charitable societies. It was so included in error, and the tax cannot be maintained upon a proper legal interpretation of the ordinance.
It was in a similar way that the City Assessor, under the ordinance of 1869, earnestly attempted to subject the property of this society to taxation. Neither of these ordinances gave to the City Assessor the legal right to levy a tax on the property exempted by the ordinance of 1793; the ordinances of 1868 and 1869, instead of repealing the exemption of 1793, extended and confirmed it. The Constitution of 1868 did not of itself render the property liable to taxation, or repeal any existing exemption. It simply declared as the fundamental law the principle which should govern legislation on the subject of taxation. The provisions are all prospective. Section 1, of Article 9, reads: " The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation." Section 5 of the same Article reads: " It shall be the duty of the General Assembly to enact laws for the exemption from taxation of any public schools, etc., but property of associations and societies, although connected with charitable objects, shall not be exempt from State, County or Municipal taxation." In Section 8, Article 9, it is provided that
In 1868 the General Assembly passed an Act providing for the assessment and taxation of property, applying, however solely to State taxation, and containing no provisions for municipal taxation. The authority to provide for a uniform and equal rate of taxation by municipal bodies was unquestionably given to the General Assembly by the...
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