
    
      W. McNulty v. Wilson et al. — the Town Council of Georgetown.
    
    By the Act incorporating Georgetown, the power of levying a poll tax on all persons not freeholders, is granted to the Town Council: This power was held to have been legally exercised against a citizen who from not making any return of, nor paying any tax on real estate, was not known as a freeholder.
    The patrol law of 1839, transferring to and vestingin the municipal police of the several incorporat'd towns and villages of the State, the power and duty of superintending and regulating the patrol within the same, vested the said power unrestricted, as it had before existed in the military Courts; therefore in the imposition and collection of fines for default in the performance of patrol duty, the Town Council of Georgetown are not restricted to twelve dollars; nor are they required_in all cases where the fine exceeds that sum to sue in the Court of Common Pleas, as under their charter they are required to do in like cases where the fine has been imposed for the violation of their ordinances.ia relation to other matters.
    
      Before Evans, J. at Georgetown, Fall Term, 1849.
    SUM. PRO. IN TRESPASS.
    It appeared from the evidence, that the Town Council oí Georgetown had issued two executions against the plaintiff, one for a p0U tax, amounting to a small sum, two or three ' dollars, aud another for a fine for not performing patrol duty. fptie Town Marshal had levied these executions on the plaintiff’s goods, and it was for this levy that the action was brought. JJy the act incorporating Georgetown, the power of levying a poll tax on all persons not freeholders, is granted to the Town Council. The Clerk of the Council said that the plaintiff made no return of any real estate, and paid no tax. He exhibited on the trial, aud showed it to the Town Clerk, a deed from one J. W. Coachman, for a lot which he had purchased for two dollars. There are in Georgetown many vacant lots of little value, belonging to persons unknown, upon which no taxes have been paid. These have been sold, from time to time, by the Council, for the taxes due on them. The lot which the plaintiff claims to own, was one of these. It had been sold for a term of years, and the plaintiff had purchased it, hoping thereby to put himself out of the list of those liable to poll tax. So little was said about it on the trial, that the Circuit Judge said he did not consider it one of the points of the case, and was surprised to find it the subject of one of the grounds of appeal. That it was not read, and he was unable to say whether it was in fee or for a term of years. He presumed it was the latter, as the Council had no power to sell except for a term of years.— That if it were so, then he was not a freeholder, and. in any event the Council had a right to regard him as liable to the poll tax, as he had made no return of this property as a subject of taxation.
    The right to issue the other execution was more doubtful. By the Act of 1795, incorporating Georgetown, the jurisdiction of the Council is limited to twelve dollars. The fine imposed on plaintiff for various defaults in not performing patrol duty, exceeded that sum. He was regularly summoned to appear and make his excuse. He appeared, and the only excuse offered was, being a post master, he was not liable. The excuse being deemed insufficient, he was fined for various defaults, the aggregate of which was about seventeen dollars, and for that sum an execution was issued.— This was clearly beyond ihe jurisdiction of the Council, according to the charter But, by the Act of 1839, the power of regulating and enforcing the patrol law is vested in the corporations of the towns and villages. His Honor was of opinion that this transfer of the police power of patrol carried along with it all the powers of the military court, within whose cogtiizance the subject had been before that time. He said he could not suppose that the Legislature could have meant that for non-perfomance of patrol duty within the limits of the corporation of Georgetown-,'the Town Council must sue in the Court of Common Pleas, if the amount of the fine exceeded twelve dollars, while the Company Court Martial, in the military beat adjoining the town, could fine to an unlimited extent. He was, therefore, of opinion the case was within the jurisdiction of the Town Council, and, therefore, trespass would not lie. That if the plaintiff had any remedy, it was prohibition to restrain the Council from proceeding, or after they had acted, an action on the case, for any irregularity or abuse of their power. The plaintiff, on motion of the defendants’s counsel, was non-suited.
    The plaintiff moved, in the Court of Appeals, to have the non-suit set aside, on the following grounds;
    1. Because his Honor erred in deciding that by the enactment conferring upon Incorporated Towns the power to regulate the patrol duty, the jurisdiction of the Town Council of Georgetown was extended to sums beyond the limit fixed by the charter.
    
      2. Because his Honor erred in deciding that an execution for a poll tax, issued against one who was not, as a freeholder, liable to such tax, was valid and not illegal.
    3. Because his Honor erred in deciding that defendants were not liable in an action of trespass, and that plaintiff’s only remedy would be an action on the case,
    
      Mitchell, for the motion.
    
      Munro, contra.
   Curia, per Evans, J.

That the plaintiff, under the facts of the case, was liable to the poll tax, there can be no doubt. If he was a freeholder and liable to land tax, he should have made a return of his property. The Council could only know who were exempt from poll tax by the payment of the land tax, and as the plaintiff had not done this, the Council had a right to require, of him the payment of the capitation tax.

By the Act of 1795, incorporating Georgetown, certain municipal powers are granted to the Council, in relation to streets, maikets, &c. and they are empowered to levy fines' for violation of their ordinances to the amount of $100, but in all cases where the fines, &c. exceed twelve dollars, they are required to sue for them in the Court of Common Pleas. the power of superintending and regulating the patrol had been among the powers originally granted, there could have been no doubt that they could not have issued an execution for a sum as large as $17. By the Act of 1839, regulating th ! patrol, “ the power and duty of superintending and regulating the patrol within the several incorporated towns and villages of this State, be and the same is hereby vested in and devolved upon the municipal police of the said towns and villages, who are hereby vested with full powers to make all such ordinances relative to the time and manner of performing patrol duty within the said towns and villages, necessary to preserve the good order, peace and safety of the same.” The question made in this case is, whether the power of the Town Council in the imposition and collection of fines for the default in the performance of patrol duty, is restricted to twelve dollars; and in all cases above that sum, must they sue m the Court of Common Pleas?

The patrol laws constitute a system of police regulations for the government of our slaves. In all the country parts of the State, and formerly every where except in some of the larger towns, the regulating and superintending the execution of it was vested in the militia officers, and in the military Courts. But this was a mere matter of expediency.— The power might just as well have vested in any other persons or jurisdictions. There would seem to be a peculiar fitness in giving it to the municipal police of the towns and villages. There it was more likely to be regularly enforced, because a greater necessity exists in the towns and villages, than in country places. Accordingly, in the patrol law of 1839, we find a general law transferring the jurisdiction from the military to the municipal police of the towns.

In doing this, did the Legislature intend to vest the power unrestricted as it had before existed in the military Courts ? or did the Legislature intend to subject it to such limitations of the municipal powers of the corporations as had been imposed in relation to other matters? To my mind it is very clear the former was intended. The words used, “ regulating and superintending,” are broad enough to carry the whole power, and I can conceive of no argument of expediency which would incline the mind to a contrary conclusion.

In the case of The State v. The Town Council of Beaufort, it was decided, under a similar grant of power, that the Town Council had the power of prescribing by ordinance who should perform patrol duty and the penalties for nonperformance, and also the power of imposing fines, and enforcing their collection by their usual process against the property and persons of defaulters. This is all that is claimed by the Town Council of Georgetown, and I am of opinion this power is fully granted by the Act of 1839.

The motion is dismissed.

Richardson, Wardlaw and Frost, JJ. concurred.

Motion refused.  