
    The State ex relatione Job Johnston vs. The Town Council of Newberry.
    Corporation— Charter — Taxes.
    The charter of an incorporated- village exempted from taxation all such lands and negroes, within the corporate limits, as shall be “ employed exclusively for agricultural purposes —Held, that a planter, whose plantation extended into the village, and who resided, with all his slaves, on his plantation, within the corporate limits, was liable to be taxed for his lot, residence, and domestic servants, they, although part of an agricultural establishment, not being employed exclusively for agricultural purposes.
    BEFORE GLOWER, J., AT NEWBERRY, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows :
    “ This is an application for a writ of prohibition to restrain the town council of Newberry from collecting taxes imposed, on the relator’s property, real and personal.
    “By an Act of Assembly, passed in 1841, (11 Stat., 162,) the village of Newberry was incorporated, and the limits were confined within ‘one mile in each and every direction from the court house, now standing in said village.’ The Act further provides, that ‘extending the limits of the corporation of Newberry village to an ideal line beyond the lots included by the streets of said village, shall not be construed to render the lands and buildings taken in by such extension any more liable to be ranked as village property, or property contiguous thereto, in the collection of public taxes, than if this Act had not been passed.’
    “ In 1847, the charter of Newberry village was amended, (11 Stat. 439,) and the second section of the Act provides, ‘ That the town council of Newberry shall have power to levy and collect a tax on all the property which shall be liable to a public tax within the corporate limits of the town of New-berry, (except that all real property within the said corporate limits shall be liable as village property,) for the purpose of paying the debts and contracts which may be made and entered into by said town council for the said town of Newberry; which said taxes shall be collected by such person as the town council of Newberry shall see fit to appoint and designate for that purpose; and such person, so appointed, shall have power and authority to enforce the collection of said taxes in as full and ample a manner as is possessed by the tax collectors for the several districts and parishes in this State, for enforcing the collection of taxes by them authorized by law to be collected; and shall be subject to all the pains and penalties for neglecting and refusing to collect and pay over the same to the treasurer, when required, as are by law imposed upon the tax collectors in the districts and parishes in this State for neglect of duty.’
    “ By the sixth section of an Act passed in 1851, to incorporate certain societies and companies, and to renew and amend certain charters heretofore granted, (12 Stat. 114,) it is enacted, ' that the Act incorporating the town of’ Newberry, together with the amendments thereto, be, and the same are hereby extended for fourteen years, with all the rights, powers and privileges heretofore granted, subject to the following amendments, limitations and restrictions, to wit: That in any one year, no tax on the lots, lands and buildings, within the said corporate limits, shall exceed twenty cents ad valorem on every hundred dollars of the value thereof; and that the tax on all other property, free persons of color, employments, faculties and professions, in any one year, shall not exceed fifty per cent, on the State tax levied for the year preceding; provided, that no lands or negroes employed exclusively for agricultural purposes shall be subject to taxation.’
    
      “ The first section of an ordinance to raise supplies for the town of Newberry, for the year 1858, and ratified 12th March, ordains, that “ the value of all taxable real estate within the corporate limits of the said town of Newberry, shall be assessed by the wardens of the different wards, with two freeholders to each warden. All persons not accepting the assessment made by the various wardens and freeholders, are required to make oath of the value of their real estate.’
    “And by the eleventh section it is further ordained, that * if any person or persons shall fail, neglect, or refuse to make a return, (which said return must in each and every case be upon oath,) to the town clerk, [of] his, her or their taxable property, income, sales, or other things taxed by this ordinance, and pay the tax thereon to the town clerk, on or before the first day of June next, then he, she or they, shall be double taxed. And all such persons shall be then assessed by the town clerk, for all his, her or their property, or other things taxable by this ordinance, according to the best information which he can obtain of .the value of such taxable property, sales, income, &c.; and all such persons shall thereon, as aforesaid, be double taxed.’
    “Tírese are of the Acts of the General Assembly, and Ordinances adopted by the town council, to which it is necessary to refer in considering the application.
    “ The principal ground relied on by the relator to restrain the town council from the collection of any taxes upon his property, is, that his is an “ agricultural establishment.” The property on which a tax has been imposed by the Ordinance is within the corporate limits, as defined by the Act of 1841; but it is contended that such property is exempt from taxation by the following provision in the Act of 1851: ‘ Provided, that no lands or negroes employed exclusively for agricultural purposes shall be subject to taxation.’ If this proviso was intended to embrace ' an agricultural establishment,’ then the lands, mansion, and also the negroes employed, either in the cultivation of the soil, or in the performance of menial duties, would seem to be within the terms of the proviso, because a mansion and servants are incident to such an establishment. The exemption, however, is limited to lands or negroes employed exclusively for agricultural purposes. The Legislature seems to have contemplated a case, where, within the corporate limits, the use and labor of some of the lands and negroes might be confined to agricultural, while others, either occasionally or altogether, might be used for domestic purposes. It is the exclusive employment for agricultural purposes which makes the exemption, and not that occasional and divided labor which planters often adopt, that seems to be contemplated by the proviso.
    “ I do not understand that the Ordinance embraces, or that the taxes have been levied upon, lands or negroes employed exclusively for agricultural purposes, which appear to me are alone exempt from the village tax.
    “ It is also objected that the town council has no authority to appoint assessors to assess the value of property liable to taxation. The Act of 1847 authorized the town council to levy and collect the tax, and provides ‘that the taxes shall be collected by such person as the town council of Newberry shall see fit to appoint and designate for that purpose, who is authorized to enforce the collection of said taxes in as full and ample a manner as is possessed by the tax collectors for the several districts and parishes in this State,’ &c. The Act of 1808, (5 Stat., 566,) directs that all persons shall make their returns of taxable property under oath; and in case of refusal or neglect to do so, the tax collector is required to proceed against all persons so refusing or neglecting, by a double tax. The eleventh section of the Ordinance before referred to, (and printed in ‘ the Oonservatist,’ a newspaper published in New-berry village,) appointed the town clerk the collector of the taxes, and requires retprns to be made to him on oath; and all persons failing, neglecting or refusing to comply, are dedared to be subject to a double tax. This is.a substantial compliance with the provisions of the Act of 1808. The clerk is also authorized to assess the value of the property of all persons failing to return and pay their taxes, ‘ according to the best information he can obtain of the real value of such taxable property.’ When no return is made, an assessment by the collector would seem to be a reasonable mode, especially when provision is made (as is done in the first section of the Ordinance,) for correcting an assessment, by the oath of the owners of real estate.
    “ The power to levy and collect taxes conferred on corporations is, I believe, often abused in its exercise, and the taxes are sometimes onerous ; but while corporations act within the scope of their authority, complaints against the exercise of the power of taxation must be addressed to the Legislature.
    “ Not perceiving any ground for restraining the town council of Newberry in enforcing the collection of taxes imposed on the relator’s property, his application for a prohibition is refused.”
    The relator appealed on the grounds :
    1. That there is a clear distinction, manifested in the customs of the country, and evidenced in the legislation of the plantation States, between rural and urban property; by which custom the plantation, with all its incidents, of the owner’s residence, his domestic servants, the slaves employed as plantation blacksmiths, carpenters, weavers, nurses, cooks, &c., and the slaves superannuated for labor, the young ones not yet put to work, and the land, in forest and in old fields, and not actually tilled, are all regarded as one establishment, and are considered as all employed exclusively for agricultural pur poses.
    2. That in the construction of the charter of Newberry, the words “ exclusively employed for agricultural purposes,” should he taken with reference to the custom of the agricultural community: and the employment of property in the incidents of agriculture, as generally practiced, should be regarded as its employment in agriculture; and as exclusively so employed, unless a portion of it be turned permanently or temporarily to some foreign purpose, such as converting a building into a factory, or a house for the sale of goods, &c., or employing some of the slaves to work, as blacksmiths, carpenters, &c., for the public, and not for the plantation — cases contemplated by the charter, and satisfying its phrases, without taxing a planter for residing on his lands, and having domestic servants for himself and his family.
    3. That the portion of property on a plantation kept for a residence and domestic service therein, should be regarded as incidents of that property of which it is a part, and be allowed to take its character from the bulk of that property, rather than perverted; by considering it as incident to village property, from which it is entirely foreign.
    4. That the character of property arbitrarily included within the ideal line, (which was established by terms expressly reserving its inherent character,) should be judged of by that inherent character The ideal corporation line so far from determining that all property lying within it is not agricultural, on the contrary, by the proviso of 1851, distinctly admits that agricultural property may lie within it.
    5. That the property of the relator is, in all respects, like property owned by other planters throughout the district, employed precisely as if it lay in the remotest corner of the district, or as if his residence were on that part of his land outside of the ideal corporate line; and being not benefited, but on the contrary injured, in the traffic with his slaves, and in the corrupting of 'their health and morals, by its proximity to the village, it is not perceived upon what principle of justice' or right, it alone (or with that of a few others, who must always be a minority in the corporation,) should be singled out, more than that of other planters, to pay tribute to the village.
    6. That the charter does not authorize the employment of assessors.
    7. That the charter does not empower the council to tax all property within the artificial village limits, but only property with the exception of agricultural.
    8. That the judgment of his Honor having exempted from taxation all the relator’s property except his residence and house servants, upon the principles of the judgment itself, a prohibition should have been awarded, to protect all but tbe two latter.
    Baxter, McQ-owan, for appellant.
    Summer, contra.
   The opinion of the Court was delivered by

Glover, J.

This is an appeal to reverse the judgment of Glover, J., at chambers, refusing to order a writ of prohibition to restrain the town council of Newberry from collecting taxes levied upon the relator’s property real and personal. In 1841 the village of Néwberry was incorporated, and the extent of the corporate limits was circumscribed by a line “one mile in each and every direction from the court-house now standing in said village.” (11 Stat. 162.) By an amendment of the charter in 1847, (11 Stat. 439,) the town, council was authorized “ to levy and collect a tax on all the property which shall be liable to a public tax within the corporate limits of the town of Newberry, (except that all real property within the said corporate limits shall be liable as village property,) for the purpose of paying the debts and contracts which may be entered into by the said town council,” &c. ■The sixth section of an Act ratified in 1851, (12 Stat. 114,) provides: That' the Act incorporating the town of New-berry, together with the amendments thereto, be and the same are hereby extended for fourteen years, with all the rights, powers and privileges heretofore granted, subject to the 'following amendments, limitations and restrictions, to wit, that in any one year no tax on the lots, lands and buildings within the said corporate limits shall exceed twenty cents ad valorem on every hundred dollars of the value thereof, and that the tax on all other property, free persons of color, employments, faculties and professions, in any one year, shall not exceed fifty per cent, on the State tax levied for the year preceding; provided, that no lands or negroes employed exclusively for agricultural purposes shall be subject to taxation.”

The relator’s property, on which a tax has been levied by the town council, is within the corporate limits, but he suggests, “ That about 1829 he purchased a tract of about one hundred and eighty acres of land in the neighborhood of said village, which, with bodies of land then owned by him, and other bodies since purchased, (all bounding so as to make one body of land,) now amount to about two thousand acres. That the tract of one hundred and eighty acres, first mentioned, is the only one of the' whole which approaches the village. At the time of its purchase the village was not incorporated. That with a view of living out of the village and on his body of land, about 1834, he erected some outhouses at the place where he now lives, and abandoning his residence in the village, removed his family to them in December, 1834, and occupied them until he could erect a dwelling house, which was commenced the latter part of 1836. That the place chosen for these buildings was considerably within the limits of the one hundred and eighty acre tract'of land, and that about 1836 he removed his negroes from their quarter, about two miles from the village, to houses erected for them at his quarter, near his present residence. That he refused to pay any town tax, because his' whole property was an agricultural establishment. That he lives upon a tract of land as purely agricultural as that of any other planter in the district; that he uses it and his negroes on it ‘ exclusively’ as other planters use theirs, and as he would have used his lands and negroes, or would now use them, if he were living outside of the corporation circle aforesaid. He has a house, as every planter has, and he has servants about it as planters have, most of whom labor, as often as they can be spared, in an agricultural way; but neither he nor they are engaged in any mercantile way, nor in the pursuit of any craft or mechanical trade for public gain.” Belying upon these suggestions, the relator contends that all his property within the corporate limits is exempt from a village tax. If the proviso in the Act of 1851 contemplates an “agricultural establishment,” the position is well taken, as all the land constituting, and all the negroes employed upon it, are the necessary incidents of such an establishment. The power conferred upon the town council by the Act of 1847, to levy and collect' a tax, embraces all property liable to a public tax within the corporate limits, and all land is expressly made liable as village property. So much of the land as is included, and so many of the negroes as live within these boundaries, and are not exclusively used and employed for agricultural purposes, are the subjects of such taxes as the town council is authorized to levy and collect. If the intention was to extend the exemption to all lands and negroes within the corporation, where a part only was devoted to agriculture, then the whole tract and all the slaves, including the mansion and menial servants, would be embraced; but the word exclusively negatives tbe presumption of sucb an intention. The Legislature seems to have contemplated a case where, within the corporation, the use of some of the lands and the labor of some of the slaves might be confined to agriculture, while the use and labor of others might be directed to horticulture, or to domestic employments; where to agriculture, it is the exclusive and not the divided employment that constitutes the exemption. An occasional diversion of labor from agriculture to domestic duties may not affect the exclusive employment of it; but when the use of land or service of slaves is not confined to agriculture exclusively, or acquires an agricultural character only as an incident to a plantation, the proviso does not apply. To give effect to the words, we must distinguish'between the use of property strictly agricultural, and the lot and mansion and servants employed in menial duties. Suppose the Act had authorized the imposition of a tax upon all lands and negroes within the corporation, exclusively employed in agriculture, would it be contended that the lot, mansion and domestic servants are included, because incident to “ an agricultural establishment ?” The object of the proviso is to distinguish between lands and negroes cultivated and employed either as rural or village property, exempting the former from, and subjecting the latter to taxation.

As it does not appear, either from the suggestions or from the return of the town council, that a tax has been levied upon lands or negroes “ exclusively employed for agricultural purposes,” the motion to reverse the judgment is dismissed. If such a tax shall be levied, the collection of it will be restrained; or if questions shall arise respecting the character of the employment of the land and negroes, an issue may be proper.

Motion dismissed.

O’Neall, Wardlaw, Withers, Whither, and Munro, JJ., concurred.

Motion dismissed.  