The Mayor v. Hartridge

• Decision Date: 31 January 1850
• Docket Number: No. 3.,3.
• Court: Georgia Supreme Court
• Parties: The Mayor, &c. Savannah, plaintiffs in error. vs. Charles Hartridge, defendant.

8 Ga. 23

The Mayor, &c. Savannah, plaintiffs in error. vs. Charles Hartridge, defendant.

No. 3.

Supreme Court of the State of Georgia

JANUARY TERM, 1850.

Certiorari, in Chatham Superior Court. Decided by Judge Fleming, June, 1840,

By an ordinance of the Mayor and Council of Savannah, passed 11th November, 1842, a tax was imposed as follows: "Upon all gross income derived from commissions (whether ordinary or guaranty commissions) charged on purchases or sales of any articles whatever, on procuring or collecting freights, on receiving or forwarding goods, on all money negotiations, on the purchase or sale of stocks, or other evidences of debt, on commissions received as executor or executrix, or administrator or administratrix, and also upon the profits or income arising from the pursuit of any faculty, profession or calling, (the clergy and schoolmasters excepted) there shall be paid a tax of two and a half per cent. on the gross amount of said bill."

Under this ordinance, Charles Hartridge returned for " commissions on purchases, &c. $11,248;" and having failed to pay the tax, execution issued. Hartridge filed an affidavit of illegality, on the ground that the ordinance was unauthorized by any of the Acts granting power to tax to the Council.

These Acts are as follows: The Act of 1787 granted power " to lay and assess one or more rate or rates, assessment or assessments, upon all and every person or persons, who do or shall inhabit, hold, use or occupy, possess or enjoy any lot, ground, houses or place, building, tenement or heriditament, in any square, street or place, within the limits of the Town of Savannah, " &c. The Act of 1805 grants power " to assess and levy an annual tax on all persons and property within the said City, liable to pay tax by the general tax laws." The Act of 1825, by the seventh section, grants power to raise money "by a poll tax, or by tax and assessment, upon all real and personal estate within the limits of the City." By the fifteenth section, the Council arc authorized to " tax pedlers within the jurisdictional limits of the corporation of Savannah, and to tax all and every person or persons vendingany goods, wares or merchandize in the City of Savannah or hamlets thereof."

The Mayor and Aldermen, in Council, overruled the affidavit of illegality, and Hartridge carried the case before the Superior Court, by certiorari. On hearing the certiorari, the same was sustained by the Court, and the decision of the Council reversed.

This decision is alleged as error.

S. Cohen, for plaintiff in error.

The Acts of the Legislature, viz: the Act of the 10th February, 1787, and the Act of 2d December, 1805, and the Act of 24th December, 1825, give to the coloration the right to enforce the tax in question. Marbury & Crawford, 121. Clayton, 243. Dawson, 404.

Defendant is a factor and vendor of goods, wares and merchandize, and therefore liable to the tax. Clayton, 226, 229. Dawson, 420. Hotchkiss, 131, 132. And that this is not a poll tax. 16 Peters, 435, 446.

Income is properly classed under the word property, and is, therefore, a subject of taxation. 2 Blackstone, 103, 17. Linning vs. City Council of Charleston, 1 McCord, 345, 349. Bank of the State of Georgia vs. The Mayor and Aldermen, Dudley, 130, 131, 137. Portland Bank vs. Apthorp, 12 Mass. 252, 6, 7. 16 Peters, 435, 445, 416. 3 McCord, 374, 5, 6.

The charter of the City of Charleston authorizes the City Council " to make assessments on the inhabitants of Charleston, or those who hold taxable property within the same, " and it has been decided that this grant of power gives full power to tax all subjects of taxation. 1 Nott & McCord, 527, 28, 30. 1 McCord, 245, 7, 8, 9. 4 Wheaton, 429. 16 Peters, 435, 445. 3 McCord, 374, 5, 6.

And, finally, the Legislature, at its late session, has given a legislative interpretation to the various Acts of 1787, 1805, 1825, confirmatory of the power, and our own Supreme Court is liberal in its construction of City charters. 5 Kelly, 546, 561, 66, 67.

Ward (representing McAllister) and Law, for defendants, cited:

2 Speers, 729 to 735. 4 Hill, N. Y. 83, 4. 4 Peters, 168. 1 Hoisted, 352. 1Blackf. 336. 1 McLean, 41. 16 Peter, 447. 12 Mass. 252. 17 Ib. 461.Ang. & Ames, 373. Dudley, Ga. 132. 1 McMullan, 413. 6 John. 93. 1 Hill\'s S. C. Rep. 36. 1 McCord, 346. 3 McCord, 374. 1 Nott McC. 527, 8. Statutes at Large of S. C. pp. 366_r 414, 487, 497, 529, 628. 2 Bailey, 671. Frederick vs. The City Council, 5 Ga. Rep. 561. 12 Mass. 268.

the Court. —Lumpkin, J. delivering the opinion..

This writ of error is brought to test the validity of an ordinance of the corporation of Savannah, laying a tax upon income; and the single question I propose to discuss is, Have the Mayor and Aldermen of that City the power, under their charter, to impose this tax?

It will not be disputed that income is a legitimate subject of taxation. The State of Georgia, in the exercise of its law-making power, may assess such a tax, and may delegate the authority to do so to a municipal corporation. The only inquiry here is, Has the right been conferred in the present instance? Now, the burden is upon the corporation to show the grant, by express words, or necessary implication. For, otherwise, it cannot be justified in the exercise of this high prerogative of sovereignty, of taxing, private property without the consent of the owner.

We will proceed, then, to examine, in their chronological order, the several Acts of the Legislature, passed in reference to this subject, to ascertain what taxing power has been bestowed by the Legislature upon this corporation. There are four Statutes upon this subject; the first, the Act of 1787, (Mar. & Crauford, 121;) the second, the Act of 1805, (Clayton, 243;) the third, the Consolidation Act of 1825, (Dawson, 464;) and the fourth, the Act of 1838, (Pamphlet Laws, p. 64.) It is conceded that these Acts are all in force; and, consequently, if the power is in either of them, it may be rightfully exercised by the Mayor and Aldermen.

The 4th section of the Act of 1787 provides, " that it shall and may be lawful for the said Wardens,, or a majority of them, yearly and every year, and oftener, if occasion may require, to make, Bay and assess one or more rate or rates, assessment or assess-ments, upon all and every person or persons, who do or shall inhabit, hold, use or occupy, possess or enjoy any lot, ground, houses or place, building, tenement or hereditament, in any square, street or place, within the limits of the Town of Savannah, or hamlets thereof, for raising such sum or sums of money as the said Wardens, or a majority of them, shall, in their discretion, judge necessary for and towards carrying this Act into execution."

The construction of this Act came directly before the Convention of Judges, in the case of the Bank of the State of Georgia vs. The Mayor and Aldermen of the City of Savannah, in 1832, (Dudley, 136;) and that able Bench there held, that the Act of 1787, " authorized a tax only upon lots of ground or buildings within the City or upon persons, in respect to this species of property, by reason of their owning, occupying or inhabiting the same." This interpretation we believe to be correct; and the procurement of the passage of the subsequent Acts of 1805, authorizing a tax upon " all persons and property, " and of 1825, to tax " all real and personal estate, " is conclusive that the corporation itself put this restrictive meaning upon its own powers under the previous charter. We conclude, then, that the power to tax income is not found in this Act.

The 1st section of the next Act, of 1805, authorizes the Mayor and Aldermen to raise and establish a regular watch, and for the purposes of paying and maintaining the same, the second section declares that they may "assess and levy an annual tax on all persons and property within the said City, liable to pay tax, by the general tax law." Here it is admitted, power is conferred to tax all persons and property; but the power to tax property, is expressly limited to such property as was liable to pay tax, by the general tax laws of the State. But income was not liable to pay tax, by the general tax laws of the State, in 1805; nor, indeed, at any other time. Therefore, the power to tax income, was not included in this grant.

The 7th section of the Act of 1825, authorizes the Mayor and Aldermen, for certain purposes therein enumerated, to raise any sum or sums of money, " by a poll tax, or by tax and assessment, upon all real and personal estate, within the corporate limits of the City." Does this power to tax property, generally, here denominated real and personal estate, confer the right to tax income?

The subject of taxation has been, very properly, divided into three classes—capitation, property and income; and this distinction is recognized, not only by all writers on political economy, but in the general tax laws of all Governments; and when one or more is mentioned or treated of, the other is never intended. And the point to be decided is, not whether income may not, possibly, be comprehended under the general name of property, but whether such is its meaning, and such was the design of the Legislature, in this Act?

I am aware that it has been held in South Carolina, that the City Council of Charleston, under their charter, to make assessments on the inhabitants of Charleston, or those who hold taxable property within the same, have authority to tax income— and very properly; for income is taxable property by the general tax laws of that State—and had been, if we mistake not, from the first Act upon the subject, in 1777, down to 1783, the year when the charter to the City of Charleston was passed. But, in Georgia, notwithstanding the mind of the Legislature has been, at each successive session, intensely occupied with this most exciting and engrossing topic, to wit, the best mode of raising taxes; still, up to the year 1825, and even to the...