City Council v. Ashley Phosphate Co.

34 S.C. 541 | S.C. | 1891

The opinion of the court was delivered

MR. Justice McIver.

These two cases, though not involving all of the same questions, turning, as they do in our judgment, upon the same question, may be considered together. Both were brought to recover the amount of certaiii license taxes'which plaintiffs claimed defendants were liable for under an ordinance passed by the city council of Charleston, which will be more particularly referred to hereinafter. In each of the cases a demurrer was interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and in each case the demurrer was overruled, and the defendants appeal, raising this question common to both of the cases, though there are other questions raised in the last case, which, under the view we take of the demurrer, cannot properly arise and will not therefore be considered.

We do not deem it necessary to set out in detail the several allegations contained in the complaints, though copies thereof should be inserted in the report of the case, for it is sufficient to say that in both of the cases the actions were brought to recover the sums which the ordinance, incorporated in the complaint in the second case, or rather made a part thereof as an exhibit, required persons or corporations engaging in the business in which it is claimed defendants were engaged, to pay for a license to carry on such business within the city of Charleston. It is true that the ordinance imposing the license tax, sued for in the first action, is not set out in the “Case,” but the allegation of the complaint in that action shows that by such ordinance persons engaging in the business in which it is alleged defendants were engaged, were required to take out a license and pay therefor the sum of five hundred dollars, and the further allegation is made that defendants have neither taken out such license, nor paid the sum required for that purpose. But there is no allegation that plaintiffs have been authorized, either by statute or ordinance, to enforce the payment of such sum by suit, and no such statute has been brought to our attention. Nor is there any allegation in the complaint that no other mode has been provided, either by statute or ordinance, to enforce such payment.

In the second case, however, brought to recover the amount of the license tax for the year 1890, the ordinance imposing that, tax, which is made a part of the complaint, does show that another remedy has been provided, for the 3rd section contains this provision: “If any person or persons shall exercise or carry on any trade, business, or profession for the exercising, carrying on, or doing of which a license is required by this ordinance, without taking out such license as in that behalf required, he, she, or they shall for each and every offence be subject to a penalty not exceeding $100, as may be adjudged by the recorder or court trying the case. And the same shall be entered up as a judgment of the court, and execution shall issue against the property of the defendants as for the collection of other taxes and penalties.”

This provision would seem to afford a most efficient remedy, for if a person should fail to take out a license as required and continue business for any length of time, being liable'to the penalty “for each and every offence” these penalties, under the decision in Jaeger s ease (29 S. C., 446), might be swelled to a very large sum — much larger than the sum required to be paid for the license. Whether the ordinance imposing the license tax for the year 1889, for the non-payment of which the first action was brought, contains a similar provision, we are not informed, but from the fact that these two cases were submitted together, and our attention was not drawn to any difference between them in this respect, it would be reasonable to suppose that the two ordinances were substantially the same in this respect; but as we are perhaps not at liberty to assume this to be so, we have called attention above to the fact that there is no allegation in the complaint in the first case that no mode of enforcing the payment of the tax has been prescribed by any ordinance.

1 Confining our attention for the present to the first case, it seems to us that the practical question presented is whether a bare statement that a license tax has been imposed, that such license tax has not been paid, and that no license has been taken out, is sufficient to constitute a cause of action for the recovery of the amount required to be paid for such license. By the act of 1881 (17 Stat., 582), the city council of Charleston have been authorized “to require the payment of such sum or sums of money, not exceeding five hundred dollars, for license or licenses, as in their judgment be just and wise, by any person or persons engaged, or intending to engage, in any calling, business, or profession, in whole or in part, within the limits of the city of Charleston, except those engaged in the calling or profession of teachers and ministers of the gospel,” And by the second section of that act, the said city council are expressly authorized “to pass such ordinances as are necessary to carry the intent and purposes of this act into full effect.” It is very manifest from the whole frame of the act that its main intent and purpose was to enable the city council, in addition to its other means of raising a revenue for the use of the corporation, to impose a license tax, and certainly to carry such purpose-into full effect, it was necessary to provide the means for enforcing the payment of such tax. Accordingly, by the second section, the city council were invested with power to pass such ordinances as might be necessary to enforce the payment of such tax. But there is no allegation in this complaint that any such ordinance has- ever been passed.

2 It is true that the complaint does contain an allegation that “the plaintiffs, on the 27th day of December, 1888, for the purpose of raising a revenue, and in exercise of the taxing power, passed an ordinance entitled ‘An ordinance to regulate licenses for the year 1889,’ whereby, infer alia, it is provided that phosphate rock mining or manufacturing companies or agencies engaged or intending to engage in business in said city shall, on or before the 20th day of January, A. D. 1889, obtain each a license therefor, and shall be required each to pay for the same the sum of five hundred ($500) dollars.” But there is no allegation that such ordinance, thus referred to by date and title, contained any provision authorizing the enforcement of the payment of such license fee by suit or otherwise, as the act above referred to authorized ; nor is there any allegation that such ordinance contained no provision at all for the enforcement of such payment. The reference to this ordinance by date and title is not sufficient, for, as is said in 1 Dill. Mun. Corp. (4th edit.), section 346, “The courts, unless it be the courts of the municipality, do not judicially notice the ordinances of a municipal corporation, unless directed by charter or statute to do so. Therefore such ordinances when sought tobe enforced by action, or when set up by the defendant as a protection, should be set out in the pleading. It is not sufficient that they be referred to generally by the title or section,” though probably they need not be set out in haec verba, a statement of the substance with reference to the date, title, and section being sufficient. See also Information v. Oliver, 21 S. C., 323. Here, however, there is no allegation that the ordinance in substance provides for the enforcement of the payment of the license fee by action.

It seems to us, therefore, that the allegations in this complaint are not sufficient to constitute the cause of action sought to be enforced therein; but that a further allegation was necessary for that purpose, either to the effect that provision had been made in the ordinance, as authorized by the act of 1881, supra, for the enforcement of the payment of such license tax by action, or that no provision whatever had been made for that purpose, which would have raised the question whether, in the absence of any provision at all, the Court of Common Pleas, by virtue of its general jurisdiction, could enforce a right conferred by an ordinance of a municipal corporation by an ordinary action, where no other mode of doing so has been provided by the ordinance. Of course, these views are based upon the assumption that neither in the charter of the city nor in any other statute is there any provision authorizing the enforcement of the payment of taxes imposed by the city council by an ordinary action, for no such provision has been brought to our attention, and we are not aware of any. It is true that the counsel for respondents, in his argument in the second case, has cited us to certain sections in the revised ordinances of the city of Charleston, ratified 26th of September, 1882, containing such provision ; but, as wre have seen, the court cannot take judicial notice of these ordinances, and they have not been set forth in the complaint, either in haec verba or in substance.

3 The act of 1 March, 1870 (14 Stat., 409), also referred to by counsel in this connection, cannot affect the question for two reasons : 1st. Because so much of that act as relates to license taxes has been declared unconstitutional in the case of the City Council of Charleston v. Oliver (16 S. C., 47), and therefore so much of the provisions of that act as relates to licenses must be regarded as if no such act had ever been passed. 2nd. Because even that act does not purport to give the city council authority to enforce the payment of taxes by action; but in the section specially referred to, simply declares that the collection of taxes “shall be made by such officer or officers and at such time or times as the city council may direct,” and the last section of that act contains the same provision quoted above from the second section of the act of 1881.

So that while it is true that the legislature have by statute conferred upon the city council the power to provide the manner in which the payment of taxes may be enforced, the pleadings in this case do not show that such power has ever been exercised. Ordinarily the payment of taxes, whether imposed by State or municipal authority, is not enforced by action, but some more summary and speedy remedy is usually resorted to. As is said in Cooley on Taxation, 13, quoted with approval in Oliver’s case, supra: “Taxes are not debts in the ordinary sense of that term, and their collection will in general depend on the remedies which are given by statute for their enforcement.” It seems to us, therefore, that when a municipal corporation resorts to the unusual remedy of an .action, it must allege and prove its authority for so doing.

4 We come next to the consideration of the second of the cases above stated, in which the ordinance imposing the license tax sued for is made a part of the complaint. Here we find that the 3rd section of the ordinance above set out, does provide another remedy, and what seems to bo, under the views announced in Jaeger's case, supra (29 S. C., 446), a most stringent one. It is there expressly provided that if a person required to take out a license shall fail or refuse so to do, he is liable to a penalty; but there is no provision that he may also be required to pay the license fee by an action for that purpose. Practically he is offered the option either to take out the license by paying the amount specified, or be subject to the penalty px-escribed by the 3rd section of the ordinance. There is no warrant in the ordinance for requiring both ; for there is not only no provision in the ordinance that the payment of the license fee may be enforced by an action for the same; but there is an express provision that if he fails to obtain the prescribed license, he is liable to a heavy penalty. In this respect the ordinance now under consideration differs widely from that which came under review in Oliver s case, supra; for in that there was an express provision that if any person shall pursue any of tho occupations requiring a license without taking out one, he “shall, besides being liable to the payment for the license, be subject to a penalty of twenty per cent, of the amount of such license, to be sued for and collected in the City Court, or any other court of competent jurisdiction, or to imprisonment not exceeding thirty days, as may be adjudged by the recorder.” But in the present ordinance the only provision made is, that the failure to take out a license when required subjects one to the penalty prescribed by the 3rd section of the ordinance.

It seems to us, therefore, that the city council of Charleston having been invested with authority to require the payment of such sum as they may deem just for a license, and having been specially authorized by the same act (1881, supra) “to pass such ordinances as are necessary to carry the intent and purpose of this act [which, as we have seen, was to raise revenue by requiring the payment of license fees] into full effectand the city council having passed no ordinance, so far as appears in this case, to carry such intent and purpose into full effect, except the ordinance providing that a failure to pay the amount required for a license will subject one to the penalties prescribed, they are confined to the mode which they have prescribed for enforcing the payment of license fees, and cannot resort to any other. We are therefore of opinion that the demurrers in both of these cases should have been sustained, upon the ground that the complaints in both of the cases fail to state facts sufficient to constitute a cause of action.

The judgment of this court is, that the judgment of the Circuit Court, in each of the cases stated above, be reversed.