State ex rel. Bartless v. Beaufort

17 S.E. 355, 39 S.C. 5, 1893 S.C. LEXIS 99

• Court: Supreme Court of South Carolina
• Decided: March 31, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Chief Justice McIver.

This was an application for a writ of prohibition to restrain the town council of Beaufort from levying and collecting a tax of twelve and one-half mills on every dollar of the assessed value of the real estate of relators, situate in the town of Beaufort, which the said council had undertaken to impose by an ordinance ratified on the 7th of March, 1892. The ground upon which the writ was asked for is that by the charter of the said town the town council have no power to impose any tax upon real estate in excess of the rate of one-fourth of one per cent, of the value thereof. So that the only question raised by the pleadings, and the only question considered and determined by the Circuit Court, is whether said town council has been invested with the power to levy a tax in excess of the said rate of one-fourth of one per cent.

It appears that by the act of 1816 (8 Stat., 276), the town council of Beaufort was authorized to “make assessments advalorem upon all the lots and houses in the town; provided, that no such assessment shall exceed the amount of one-fourth of one per cent, on the value thereof;” aud that from time to time the town was rechartered, “with all the powers and privileges heretofore granted.” But it is not necessary here to specify these various acts until we come down to the act of 1850 (12 Stat., 10), when by the 20th section of “an act to incorporate certain societies and companies, and to revive and amend certain charters heretofore granted,” it was enacted as follows: “That the town council of Beaufort shall have power to make such assessments on the inhabitants of the town of Beaufort, or those persons who hold taxable property therein, as shall appear to them expedient for the safety, convenience, benefit and advantage of said town. * * * And that all acts and parts of acts heretofore pássed, which are inconsistent with or repugnant to this act, be and are hereby repealed.” Then in 1866 (13 Stat., 511), the charter of the town having previously expired, the legislature passed “an act to renew the charter of the town of Beaufort,” whereby it was declared “that the town of Beaufort be and the same is hereby reincorporated for the term of fourteen years, with all the powers and privileges heretofore granted.” And in 1879 (17 Stat., 52), another act was passed, declaring: “That the original charter of the town of Beaufort, with the amendments thereto, are hereby renewed and extended for the term of fourteen years;” and this act has not yet expired.

1 It seems, however, that by the Revised Statutes of 1872, page 835, the act of 1850, from which a section is quoted above, was placed on the list of acts of that year which have expired, or have been or are hereby repealed; and it is contended, and was so held by the Circuit Judge, that-the effect of this was to .deprive the town council of the power to pass the ordinance imposing the tax in question, notwithstanding the fact that the power to impose such a tax or assessment as they might deem expedient for the welfare of the town, conferred by the 20th section of the act of 1850, had been carried into the act of 1866 as well as iuto the act of 1879 (neither of which have ever been repealed), by the provisions in those acts conferring all the powers theretofore granted. We cannot accept this view. It is not pretended that the act of 1866 was expressly repealed by the Revised Statutes, 1872, as it does not appear in the list of acts of that year, which are declared by the Revised Statutes, page 768, to “have expired, or have been, or are hereby, expressly repealed;” and, therefore, if repealed, it must be by implication. But as it is well settled that repeals by implication are not favored, and. that to effect such a result the implication must be necessary, the question is, does the alleged repeal of the act of 1850 necessarily imply a repeal of the act of 1866.

2 As was well said by Mr. Justice McGowan, in State v. Young, 30 S. C., at page 409, in considering a similar question: “It seems to us at least doubtful whether it can be affirmed of any particular act, which appears by its title on the schedule of the General Statutes (of 1872) that it was thereby certainly repealed. The sweeping declaration is made as to the whole list without discrimination, but in the alternative, ‘expired,’ ‘before repealed,’ or ‘now repealed.’ Into which category could it be placed with any degree of certainty?” Now, when it is remembered that the act of 1850 related to various other corporations besides that of Beaufort, some, if not all, of which had expired and been renewed, the doubt would be increased as to wiiether that act was placed upon the list as an “expired” or a “repealed” statute; arid when to this is added the fact that the act of 1869, providing for a revision of the statutes, expressly required that the commissioners appointed to perform the work should bring together all statutes relating to the same subject, “omitting redundant and obsolete enactments,” the most natural inference would be that the legislature, in adopting the Revised Statutes, which must be presumed to know of the act of 1866, into which the provisions of the act of 1850 had been carried, regarded the last mentioned act as “redundant” and no longer necessary, as its provisions were re-enacted in the act of 1866, which was not placed amongst the list of acts which had expired, had been or were then repealed, and, therefore, still left of force, at the time of the adoption of the Revised Statutes.

3 There is still another view, wdiich, though not necessary to sustain our conclusion, is not without weight. Bearing in mind that the original rule that the repeal of a repealing statute, ipso facto, revives the former, does not apply to repeals effected by the Revised Statutes (sec. 3, chap. 146, page 766), the practical result of the construction adopted by the Circuit Court would be to leave the corporation of Beaufort without any power to tax at all. For it cannot be questioned that the 20th section of the act of 1850, when it expressly declared that all acts and parts of acts inconsistent with or repugnant thereto should be repealed, thereby repealed the act of 1816, which was manifestly inconsistent with and repugnant to the act of 1850, and as under the section of the Revised Statutes last above cited the repeal of the act of 1850 could not revive the act of 1816, and as we have not been referred to any act since that time conferring the power of taxation, the necessary result would be, if the view of the Circuit Judge should be adopted, that there is now no law conferring the power of taxation on the corporation of Beaufort. Now, while it is quite true that courts cannot ordinarily concern themselves with results, yet wheu the question is as to the intention of the legislature as expressed in a statute, and one construction leads to a result which it is not reasonable to suppose that the legislature intended, and another construction leads to a more reasdnable result, the court should adopt the latter rather than the former, unless the language used by the law-making power plainly requires a different construction.

It seems to us, therefore, that the Circuit Judge erred in holding that by the repeal of the act of 1850, the provisions of the act of 1866, as well as those of the act of 1879, fell with it, and consequently that there is now no law authorizing the town council of Beaufort to impose the tax in question.

4 It is urged, however, that the act of 1816, in so far as it limited the rate of taxation, was not repealed by the act of 1850, as the only effect of that act was to increase the subjects of taxation, leaving the rate the same as that limited by the act of 1816. We do not think that the language of the act of 1850 can be properly so construed. The words are that said town council “shall have power to make such assessments” on the taxable property in the town, “as shall appear to them expedient for the safety,” &c., of said town. In the case of Bank v. City Council, 3 Rich., 347, the phrase, “make such assessments,” in an act from which this act was doubtless taken, has been construed to mean “impose such taxes,” the act under consideration may be construed as if it conferred upon the town council the power to impose such.taxes as they might deem expedient for the welfare of the town, without any specific limitation as to the amount of rate of such taxes; the only limit being the judgment of the town council as to what was necessary to secure the welfare of the town, subject, however, to the further limit imposed by section 8 of article IX. of the Constitution, that the taxes shall be for corporate purposes. State v. Neely, 30 S. C., 603.

5 Again, it is urged that if the act of 1850 be regarded as repealing the act of 1816, in so far as it. limits the rate of taxation which may be imposed by the said town council, then it is in conflict with the Constitution, for then their powers of taxation would be unlimited; and section 9 of article IX. of the Constitution is referred to as showing that the legislature cannot confer upon a municipal corporation unlimited power of taxation. That section provides that “The General Assembly shall provide for the incorporation and organization of cities and towns, and shall restrict their powers of taxation,” &c. This does not necessarily imply that a municipal corporation must be limited to a certain rate of taxation. The word “restrict” is not appropriate to such a view, but more naturally implies that the power of taxation must be restricted as to the subjects and objects of the tax imposed. But as a matter of fact, the power of taxation conferred upon the town council of Beaufort by the act of 1850 is not unlimited, for the provision is that the town council shall have power to make such assessments; which means, as we have seen, shall have power to impose such a rate of taxation as may in their judgment be necessary and expedient for the welfare of the town, and they have no power to go beyond that. It can scarcely be contended that the phrase, “restrict their powers of taxation,” necessarily requires that the numerical rate of taxation shall be fixed; for if such had been the intention, the framers of the Constitution were singularly infelicitous in selecting their language to express such an idea. The case of Foster v. The City of Kenosha, 12 Wisc., 616, relied upon by respondent’s counsel, seems to us rather to support the view which we have adopted.

2 We are of opinion, therefore, that the power of taxation conferred by the act of 1850, having been carried into the act of 1866, reincorporating the town of Beaufort, “with all the powers and privileges heretofore granted,” amongst which was the power of taxation conferred by the act of 1850, which was then unquestionably unrepealed, and which, by the act of 1879, was extended for the further period of fourteen years, which has not yet expired, still exists, and furnished full authority for the imposition of the tax in question, unless it had been shown, as is not pretended, that the amount of such tax was in excess of the sum necessary and expedient for the good government and other corporate purposes of said towu.

6 Counsel for respondents have, however, according to the proper practice, given notice that if the decision below cannot be sustained upon the ground upon which it was rested by the Circuit Judge, he will insist, here, upon the following additional ground: “That the said ordinance set out in the petition and taxes and assessments thereby imposed, are void and illegal, for the further reason that said ordinance attempts to exempt taxable property from taxation.” It will be observed that this additional question was not made either in the pleadings or proofs below, and was not considered or determined by the Circuit Judge. For while the ordinance as set out in the petition for the writ does show by the concluding words of its second section that “household furpiture of the value of one hundred dollars” was excepted and excluded from the property to be taxed, yet it does not appear that the Circuit Judge was called upon to consider, and he certainly did not consider, the effect of such exception and exclusion. On the contrary, the case below was rested solely upon the proposition that the town council had no power to impose a tax upon the real estate of the relators at a rate exceeding one-fourth of one per cent, of the value thereof.

Under these circumstances it is very doubtful, to say the least of it, whether the respondents are in a condition to make this additional question here. For while it is quite true, as shown by the authorities cited by counsel for respondents, that this court, in reviewing a case upon appeal, may sustain a judgment below for other reasons than those given by the Circuit Judge, yet it seems to us to be a different matter when this court is asked to render an original judgment upon a question not made in the court below. In this case the Circuit Judge was called upon to render judgment upon a single question, and the office of an appeal is to review that judgment, and the only question here is not whether the reasons given for such judgment are souud, but whether the judgment itself is correct. But here the proposition is that this court shall render judgment upon a totally different question, which, so far as we can see, is in no wise connected with or dependent upon the question considered and determined by the Circuit Judge. But as counsel for respondents may contend, and has with some plausibility contended, that, the real question in the case was whether the ordinance imposing the tax in question was valid, it may be assailed as void for any reason; and as the additional question has been fully argued here, we will not decline to consider it in this case, although we do not design to have this regarded as a precedent for any future case.

7 To state this additional question in a practical form: Does the fact that, in the ordinance imposing the tax in question, there is a provision that one hundred dollars worth of household furniture shall be excepted and excluded from the property upon which the tax is laid, render the euti re ordinance void? The affirmative of this question rests upon the provisions of the last sentence in section 8, article IX., of the Constitution, which reads as follows: “And the General Assembly shall require that all the property, except that heretofore exempted, within the limits of municipal corporations, shall be taxed for the payment of debts contracted under the authority of law.” It will be observed that the language is not that all property, except that previously exempted, shall be taxed, but shall be taxed “for the payment of debts.” How as municipal corporations usually have no means of raising money except by taxation, and as there might be danger that municipal corporations might contract debts, and then attempt to evade the payment thereof by exempting property from taxation (an apprehension which subsequent events has fully justified), it may be, and probably was, the object of this provision to prevent such evasion, by requiring all property to be taxed for the payment of debts, but not for any other purpose. But be this as it may, we do not think that it necessarily follows that the trifling exemption above mentioned necessarily invalidates the whole ordinance. While the exemption may be illegal, aud may be declared in a proper case made for that purpose, we see no reason why such illegal exemption should invalidate so much of the ordinance as is valid, unless, perhaps, in a case where it is shown that, by reason of such exemption, the taxes on the property not exempted has been increased; aud in this case there is no such showing, either by allegation or proof. Unless this was shown, the relators are not entitled to the relief claimed; for even granting that the town council of Beaufort have been guilty of an illegal act, the relators are not entitled to invoke relief from an act which, so far as appears, has done them no injury.

The judgment of this court is, that the judgment of the Circuit Court be reversed and that the petition be dismissed.