White v. Town Council

13 S.E. 416, 34 S.C. 242, 1891 S.C. LEXIS 41

• Court: Supreme Court of South Carolina
• Decided: July 21, 1891
• Status: Published

Opinion

The opinion of the court was delivered by

Mit. Justice McIver.

By the act of 1887 (19 Stat., 1163), the town council of Rock Hill is, amongst other things, invested with power “to require all insurance, telegraph, and express companies doing business in said town, and also all transient persons, companies, or corporations of any kind whatsoever, engaged temporarily in any business, profession, or occupation in said town, except such as are engaged as teachers or as ministers of the gospel, to pay to said town such sum or sums of money as a license tax as said town council may by ordinance direct: Provided said license tax shall not exceed the sum of one hundred dollars per annum.” On the 6th of February, 1888, an ordinance was adopted by the said town council, portions of which are set out in the “Case,” for the purpose of fixing the amount of licenses and special taxes imposed for the year commencing 20th January, 1888, and ending January 20, 1889, the fifth section of which reads as follows: “That all persons coming into the town of Rock Hill within said year to engage therein in the business of a merchant for a shorter period than one year, shall severally pay into the treasury of said town a license tax of fifty dollars.”

The following somewhat equivocal statement is made in the “Case” : “The plaintiffs engaged in the business of a merchant in the town of Rock Hill, commencing about June 30, 1888, and continuing for about seventy-five days w.hen they sold out or changed their business from dry goods to produce store. Thereupon demand being made upon them for the license fee of fifty dollars, according to the requirements of the said ordinance, they paid the same under protest and commenced this action before a trial justice to recover back the same.” The case was first heard by a jury, which failing to agree, a mistrial was ordered, and it was again heard by the trial justice, who rendered judgment for the defendant, which, upon appeal to the Circuit Court, was reversed 'and judgment rendered in favor of plaintiffs. From this last mentioned judgment defendant appeals to this court upon the several grounds set out in the record.

1 2 The words which we have italicized in the quotation from the ■“Case” above, render it doubtful, to say the least of it, whether the plaintiffs were amenable to'the tax. For if they simply changed their business from dry goods to groceries, they were still engaged in the business of a merchant, and until it was shown that they were engaged in that business for a shorter period than one year, they did not come within the provisions of the ordinance. The Circuit Judge simply reversed the judgment of the trial justice by a short order, without assigning any reasons; and we are not informed of the grounds upon which he based his conclusion. If he concluded as matter of fact that the evidence was not sufficient to show that the plaintiffs had been engaged in business as a merchant for a less period than one year, then we have no jurisdiction to review such finding. And as there is evidence set out in the “Case” which tends to support that conclusion, we cannot say that there was any error in his judgment.

3 In addition to this, it is at least doubtful whether the tax imposed in this case was legal. Two things are essential to the validity of any tax imposed by a municipal corporation: 1st. The power to do so must be conferred upon such corporation by an act of the legislature; that body having been entrusted with the taxing power by the people through the constitution, which contains a provision (sec. 8, art. IX.)( authorizing the delegation of that high power to the corporate authorities of towns for certain purposes, &c. See Floyd v. Perrin, 30 S. C., at page 15. 2nd. The power thus conferred must be exercised by the municipal authorities in conformity with the terms of the grant. In this case it appears that the town council of Rock Hill has been invested by the legislature with power to require “all transient persons * * * engaged temporarily in any business” to pay a certain license tax, and the said town council has undertaken to exercise this power by passing an ordinance to impose license and special taxes for the year commencing 20th January, 1888, in which it is provided “that all persons coming into the town of Rock Hill within said year to engage therein in the business of merchant for a shorter period than one year” shall pay the tax in question. Nowr, whether the power conferred has been exercised in conformity to the terms of the grant — whether the power to impose such a tax as the one in question upon transient persons, engaged temporarily in business, is properly exercised by imposing such tax upon any person coming into the town to engage in the business of a merchant for a less period than one year — is a question which may admit of some doubt.

4 But waiving that, and assuming that the power was properly exercised, yet inasmuch as there was no evidence that the plaintiffs went to Rock Hill to engage in business as merchants for a less period than one year, and, on the contrary, there was'evidence derived from the terms of the written agreement for the rent of the store for one year, with the privilege of two years, tending to show that the plaintiffs came to Rock Hill to engage in business for at least a year, if not longer, the Circuit Judge was fully justified in reaching the conclusion that the plaintiffs were entitled to judgment.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.