Allen, Ball & Co. v. Mayor of Savannah

By the Court.

Lumpkin, J.

delivering the opinion.

By an ordinance passed the 11th of November, 1842, the Mayor and Aldermen of Savannah imposed a tax of two and a half per cent, on gross income; and on the 22d of November, 1849, they passed another ordinance, reducing the tax on income twenty-five per cent. On the 13th day of May, 1850, the Mayor and Aldermen passed another ordinance, entitled “ An ordinance declaratory of existing tax ordinances, which is as follows: Whereas, it is understood that doubts exist as to the precise day from which returns are to be made under the ordinance passed the 11th day of November, 1842, imposing a tax upon all gross income derived from commissions, (whether ordinary or guaranty commissions,) charged on purchases or sales of any articles whatever, or procuring and collecting freights, or receiving and forwarding goods; on all money negotiations; on the purchase or sale, of stocks, or other evidences of debt or commissions received as’ executor or executrix, or administrator or administratrix, and also upon the profit or income arising from the pursuit ¡of any faculty^ profession or' calling, (the clergy and schoolmasters .excepted;) and, whereas, the Legislature at its last ses¿ion, by an Act duly passed and approved, adopted, confirmed and declared'of full force, all and singular the ordinances of this corporation heretofore passed and then in operation, for laying and collecting any tax or assessment—

“Be it therefore ordained by the Mayor and Aldermen of the City of Savannah and the hamlets thereof, in Council assembled, and it is hereby ordained by the authority of the same, that the City Treasurer be, and he is hereby ordered and directed to receive, and all persons liable to said tax are required to make returns under the ordinance aforesaid, and those amendatory there of, from the day of the passing and approving of the Act aforesaid.

“ And be it further ordained, that the City Treasurer issue executions against all defaulters, according to the tax ordinances .of the city.”

By order of this last ordinance, Allen, Ball & Co. returned commissions on purchases, sales, freight, and other negotiations, from the 8th December, 1849, to the 30th April, 1850, inclusive, $6,381, tax $119 71; and having failed to pay this tax, the Mayor and Aldermen issued an execution for the collection of the same, under which a levy was made, when Allen, Ball & Co. filed their affidavit of illegality, setting forth, among other things, the following grounds:

1st. Because the said execution was issued upon assessment made upon the return of deponents of their gross income, derived from purchases, sales, freight, negociations and general commercial business, between the 8th December, 1849, and 30th April, 1850, which said return was made by an order of the Mayor and Aldermen of the City of Savannah and the hamlets thereof, which said order was illegal.

2d. Because the corporation of the City of Savannah is' not authorized by any law of this State, to levy an assessment upon income, and because the said execution has issued tax or assessment upon the income of deponent^ their personal labor.

3d. Because the ordinances and resolutions,. Mayor and Aldermen of the City of Savannah thereof, under which said assessment has been cution issued, are not in conformity with the Ac? December, 1845, nor the tax law of 1804, nor any other law of this State, nor in conformity with the powers conferred upon the corporation of the City of Savannah by the Act of 1849, or by any other Act of the Legislature of the State of Georgia, but, on the contrary, is in violation of said laws.

4th. Because the ordinances of the City of Savannah, which assess a tax upon income, and under which said execution issued and is proceeding, have been declared to be invalid and void by the highest judicial Courts in this State, and because said execution has been issued under said ordinances thus judicially declared to be inoperative.

5th. Because the ordinance of the Mayor and Aldermen of the City of Savannah and the hamlets thereof, passed the 13th of May, 1850, entitled “ An Ordinance declaratory of existing Tax Ordinances,” and by virtue of which said assessment was made, and the said execution issued, was without authority of law, and levied a retrospective tax upon income which had been received and expended prior to its enactment. *

This affidavit of illegality being- returned to the Mayor and Aldermen on the 29th August, 1850, the same was overruled by them, and the execution and levy ordered to proceed. Whereupon, Allen, Ball & Co. by their counsel, excepted to 'the said order and decision of the Mayor and Aldermen, upon the affidavit of illegality, which exceptions were overruled. Allen, Ball & Co. then presented their petition to the Judge of the Superior Court, in and for the Eastern District, in terms of the law, praying for the writ of certiorari upon the specifications of errors complained of in the said decision and order of the Mayor and Aldermen, and, upon the said petition, the Judge made an order that the Mayor and Aldermen should show cause why the prayer of the petitioners should not be granted, and the writ of certiorari issued. Upon the 20th December, 1850, the writ wa's made returnable, and cause shown. Whereupon, the Judge refused to grant the same, and maintained that the 4th section of the Act of the Legislature, approved on the 8th December, 1849, in reference to the City of Savannah, and providing “that all and singular the ordinances of said corporation heretofore passed, and now in operation, for the laying and collecting of any tax or assessment, be, and the same are hereby adopted and confirmed, and declared of full force,” made the ordinance of 1842, under which this tax was imposed, valid and legal, notwithstanding the same had been pronounced null and void by his predecessor of the Eastern Circuit, on the 9th of June, 1849, which judgment was affirmed hy the Supreme Court, in the Term of January, 1850. To which decision, Allen, Ball & Co. by their counsel, Law and Bartow, Charlton & Ward, excepted, and now allege the following grounds of error :

1st. Because the Judge decided that the execution issued against the property of Allen, Ball & Co. for the recovery of the tax assessed upon their.income, as heretofore set out, was properly issued, and by authority of law.

2d. Because the Judge decided that the Act of 'the General Assembly of the State of Georgia, passed the 8th day of .December, 1849, gave validity to the ordinance of the Mayor and Aldermen of the City of Savannah, passed the 11th day of November, 1842, entitled “An Ordinance amendatory of, and in addition to the Tax Ordinance of the City of Savannah, for raising .supplies for the.support of a Watch, and other-purposes;”

3d. Because the Judge decided that the said ordinance, before recited by its title, was in operation at the time of the passing of the Act of the General Assembly, of the 8th day of December, 1849, when, in fact, the said ordinance, so far as it related to the tax therein imposed upon income, had been declared to be inoperative and void by the Judge of the Superior Court of the Eastern District, in the Term of May, 1849, which judgment was affirmed by the Supreme Court, in the Term of January, 1850.

4th. Because the Judge erred in the construction he gave to the 4th section of the Act passed by the General Assembly, on the 8th of December, 1849, which enacted “that all, and singular the ordinances of said corporation, (of Savannah,) heretofore passed, and now in operation for the laying and collecting of tax or assessment, be, and they are hereby adopted and confirmed, and declared of full force,” by applying the said section to the tax ordinance referred to, when the same was not in operation in law or in fact.

5th. Because the Judge erred in deciding “that the only ordinances of the City of Savannah, of the character referred to, which were not either obsolete or repealed at the date of the Act, were the ordinances of the 11th of November, 1842, and of the 22d of November, 1849, the latter being a re-enactment of the former, with a reduction of the rates of taxation,” when, in fact, there were other ordinances “ of the character referred to,” and the ordinance of the 22d of November, 1849, was not a re-enactment of the ordinance of the 11th of November, 1842, but only an amendment thereto.

6th. Because the Judge erred in deciding “ that a legislative Act, when passed directly by the Legislature, or indirectly by their authority, must be considered as in operation, until repealed or pronounced unconstitutional of illegal by the Supreme Court of the State.” Whereas, the ordinance in question had been declared to be inoperative by a" Court of superior and competent jurisdiction, in a case in which its validity had been directly in issue, which judgment remained of full force, until reversed by a supreme tribunal, or'overruled by its own authority, and which judgment was subsequently affirmed by the Supreme Court, and was, therefore, of force and binding from the time when it was made by the said Superior Court.

7th. Because the Judge erred in his construction of the Act of the Legislature of December 9th, 1849, by calling, in aid of said construction, extrinsic facts and circumstancs not mentioned or alluded to in the Act itself, and by explaining the legislative intent outside of the terms of the Act.

Judge Jackson deemed it unnecessary for him to consider whether the last ordinance, of May, 1850, could or could not retroact, so as to authorize the issuing and levy of this tax execution ; for the reason, I suppose, that he viewed, this as a proceeding under the previous ordinances of 1842 and' 1849.. Such it purported to be, and undoubtedly is. Indeed, this last ordinance did not profess to levy, a tax, but was directory, merely, as to the mode of giving in and receiving the income tax, under existing ordinances. And the whole question, in this case, turns, upon a single point: Did the fourth section of the Act of 1849-give validity, to the-income ordinances themupon.the. statute book of. the corporation of the City of Savannah ?. And the answer to, this- inquiry depends upon the settlement of this principle. Does, a Statute of the State, giving vitality to all the tax ordinances of a city “ in operation,” apply to one which has been judicially declared by the Superior Court to be inoperative before its passage ? The ordinance of 1842, having been decided by Judge Fleming, at the- May Term, 1849, of Chatham Superior Court inoperative, which judgment was affirmed, b.y, the Supreme Court, upon writ of error, the January, ensuing,, was. this ordinance- embraced-by the Act of. the Assembly of the 8th December, 1849, “ adopting, enforcing and declaring of full' force, all. andj singular the ordinances of the corporation of Savannah then in operation ?” To determine this point properly,, it becomes necessary to ascertain the effect and operation of a writ of error, in relation to.the judgm'ent.rendered in the Circuit Court.

[1.] The writ of error is an original writ. In England it is issued out .of a Court of competent jurisdiction, directed to the. Judges of a Court of record, in which final judgment has been given, and commanding them, in some cases, themselves to examine the record; in others, to send it to another Court of appellate jurisdiction, therein, named, to be examined, in order that some alleged error in the proceedings; may be corrected. Steph. Pl. 138. 1 Cowen, 18, 19. 3 Hammond, 354.

[2.] The object of the writ of error is to review and correct an error of the law, which is not amendable at Common Law, oír cured by any of the Statute of jeofails. Tidd’s Pr. ch. 43. Graham’s Pr. B. 4, e. 1 Bac. Abr. Error in pr. 1 Vern. 169. Yelv. 76. 1 Salk. 322. 2 Saund. 46. n. 6. Ibid, 101, n. 1. 3 Bl. Com. 405. Serg. Const. Law, ch. 5.

[3.] It is considered a new suit, and it is less an action, between- the original parties than a question between; the judgment and the law. It is not the action which is-to- be judged,, but the judgment. 7 Durnf. & East, 337. 6 Port. Rep. 9. 3 Story’s Const. Law. §1721. 2 Sand. 101, f.

Writs of error are,, upon final, as contrasted with interloGUrtory judgments, meaning, by the words final judgment, one' which determines the particular cause. 1 Wend. 35. 4 Cowen 82. 6 Johns. 337. 2 Mass. 142. 3 Binney, 531. 9s Pierce, 606. 3 T. R. 78. 2 Salk. 504. 4 Rawle, 355. 2. Peters, 464, 465. 5 Conn. Rep. 356, 357. Tillinghast & Yates’ Treatise on Error and Appeals, passim.

j]4.] The inference to.be drawn from these authorities is, that-the judgment of the Court below is considered, at Common. Law,, a final judgment, and the object of the new proceeding by writ ■of error, is to test this-judgment by the law, the result being;,. on such an examination, either its affirmance or reversal.

[5.] By the Act of 184-5- as- well as by the Common Law, a writ of error is no supersedeas of execution, unless bond and security is given. The first judgment is heated, to all intents and; purposes, as a final judgment. Indeed,,i£ it be sustained,:none-other is awarded.

[6.] And the Statute-expressly provides that judgment in, the; Court below, if affirmed,, shall not lose-any'lien or priority by* reason of the proceedings in the Court above. Pamphlet Laws, 1845, p. 21.

[7.] Our conclusion, therefore, is that the pendency of the writ of error did not affect the judgment of the Superior Court declaring void the ordinance of 1842, imposing a tax upon income. It was binding until reversed, and being affirmed, it was binding, ab initio. The only effect of the judgment of the Supreme Court, in January, 1850, was the judicial ascertainment of the fact, from an examination of the record, that the ordinance of November, 1842, was always a nullity, so far as in-income tax was concerned, the corporation possessing no authority to impose it, and of course was inoperative, on the 8th of December, 1849, when the Act of the Legislature was passed.

[8.] Had the judgment of affirmance of the Supreme Court been pronounced prior to the legislative enactment, there would be no doubt or controversy. The effect is just the same, whether made in October, before the Act was passed, or in January, afterwards. It relates back, and takes effect from the date of the first judgment in the spring of 1849.

[9.] What is the meaning of the phrase, “ in operation ,” used by the Assembly? According to Webster, and the best lexicographers, operation is defined to be the exertion of power, physical, mechanical or moral — action, as of an army or fleet— movement of machinery. Can an ordinance, which had been pronounced a nullity by a Court of competent jurisdiction, six months previously, and the proceedings under it set aside as illegal, be said to be “ in operation,” viz: working for the corporation ? Instead of being in progress, its motion was completely arrested, never to be again revived.

What purpose those who framed this Act may have designed to subserve, we do not pretend to know. Gathering the intention of the Legislature from the language of the Statute, we are of the opinion that the ordinance of 11th of November, 1842, was not “ in operation” at the time of the passing of the Act of December 8th, 1849, and was, therefore, not embraced by the terms of the 4th section of that Statute.

Whether tire 3d section of this Act confers power to impose an income tax, it is unnecessary to decide. It vests the Mayor and Aldermen “ with full power and authority to make such assessments, and levy such taxes on the inhabitants of Savannah, or those who have taxable property within the same, for the safety, benefit, convenience and .advantage of the city, as shall appear to them expedient.” All I can say is, that this grant is exceedingly broad.

Let the judgment be reversed.