Hill v. Council of Abbeville , 59 S.C. 396 ( 1901 )

March 9, 1901. The opinion of the Court was delivered by This action was commenced by the plaintiff for himself and all others who would join as plaintiffs, to enjoin the enforcement of a certain ordinance passed by the city council of Abbeville on the 13th June, 1899, on the ground that it was illegal, null and void and unconstitutional. After the original complaint had been served and a temporary injunction issued, several parties came in and were made parties by order of the Court. An amended complaint was then served, setting out the ordinance in question as originally passed. The defendant then served its answer, alleging that since the serving of the original complaint the ordinance in question had been amended, and among other things set up the amended ordinance. The amendment related to the license tax on lawyers and on cotton buyers and on cotton seed buyers. All lawyers were not taxed alike in the original ordinance; some were taxed $5 and others $7.50. Cotton buyers and cotton seed buyers were not taxed the same, for whilst buyers for non-residents were taxed $10 each, buyers for local mills were exempt from the tax, thus making a discrimination. The amendment changed the ordinance in these respects so that all lawyers were taxed the same, and all cotton buyers the same, and all cotton seed buyers the same. Both ordinances are printed in the "Case" and are exactly the same, except as to the provisions last above mentioned, which have been amended. The amended ordinance makes no discrimination among lawyers, cotton buyers and cotton seed buyers, respectively, and in the same words as the original (except as to the amended parts) provides for a license tax on a number of occupations, professions and kinds of business. For instance, agents for enlarging pictures are taxed $1 per day or $10 per month; agents retailing goods are taxed $1 per day of $10 per month; agents or dealers in pianos or organs, $15; bakers not taxed; banks, $50; bootblacks, $1; cotton mills, $75; keepers of livery, sale and feed stables, $25; keepers of livery, feed and sale stables, with hacks, $35, and so on. The list is long, and embraces probably one hundred or more different occupations, professions and kinds of business. The plaintiff contends that the ordinance is illegal, null and void and unconstitutional, for the various reasons set out in his complaint, which will form part of the report of this case. He contends, in the first place, that the city council of Abbeville had no power to pass the ordinance; and, in the second place, that the ordinance as passed provides for taxes that are not uniform as to persons and property, and makes unjust and illegal discriminations among those engaged in the different occupations and kinds of business. He refers especially to his own case. He alleges that he is taxed both as a cotton buyer and as a merchant. He alludes, also, to the tax of $50 on the bank, with only $75,000 capital, while the cotton mill, with half a million capital, is taxed only $75; and to keepers of livery, feed and sale stables, who are taxed $25, while a keeper of a livery, feed and sale stable, with hacks, is taxed $35. He mentions the above among others as instances of wrongful classification of persons engaged in business, and of unjust imposition of the license tax. The Circuit Judge construed only the original ordinance as it was before it was amended. He sustained all of its provisions except the three hereinbefore mentioned, which related to lawyers, cotton buyers and cotton seed buyers. These three he adjudged to be illegal, because of the discrimination made by them amongst lawyers, cotton buyers and cotton seed buyers, and enjoined the enforcement of them.

The plaintiff appealed to this Court on numerous exceptions, which raise only two general questions, which are well and correctly expressed in the brief of respondent's counsel, as follows: First. Has the city council of Abbeville power to impose license or privilege taxes? Second. Has this power been exercised in a lawful and constitutional manner, and the license graduated so as to secure a just imposition of such taxes upon the classes subject thereto?

These two questions cover the entire contention, which appears to depend largely upon the construction of certain statutes of the General Assembly and of certain provisions of the Constitution of our State. The Circuit Judge, in his elaborate and well considered decree, which will form a part of the report of this case, answered both of these questions substantially in the affirmative, and as this Court agrees with the Circuit Judge, it will, we think, not be necessary to go over the whole ground again.

The first question relates to the power of the city council to pass the ordinance in question. Sec. 6, of art. VIII., of the Constitution, empowers cities and towns to assess and collect taxes for corporate purposes, said taxes to be uniform in respect to persons and property. Sec. I, art. X., gives the General Assembly power to provide for a graduated license on occupations and business. The constitutional authority, therefore, to levy license tax is undoubted, and it is clear that the General Assembly was not bound to do more than provide for a license tax. The cities and towns are allowed to graduate the tax.

License and privilege taxes have been in use for years in this State, and this Court has determined that municipal corporations may, when authorized by the legislature, impose such taxes either for the purpose of raising revenue or as a police regulation. State v. Columbia, 6 S.C. I; Information v. Oliver, 21 S.C. 325. The city of Abbeville was chartered by an act of the legislature, approved January 5th, 1895 (Stat. S.C. vol. 21, p. 1134). Sec. 8 of this act gives power to the city to impose license taxes on certain occupations, such as keepers of livery stables, public drays, hacks, butchers and some others. The act approved March 5th, 1896, No. 36 (22 Stat., 67), gave to such towns as proposed to form under its provisions and to such as would surrender their charters already obtained, and form anew under its provisions, power to impose license taxes. Said act simply confers on municipal corporations coming within the provision of the act, the power to impose license taxes. It does not impose the taxes or compel such corporations to do so. It merely authorizes them to require by ordinance the payment of such license taxes. It is not necessary to provide in this act that such taxes should be graduated. If the ordinance imposing the license tax does so in conformity to the Constitution, that is sufficient.

Next followed the act approved March 2, 1897 (22 Stat., 464), which amended the charters of all cities and towns in this State by endowing them with all the powers enumerated in the said act of 1896; so that there can be no doubt as to the statutory authority to impose said license taxes. Objections are made against the constitutionality of the said act of 1897 on the ground (I) that the powers that it confers are inconsistent with and in some cases — as Abbeville, for instance — repugnant to the powers previously conferred by the charters already in existence; and (2) that it refers to more than one subject; and (3) that it does not specify in what particular it amends city and town charters; and (4) that it was repealed by the act of 1899, 23 Stat., 70; but the Circuit Judge has passed upon all these questions and has found adversely to appellants' contention, and this Court is satisfied with his rulings in regard thereto; and further, that the city of Abbeville had full power to pass the said ordinance.

It remains only to ascertain whether or not it exercised said power in a proper manner. The Constitution (sec. 6, art. VIII.,) only requires that the license or privilege tax shall be just. The requirements in said section that taxes must be uniform in respect to persons andproperty, does not apply to the license or privilege tax. As all callings, occupations and kinds of business differ more or less, the one from the other, the very power to impose a tax that will be just on each class, "involves the right to make distinctions between different trades, and between essentially different methods of conducting the same general character of business or trade" (In re Haskell, L.R.A., vol. 32, p. 529), and what is a reasonable license fee, must depend largely upon the sound discretion of the city council (In re Haskell, supra). In a Texas case (Albrecht v. State, 34 Am. Rep., 737), it was held that "To tax a merchant upon his stocks as property, and also upon his gross sales, may seem burdensome, but it is not unconstitutional, when not expressly forbidden by the Constitution." Nor is a license tax imposed by a municipality upon merchants * * * graduated according to their monthly sales unconstitutional, as it applies equally to all in the same category (City v. Crocker, 16 Cal., 123). And an ordinance charging a license on vehicles, the uses to which they are put and the number of horses used, is not void, as it acts uniformly on all subjects in the same class (Newton v. Atchison,31 Kan., 157). In State v. Harrington, 34 L.R.A., 100, it was held that "A license cannot be deemed unequal because it reaches one occupation only, if it reaches all who follow that occupation." These authorities are not judicially binding on this Court, but they show the views which Courts of last resort in other States have taken of the matter involved in this case, and in this way throw some light on the subject. An inspection of the ordinance in question fails to disclose any violation of either the statutory or the constitutional requirements. It is true, that appellants urge that the ordinance does not impose a tax uniform as to persons and property, and that the city of Abbeville did not have the right to classify its citizens and their occupations, so as to put them in as many classes as they chose; and that the license tax is not so graduated as to impose a just share of the burdens of taxation upon occupations and businesses affected thereby; and that the city council of Abbeville had no right to fix a different rule for taxing merchants than the rule fixed for taxing them under the State law; and that his Honor, the Circuit Judge, erred in treating the ordinance as a police regulation, when it declares on its face that it is for revenue; and that the imprisonment provided for in the ordinance would be imprisonment for debt, and, therefore, unconstitutional; and that the classification of keepers of livery stables is erroneous; and as bakers are exempt, that the taxation is not just, as it does not reach all classes; but the Circuit Judge has found all these points adversely to the appellants' claim, and this Court agrees with his findings.

In answer to the twenty-third exception of appellants, as to omission of the Circuit Judge to rule upon the taxation of dogs, the tax fixed as alleged being $1 for the privilege of keeping a dog, and it being claimed that as dogs are property, they should have been taxed as any other property is taxed; it is sufficient to say that the act of 1896, No. 36, authorizes cities and towns to impose a license tax for corporative purposes, and to pass such ordinances as are necessary to enforce them, and to punish those who fail to comply with the law, and we see nothing wrong in the ordinance in this respect. And the same may be said as to the point raised, that there is a distinction between ordinances for police regulations and ordinances for revenue; both are authorized by our Constitution, and the acts referred to.

It is, therefore, ordered, that the decision of the Court below be affirmed.