State v. Columbia
| Decision Date | 23 September 1874 |
| Citation | 6 S.C. 1 |
| Parties | STATE v. COLUMBIA. |
| Court | South Carolina Supreme Court |
BEFORE COOKE, J., AT COLUMBIA, AUGUST, 1873.
This was a suggestion by the Citizens' Savings Bank and the South Carolina Bank and Trust Company, as relators, against the city of Columbia and Jesse E. Dent, Sheriff of Richland County, praying for a writ of prohibition to restrain the enforcement of certain executions issued by the city against the relators for the collection of license fees.
The case was this: By an Act of the Legislature, approved March 2, 1871, (14 Stat. 572,) the Mayor and Aldermen of the city of Columbia are " empowered to require all persons companies and corporations now engaged, or who may hereafter become engaged, in business or avocations of any kind whatever, within the limits of the city of Columbia, to take out a license from the Mayor and Aldermen of the said city who are hereby authorized to impose a reasonable charge or tax for the conduct of the same." And under the power thus conferred, the city of Columbia, on the 23d December 1872, passed an ordinance entitled " An ordinance to regulate licenses for the year 1873," whereby it was declared " that every person, firm, company or corporation engaged in, or intending to be engaged in, any trade, business or profession hereinafter mentioned shall obtain a license therefor in manner provided; " and then, after declaring that every such person, firm, & c., shall register his or her name or style, imposing a penalty of $40 for failure to register, and prescribing the manner of obtaining licenses, it proceeded to fix the rates to be paid for the different classes of licenses in manner following: " Astrologers and clairvoyants, $100; apothecaries, retail, $25; architects or surveyors, $25; auctioneers, $100; ****** attorneys at law, $25; banks and bankers, $200; billiard, bagatelle or other gaming tables, for the first table, $50, and for every additional table in the same establishment, $25," and so on, naming some eighty or ninety trades, professions and avocations, and fixing the sum to be paid for each distinct class,-" dealers, retail, in goods, wares and merchandise" being classified according to the amounts of their annual sales, and " boarding houses" and " hotels" according to the number of boarders or guests they could accommodate.
The relators are banks chartered by the State and doing business within the limits of the city of Columbia. They alleged that they had not paid the license fees of $200 prescribed by the ordinance for " banks and bankers; " that executions therefor had been issued and placed in the hands of the Sheriff, who threatens to levy the amounts thereof by distress and sale of relators' goods and chattels. The grounds of the application for a writ of prohibition are stated in the judgment of this Court.
The case was heard by His Honor Judge Cooke, (the Judge of the Circuit being absent from the State,) who made an order that a writ of prohibition do issue in accordance with the prayer of the suggestion.
The city of Columbia appealed.
Tradewell , City Attorney, with whom was C. D. Melton , for appellant, cited Fletcher vs. Peck , 6 Cr. 87; Ex Parte McCullom , 1 Cowen 564; Morris vs. People , 3 Denis 381; Cohen vs. Hoff , 1 Tr. 637; License Cases , 5 Wall 471; Hodgson vs. New Orleans , 21 La. Ann., 301; Meriam vs. New Orleans , 14 La. Ann., 318; Fletcher vs. Oliver , 25 Ark. 289; Bruce vs. Hodges , 14 Rich. 256; State vs. Hayne , 4 S. C., 403; Dillon on Mun. Corp., §§ 291, 587, 594, 651, 653, 656; Cooley on Con. Lim., 479, 390; Mason vs. Trustees , 4 Bush, Ky., 406; Gilkeson vs. Justices , 13 Grat 577; Gilman vs. Sheboygan , 2 Black. 510; Nashville vs. Althorp , 5 Cold. 554; Slaughter vs. Commonwealth , 13 Grat. 767; Knowlton vs. Supervisors , 9 Wis. 410; Con., Art. IX, § 8, and other parts of the Constitution.
Bachman & Youmans , contra, cited 3 Kent 360; Pope vs. Commissioners , 12 Rich. 410; Dillon on Mun. Corp., §§ 610, 284, 302, 605, 291, 609; Cooley on Con. Lim., 198, 200, 203, 211, 514, 518, 502; 9 Pick. 414; 4 Mass. 145, 473; 3 Story 69; Savannah vs. Hartridge , 8 Ga. 23; Kyle vs. Malin , 8 Ind. 34, 37; Richmond vs. Daniel , 14 Grat. 387; Railroad vs. Alexander , 17 Grat. 176; Abb. Dig. Law of Corp., 492; Thorpe vs. Railroad , 27 Vt. 149; Bank vs. Hines , 3 Ohio 1; Weeks vs. Milwaukie , 10 Wis. 282; Sanderson vs. Cross , 10 Wis. 282; Ang. & A. on Corp., §§ 377, 378; Savannah vs. Charleton , 36 Ga. 460; Ex Parte Garland , 4 Wall 379; Paxon vs. Sweet , 1 Green. 196; Commissioners vs. Gas Company , 12 Penn. 318; Kip vs. Patterson , 2 Dutch 298; Broom's Leg. Max., 278; 23 N. H., 430; Ashville vs. Means , 7 Ired. 406; Mays vs. Cincinnati , 10 Ohio 273; Covington vs. Southgate , 15 B. Mon., 498; Baker vs. Cincinnati , 11 Ohio 504; McCullough vs. Daniel , Harp. Eq., 255; Walker vs. Pinson , 12 Rich. Eq., 452, and other cases, and the Articles and Sections of the Constitution and Acts of Assembly relating to the case.
The relators allege that the ordinance of the city of Columbia imposing upon them, as bankers, payment of a sum of money by way of a license is invalid, and they ask that the respondents be restrained from enforcing such ordinance by a writ of prohibition issued out of this Court. The propositions advanced by the relators in support of this position resolve themselves into the following:
1. That, as an incorporated company, transacting banking business under a charter from the Legislature, they are not liable to pay any corporate tax for carrying on such business.
2. That they have paid the tax imposed by the Act entitled " An Act to provide for a general license law," approved March 13, 1872.
3. That the ordinance, considered as a means of raising revenue, is not " " taxation" in the sense of the enactment conferring power to tax on the city corporation.
4. That, considered as a means of imposing a tax, such tax is not equal and uniform in respect to persons and property.
5. That the charge imposed is not a reasonable charge or tax.
In order to determine the force of these various propositions, it is requisite to inquire: First . Whether the enactment of the ordinance in question is to be regarded as the exercise of the power of imposing taxes; and, Second . Whether the charges imposed on the relators by the ordinance is equal and uniform in respect of persons and property.
The authority under which the respondents acted in the passage of the ordinance in question is contained in Section 8, Article IX, of the Constitution, which is as follows: " 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 tax to be uniform in respect to persons and property within the jurisdiction of the body imposing the same; " and in Section 8 of an Act amending the charter of Columbia, approved March 2, 1871, (14 Stat. 572,) as follows: " That the said Mayor and Aldermen are hereby empowered to require all persons, companies and corporations now engaged, or who hereafter may be engaged, in business or avocations of any kind whatever, within the limits of the city of Columbia, to take out a license from the Mayor and Aldermen of the said city, who are hereby authorized to impose a reasonable charge or tax for the conduct of the same."
It is evident that the ordinance in question imposing a tax by way of license upon the relators on account of their business as bankers is in pursuance of the authority conferred by the statute just quoted, unless the relators establish their proposition that it is not reasonable. This proposition will be hereafter examined; and, in the meantime, the reasonableness of the charge will be assumed for the purpose of examining the other branches of the argument.
The question before us, then, is one of conflict between the grant of authority by the Act and the provisions of the Constitution already quoted.
We come now to the question whether the enactment of the ordinance is to be regarded as the exercise of the power of imposing taxes. The constitutional authority extends, in terms, to power " to assess and collect taxes for corporate purposes." If the charge imposed cannot be regarded as a tax in the sense in which that term is employed in the Constitution, then the respondents would have to look to some other source of authority for their action than this Section of the Constitution.
The relators allege that the charge imposed upon them cannot be considered a tax in the sense of the Constitution. They contend that power to enact a license and impose a license fee necessarily implies a right to control the business in respect of which the license fee is demanded, either by prohibiting its exercise or permitting such exercise only upon conditions imposed according to the discretion of the city authorities.
Their proposition that the authority under which they conduct their business is derived directly from the Legislature through their charter of incorporation depends for its force upon the idea just presented of the nature of licenses and license fees.
Strictly speaking, a license of a trade or calling by a municipal corporation is referable to the police power possessed by such bodies, and implies authority to prohibit the exercise of such business, except upon conditions having reference to some end of police regulation. In its simplest form of exercise, as where employed solely for the purpose of regulating avocations of a class tending to disturb public order, health or morality, it is a power totally distinct from that of imposing taxes for the purpose of raising revenue.
It has however, been long employed for the purpose of...
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