State ex rel. Hibernian Society v. Addison , 2 S.C. 499 ( 1871 )

The opinion of the Court was delivered by

Moses, C. J.

The right of the City Council of Charleston to exercise the power of taxation to the fullest extent conferred by its charter is not questioned in either of the cases.

• It is competent for a municipal corporation to repeal or limit any grant which it has made, not in the nature of a contract, but while it exists the discretion of those entrusted with the authority is beyond the control of the Courts. They may at any time relinquish, repeal or suspend a tax which they have imposed, without question of their authority again to enjoin it, for their acts are not irrepealable.

“No Legislative body can so part with its powers by any proceeding as not to be able to continue the exercise of them.’’ — Cooley on Constitutional Limitations, 206; East Hartford vs. Hartford Bridge Company, 10 How., 535.

In the limit within which municipal bodies are competent to legislate their rights and obligations are identical with those of a State Legislature. It will not, however, be assumed that either such a corporation or Legislature will deprive itself of its power of taxation, or, in the exercise of it, embarrass itself with stipulations or conditions unless it is clearly shewn that the act having that tendency amounts to a contract.

The relators, conceding the effect' of these principles, do not claim that their real estate, referred to in the suggestion, was not within the taxing power of the City Council of Charleston, but contend that the said Council, by clear and unambiguous terms, have exempted such property from the general operations- of their Ac;s to raise supplies, so that they are not brought within the provisions of the ordinances of 1868 and 1869, under which the taxes about to be enforced were assessed.

The Hibernian Society of Charleston was incorporated on the 19th day of December, 1805, and the' General Lodge of Ancient Free Masons of South Carolina, on the-16th of the same month, in 1818. By an ordinance of the City Council, ratified on 29th of June, 1793, (Comp., 235,) “all and every religious and charitable society was exempted from payment of any city taxes now due or to become due.” Neither of the societies before the Court have been assessed for taxes or required to pay them until the proceedings instituted against them, respectively, now sought to be prohibited, were commenced. Their claim is, that under the said ordinance, and the subsequent action of the City Council, their said real estate is exempted from taxation.

It is first objected that those societies are not “charitable societies,” and, therefore, not within the terms of the ordinance. This exception proceeds upon the ground that the word “ charitable,” as therein used, is only to be applied to such institutions as are eleemosynary, and that neither of them has any claim to that character. A civil private corporation may, however, be established for purposes of general charity, and, as such, might be recognized as a charitable society, although the administration of its funds might not be confined to a hospital for the relief of the poor and sick, or a college or academy for the promotion of science and learning.

Nor is the use of the word to be understood in the ordinance', and our Acts of the General Assembly, as defined in Jones vs. Williams, Amb., 651, with reference to the statute of charitable uses, “ as a gift to a general public use, which extends to the rich as well as the poor nor is its sense to be restricted to those charities which, by the power which created them, are intended for public benefit without any discrimination as to the persons who are to participate in their enjoyment. “Charity,” as Sir William Grant said in Morice vs. Bishop of Durham, 9 Ves., 399, “in its widest sense, denotes all the good affections men ought to bear to each other:; in its most restricted sense, relief of the poor. Here its signification is derived chiefly from the Statute of Elizabeth.” The judical acceptance in which the terra “ charitable ” is to be taken, when applied to bequests of that nature, is not to determine the interpretation which is to be given to the word in its use by the ordinance. We must loot to the sense in which it was intended to be applied. At the time of its passage, with the exception of the “Orphan House,” there was not, in the City of Charleston, an institution in its incidents and elements at all approaching that of an eleemosynary kind. In fact, there were then few societies even in the State whose formation was for charitable- purposes. Having already intimated that we do not consider it as essential for any society claiming exemption under the ordinance of 1793, to shew that the charities which it administers are purely for public purposes, we think the relators are to be held within it, because the City Council, from the period when the societies first owned real estate in Charleston to 1868, have given a construction to it which it was too late to disregard or change while it was of force. It is true, as it was not in the nature of a contract, they could have repealed it at their pleasure ; but while operative, their action in regard to it for so long a time must be received as the interpretation of their own enactment.

“Where the words of a statute are doubtful, general usage may be called in to explain them, for optimus legum est consuetudo.”— Dwarris, 702; King vs. Hobb, 1 T. R., 178. For three-quarters of a century the Council have accepted the ordinance as excepting from city 'taxes all and every charitable association, and has included these societies among those upon whom it was to act. In good faith, and trusting to the exemption with which they supposed themselves favored, relying on the said ordinance, they might have purchased real estate to a large amount, and appropriated the proceeds in aid of the design of their formation, and after this long acquiescence on the p'art of the Council, they are now met with the objection that they were never included in the terms of it. It is too late to make such an objection available.

Holding, then, that the relators were among those included in the ordinance of 1793, it remains to be considered whether they are subject to the tax imposed by the ordinance of January 28, 1868, and of January 26, 1869. — 3 City Ordinances, 43, 61.

First, as to that of 1868. The ordinances from 1844 to 1851, inclusive (except for the year 1850,)' in express words exempt from taxation, “buildings and premises actually occupied as places of meeting by religious, charitable or literary societies: provided that no exemption herein contained shall be construed to extend to the house and buildings and improvements on such land owned, erected or held, by any individual or individuals under a lease for a term of five or more years'from either of such societies.” After the year 1851, the ordinances to raise supplies omitted this express exemption, and, save as to the amount of the tax assessed, were in the words of that of 1868, which is as follows: “Two dollars on every hundred dollars of the value .of every house, building, lot, wharf or 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 argument on the part of the appellants assumes that the right of these societies to the exemption sought is placed by them on a grant in the nature of a contract. That, however, is not the true view in which their proposition is to be regarded. If it was contended that the City Council had surrendered its right to tax these corporations, then, in the language of Ch. J. Taney, in Ohio Life Ins. and Trust Company vs. Debolt, 16 How., 435, “ neither the right of taxation, nor any other power of sovereignty which the country have an interest in preserving undiminished, will be held by the Court to be surrendered, unless the intention is manifested by words too plain to be mistaken.” No relinquishment of the right of taxation is pretended on the part of these societies to have been made by the Council in their behalf. Their right to withdraw the benefit •conferred by the ordinance of 1793 is recognized; the ordinance was not a surrender or relinquishment of the power to tax, but only a suspension of it. Its repeal dep'ended on their own pleasure and •discretion. Th'at it has been -directly repealed is not pretended. The appellant, however, refers its repeal by implication or inference to the direct exemption of charitable societies by the ordinances from 1844 to 1851, and its omission in the subsequent ordinances. This view might have been entitled to some consideration but for the fact that while the ordinances from 1844 to 1851 exempt the buildings and premises actually occupied as places of meeting by religious, charitable and literary societies, and the lands held by them, and except “ the houses, buildings and improvements on such lands erected or held by any individual or individuals under a lease for a term of five years or more from either of such societies,” those from 1852 to 1869, not repeating the general exemption, still include in the subjects of taxation, buildings, &c., on lands under a lease “ from a religious, charitable or literary society.” What societies can be thus referred to, other than those included-in the ordinances of 1844 to 1851 ? Why was an assessment to be made for improvements on lands held under leases from them, while improvements on lands leased from individuals or other societies (Jnpt religious, charitable or literary), were entirely free from the imposition? Were institutions which not only the action of Council had recognized as entitled to favor, but which commend themselves to the respect and gratitude of the jaiblic, to be in a worse position and liable to a greater tax than individuals and corporations designed for less laudable purposes? It is no answer that the persons leasing -such lands were to meet the tax on the improvements made; for the. effect of this would abate the value of the rent, and to that extent reduce it, thus shifting the tax, in fact, on the proprietor.

The inclusion, in the ordinance of 1868, of the improvements on such leased land, shews a clear intent on the part of the Council, that the real property of such corporations, not under lease, is protected by the ordinance of 1793.

While we concur with the Judge below in his 'construction of the ordinance of 1868, we think that a different ruie1 applies to that of 1869.

The Constitution of.the State was adopted in April, 1868, and the said ordinance passed on the twenty-sixth of January, 1869.

The second Section of twelfth Article of the Constitution provides that “the property of corporations now existing, or hereafter created, shall be subject to taxation, except in cases otherwise provided for in this Constitution.” The fifth Section of Article ninth specifics the cases, and coniines them to “all public schools, colleges and institutions of learning, all charitable institutions in the nature of asylums for the infirm, deaf and dumb, blind, idiotic and indigent persons, all public libraries, churches, and burying grounds,” and further declares that “ property of associations and societies shall not be exempt from State, County, and municipal taxation,” and provides “ that this exemption shall not extend beyond the buildings and premises actually occupied by such schools, &c., although connected with charitable objects.”

If these relators are within the said fifth Section, then the premises which they actually occupy are not liable to the city tax for 1869.

The Section, however, restricts whatever meaning may have been heretofore given to the term, and defines the nature of the institutions which are to be comprehended in it. Neither the Grand Lodge of Ancient Free Masons of South Carolina, nor the Hibernian Society of Charleston, can be claimed to be embraced within it. The corporations, other than those protected by the said Article, are, therefore, by the Constitution, subject to municipal taxation, and the ordinance of 1869 must be held to .apply only to such exemptions as the City Council under it had the power to make. The •convention had the right, with the consent of the people, to change 'and modify all the municipal charters which the State had granted. When the Constitution, therefore, declared that corporations other than those which it excepted shall be subject to taxation, the ordinance of 1793, on which these relators found their- right, must be regarded as repealed, and that of 1869 became operative against them.

It is ordered and adjudged that so much of the order of the Circuit Judge as grants the writ of prohibition, for the taxes of 1869, be reversed, and to that extent the motion is granted.

Willarcl, A.-J-., and Wright, A. J., concurred.