
    
      The City Council of Charleston vs. Thomas D. Condy, survivor of Condy & Dawes.
    
    The City Council of Charleston have not the power to impose a tax on sales at auction of lands and slaves, 
      
    
    
      Before Frost, J. at Charleston, October Term, 1850.
    The report of his Honor, the presiding Judge, is as follows: Assumpsit for $479 20, being the amount of a tax imposed by a City Ordinance on sales at vendue, which was retained by Condy and Dawes, on their sales of lands and slaves, for two quarters, ending the 20th March, 1849, and which was demanded by the plaintiffs, as had and received to their use. Plea. — That after Condy & Dawes had made returns, shewing $479 20, to have been retained by them for the tax on sales of lands and negroes, and before paying over the amount to the plaintiffs, the payment was forbidden by the owners of the property ; on the ground, that the City Council of Charleston have no authority to impose such tax on the sale of lands and slaves. Demurrer and joinder.
    
    “ The question made by the demurrer, presents for construction several Acts of the Legislature.
    “ By ‘ an Ordinance for regulating the public vendues in this State,’ enacted in 1785, (4 Stat. 670,) all Auctioneers and Ven-due Masters were required to retain, out of all sales of ‘ ships, boats or other vessels, lands, slaves, and houses, one per cent;’ and out of all sales ‘ of horses, cattle, goods, wares and merchandize, two and one-half per cent;’ whether the said sales ■were made at ‘public vendue or private sale;’ which tax, so received by them, the auctioneers and vendue masters were required to pay to the commissioners of the Treasury, ‘ once in every three months, for the use of the State; except sales of the property of deceased persons, and of insolvent debtors, and sales .upon auction for debts or effects seized and sold under execution,’ and sales under a decree in Chancery. By an Ordinance, enacted in 1788, (5 Stat. 81,) so much of the Ordinance of 1785 ‘ as imposed duties on lands and negroes, to be sold at public auction,’ was ‘repealed.’ By an Act passed in 1809, (5 Stat. '612,) ‘ so much of the Acts and Ordinances of the. State as direct ‘that a duty or tax shall be levied and collected on sales at vendue,’ was repealed; and it was further enacted that, ‘ the City Council of Charleston be authorized and empowered to levy and impose any duty or tax they may think fit and proper, on sales at vendue, within the corporate limits of the said City of Charleston; provided, nevertheless, that the said duty or tax be not imposed or levied on any sales of such property as has heretofore been exempted from said duty or tax.’
    “ By an Ordinance of the City Council of Charleston, made in 1818, auctioneers and vendue masters are required, out of the sales, by them made, at public auction or vendue, of all houses, lands, slaves, &c. to retain one per cent, to be paid into the City Treasury; but sales of the property of deceased persons, of insolvent debtors, of incorporated societies, and sales by the order of any Court of Justice, were declared not subject to the tax.
    “ By the Act of Incorporation, passed in 1783, the City Council of Charleston were empowered to ‘ make assessments on the inhabitants of Charleston, or those who hold taxable property within the same.’ It so appears, and is conceded, that the power of the City Council to tax sales, at vendue, is wholly derived from the Act of 1809.
    “ What is the meaning of ‘ exempted,’ in the proviso of the Act of 1809, that ‘the said tax or duty should not be imposed or levied on any sales of such property as has heretofore been exempted from said tax or duty V The highest authorities give to that word the signification of ‘ freed or permitted to be free from any charge, duty or tax ‘ not subject, not liable to.’ By the Act of 1788, lands and slaves had been freed from' the tax on auction sales, and for more than twenty years prior to the Act of 1809, had not been subject or liable to that tax. If the intrinsic meaning of the proviso is to be pursued in giving to it operation and effect, it seems clear that, for many years before the Act of 1809, lands and slaves had been, by the State, exempted or permitted to be free from the tax on sales at vendue; and, therefore, ‘the said tax or duty’ cannot ‘be imposed or levied’ by the City Council.
    “ If the meaning of the proviso is sought, extrinsically, in the motives and policy which might have dictated the terms of the grant, nothing can be found of sufficient force to wrest the words of the proviso. When the State repealed its own.tax on sales at vendue, and granted to the City Council of Charleston power to tax them, thereby relinquishing a part of its own revenue to the City, it was proper to secure, against the act of the City Council, under the exercise of that power, the continuance of those exemptions which, from regard to public policy, the State had theretofore allowed. The tax on sales at auction is not ‘ an assessment on the inhabitants of Charleston, or of those who hold taxable property within the same,’ and such sales are not, at least to the extent to which the power was granted, the subject of corporate taxation. The lands, comprised in a large section of the State, with the slaves employed in cultivating them, the property of persons not inhabitants of the City, are brought there for sale. It may have been deemed expedient, by the State, to protect lands and slaves so situated from corporate taxation. If it be objected that the exemption is not confined to lands and slaves, so situated; yet, still, the operation of the proviso, for their exemption, may have determined its enactment. The State may have thought fit to identify the sale of lands and slaves with the products of domestic growth and manufacture, in the policy which exempts the latter from the tax on merchandize.
    “ It has been argued that the proviso of the Act of 1809 only includes the sales excepted by the Act of 1785. It is a certain, fact that, before 1809, sales of lands and slaves had, by express enactment, been ‘ made free’ from the auction tax, and were no more ‘subject or liable’ to it than those sales excepted by the Act'of 1785 ; and were equally exempted, in the proper meaning of that word, as it is used in the proviso. It was competent for the Legislature to add as many exceptions to those granted by the Act of 1785, as might be thought proper.
    “ I do not think the distinction can be maintained, that the sales excepted by the Act of 1785, are exempted by the terms of the proviso, because they were made exceptions in the Act which imposed the tax ; but that sales of lands and slaves are not exempted, because the Act of 1788 only repealed the tax on such sales; and that the effect of such repeal is the same only as if the State, had omitted to tax such sales. The exemption was as complete by ■ the repeal of the tax, as by an exception from the operation of the Act imposing the tax.
    ■ “ A distinction between an omission to tax, and an exemption from taxation, is admitted, to this extent, that if the .State de-dares a particular subject to be exempt from taxation by the City Council, it cannot be taxed by that body; but if the State only omits to tax any subject of corporate taxation, the City Council is not restrained by that omission. But in reference to the State, whatever the State does not tax, is exempt, that is, ‘permitted to be free from a duty or charge’ to which other property is subject. The distinction, however, does not apply to this case. The subject of the disputed tax is, not property, but the sale of property. The State had taxed sales before 1809, but had exempted the sale of lands and slaves from the tax. The power of the State to tax sales, was granted to the City Council, on the express condition that the tax should ‘not be imposed on the sales of such property’ as had, before the time of the grant, ‘been exempted,’ by the State, ‘from said tax or duty.’
    “ Judgment was given in favor of the defendant.”
    The-plaintiffs appealed, and now moved this Court to reverse the decision of his Honor, the Circuit Judge.
    
      W. D. Porter, City Attorney, for the motion.
    
      McCrady, contra.
    
      
       If the Act of 1787, sections 10 and 15 — (5 Stat. 10-11, P. L. 419) be compared with the Acts referred to in the Circuit opinion of his Honor, Judge Frost, it would seem that the 10th section of the Act of 1787 was the law of force in 1809. If so, sales of lands and slaves at auction were subject to a State tax of one per eent. up to the year 1809, when the power to tax sales at auction was transferred to the City Council of Charleston, R,
    
   Per Curiam.

This Court concurs in the judgment of the Court below, for the very satisfactory reasons given by the Judge.

The motion is dismissed.

O’Néall, Evans, Frost and Withers, JJ. concurring.

Motion dismissed.  