Cooper v. Mayor of Savannah , 4 Ga. 68 ( 1848 )

By the Court

Wahner, J.,

delivering the opinion.

[1.] The Court below, did not err in ruling the petitioners were not citizens of this State, as contemplated by the constitution and laws thereof.

^* Free persons of color have never been recognized here as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office. They have always been considered as in a state of pupilage, and been regarded as our wards, and for that very reason we should be extremely careful to guard and protect all the rights secured to them by our municipal regulations. They have no political rights, but they have personal rights, one of which is personal liberty. The petitioners complain that they are illegally imprisoned in the common jail of the city of Savannah. It appears from the transcript of the record, that the petitioners were arrested and imprisoned by virtue of a warrant issued from under the hand of the Mayor of the city of Savannah, on the 14-th day of October, 1847, for a violation of the 5t7b Section of an ordinance passed by the Mayor and Aldermen of the city of Savannah, on the 27th day of August, 1839, which reads as follows: “An ordinance to amend and consolidate the various ordinances of the city of Savannah; for raising a fund for the support of a watch in the city of Savannah, and to prescribe the mode of assessing and collecting taxes in the city of Savannah, and for other purposes connected therewith,” “ Each free person of color who may remove to this city to reside herein, from any other part of .the State, shall pay to the Treasurer the sum of one hundred dollars, within thirty days from the date of his arrival as aforesaid, which said sum shall be in addition to any poll or other tax, assessed by this ordinance upon free persons of color, and if the same be not paid as aforesaid, the Mayor, upon information lodged with him of said default, shall and may issue his warrant under his hand and seal, directed to the Marshal or to any of the city constables to execute, directing him or any of them to arrest and commit to the common jail such free person of color so in default, and the same free person of color, shall be confined therein until the said sum of money is paid, or he or she shall be discharged by order ofcouncil or due course of law.” By the 7 th Section of the Act of 24th Dec. 1825, authorizing the corporation of the city of SavanU&h to assess taxes, &c. it is provi-tied that such taxes shall he collected by the proper officers, in such manner as the taxes of the State are collected■ and enforced.

The 12¿7¿ Section of the Act provides that where there is neither lands, goods or chattels to be found, out of which to collect the penalties imposed by warrant of distress and sale, then it shall he lawful for a majority of the Mayor and Aldermen, by execution duly issued, to imprison the offender in the common jail of the county of Chatham, not' to exceed ten days and nights.— The 11th Section of the Act gives to the Mayor and: Aldermen full power to pass all ordinances, rules and regulations necessary for the government of slaves and free persons of color within the city of Savannah and hamlets thereof. The 20th Section of the Act prohibits the corporation of the city of Savannah, from passing any ordinance, rule or regulation, contravening the laws of this State, or the Constitution thereof. Dawson’s Compilation, 464-5.

[2.] That the corporate authorities of the city of Savannah have ample power conferred on them by the Legislature, by the 11th, Section of the act of 1825, to.make all such rules and regulations as may be deemed proper for the well-being and safety of the inhabitants of the city, in regard to the conduct and residence of free persons of color within the corporate limits of the city, we do not doubt; but the question presented by the record, and bill of exceptions now before us, is, whether the petitioners are imprisoned for the violation of any rule or ordinance made by the corporation under the 11th Section of the Act for that object, or whether they are imprisoned for the non-payment of a tax, im-posed by the corporate authorities of the city. The right of the city authorities to impose a tax upon free persons of color within the corporate limits of the city, is recognized. But if the ordinance which the petitioners are charged to have violated be a tax ordinance, and the offence for which they are imprisoned is the' non-payment of the tax imposed by such ordinance, tfien, in our judgment, their imprisonment is illegal. While we admitthe right of the corporation to impose and collect the tax specified in the ordinance; yet we deny the right of the corporation to enforce its collection by imprisonment.

It is quite apparent, we think, from the face of the act of 1825, that the taxes authorized to be assessed by the corporate authorities of the city of Savannah, should be collected in the same manner as the taxes of the State are collected', with the exception of the ten days and nights imprisonment authorized by the 12th Section of the Act. The 12th Section, however, in our judgment,, was intended to apply to free white persons.

By the 9 th Section of the Act of 1815, it is declared,. “In all eases where free persons of color shall fail or refuse to pay the taxes charged against them, and shall have no property on which to levy, the collector may levy on and hire out said free person of color for such price as will produce the amount due the State.’* Prince’s Pig. 859. The Court below was of the opinion that the non-payment of the one hundred dollars, for which the petitioners were imprisoned, was not a tax, and therefore refused to discharge them.

The object of the ordinance enacted by the Mayor and Aider-men of the city of Savannah, appears upon its face to- be to raise a fund for the support of a watch in the city, and to prescribe the mode of assessing and collecting taxes in the city of Savannah, and for other purposes connected therewith.

Indeed, the 5th Section of the ordinance declares, each free person of color who may remove to the city to reside, shall pay to the treasurer the sum of one hundred dollars in addition to any poll or other tax, assessed by this ordinance upon free persons of color.

When we take into consideration the object of the ordinance-, ass well as the ordinance itself, our minds are irresistibly forced to the conclusion that the section which imposed the payment of one hundred dollars on free persons of color removing to the city to reside, from other parts of the State, is a tax, and nothing else but a tax, and being a tax, its collection cannot be enforced, by the imprisonment of the petitioners. The mode for collecting the tax is. pointed out by the act of 1815, which provides the petitioners shall be hired out for the payment of their taxes, and that portion of the ordinance which declares the petitioners shall be imprisoned for the non-payment of the one hundred dollars tax-imposed, is repugnant to the laws of the State and void.

It was insisted, however, on the argument, that admitting it was a tax, the petitioners might be detained in prison until arrangements could be made to hire them out, in accordance with the provisions of the statute. The answer to that argument is, no ¡such olyect appears on the face of the warrants of commitment which are returned as the cause of their caption and detention. Let the judgment of the court below be reversed, and the petitioners discharged.

* Note. — By a joint resolution o! tlic Legislature of Georgia, in 1842.it was unanimously Resolved, that free negros are not citizens of the U. S., “ and that Georgia willneverrecognizesuohcitizenship.” Pam. Acts, 1842,p. 182p. ptep.