
    The State ex rel. H. P. Walker vs. Town Council and Tax Collector of Mount Pleasant.
    The town oounoil of Mount Pleasant have power, under their charter of 1845, to make assessments and levy taxes on the inhabitants, &c., and enforce-payment “to the same extent, and in the same manner, as is provided by law for the collection and payment of the general State tax — Held, that the authority of the town council was subject to the provision of the Act of 1788, that one believing his property overrated in the assessment, may swear off the excess .
      
    
    BEFORE MUNRO, J., AT CHAMBERS, SEPTEMBER, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ This is a motion for a prohibition to restrain the respondents from collecting a tax, which has been assessed by them upon the relator’s real estate, situate within the corporate limits of the Town of Mount Pleasant.
    “ The following are the leading facts of the case, as set forth in the suggestion:
    “ That the relator is the owner of two lots of land situate in said town, which lots were assessed by the respondents in the year 1853, for the purposes of taxation, at three thousand five hundred dollars, but that the same property has been assessed by them the present year, for similar purposes, as of the value of five thousand five hundred dollars, upon which, a tax has been assessed by them, of five-eighths per cent. That the relator, believing his said property to have been overrated by two thousand dollars by the assessors, claimed the right to swear off that amount, and tendered to the tax collector an oath to that effect, who refused to administer the same, or to make any abatement from said assessment.
    “ All which, the relator alleges, is contrary to the provisions of the Act of the General Assembly, declaring the duties of the inquirers, assessors and collectors of the taxes, passed on the 26th of February, 1788; to the provisions of which, the powers of the Town Council of Mount Pleasant are subjected, by the 23d section of the Act of the General Assembly, passed on the 15th December, 1845.
    “■In the answer of Mr. George F. Kinloch, the Intendant of the Town, he admits that the assessors-appointed by the Town Council had assessed the relator’s real estate as of the value stated in the ' suggestion — ‘that said assessment had been adopted by the Council, who had assessed a tax of five-eighths per cent, thereon — but as the relator had insisted upon his .right to swear off so much as he believed his property to have been overvalued by the assessors, and had refused to pay the tax that had been assessed thereon, the respondent had directed an execution to be issued against him.
    “ It appears that the Town of Mount Pleasant was first incorporated in the year 1837, but without the power of taxation. By the 23d section of an Act passed in the year 1845, an Act amending its charter, the power in question was conferred upon it in as full and ample a manner as will be found in the charter of any incorporated town in the State. It is as follows:
    “ That the said Town Council shall be vested with full power and authority to make such assessment, or to levy such taxes on the inhabitants of Mount Pleasant, or those who hold taxable property within the same, for the safety, convenience, benefit, and advantage of the same, as shall appear to them expedient, &’c. And the said Town Council shall hereafter be authorized to enforce the payment of taxes and assessments levied on the property and pprsons of defaulters, to the same extent, and in the same manner, as is provided by law for the collection and payment of the General State Tax.
    
      “ The position assumed by the relator, in 'the suggestion, and which, by the way, was more fully developed in the argument, is, that by the express terms of the 23d section of the Act of 1845, the powers of the Town Council are subjected to, and controlled by, the provisions of the 6th section of the Act of 1788, by which section, a party who believes his property to have been over assessed, is permitted to swear off before the collector, the amount he believes it to have been overrated. But a reference to the language of the section in question, will at once show, that the construction attempted to be put upon it is wholly untenable ; for, with becoming deference to the intelligent counsel who prepared these proceedings, and argued the motion, I think I hazard nothing in saying,..that there cannot be found in the whole of the section, a single word or phrase, which, by any legitimate rule of interpretation, is susceptible of such a construction — or that has even the most remote reference, either to the Act of 1788, or to the subject matter of any of its provisions. It is true that the concluding part of the section does contain a reference to another legislative enactment; but such reference, it will be seen, is not to the Act of 1788. On the contrary, it refers in the most explicit terms, to an entirely different statute — the statute prescribing the . mode and manner of collecting the public revenue. But if the language of this section be at all susceptible of the construction contended for, the reference to the Act of 1788 must be general — that is, it must be to the whole of the Act, and not to any particular section of it. By referring to the Act, it will be seen that it contains in all — sections. Where, then, it may be asked, is the authority for restricting such reference to the 6th section and its provisions, to the entire exclusion of all the others ?
    “ But if we take into view the entire scope and design of the Legislature in passing the Act of 1845, it is manifest that it could never have been the intention of that body to subject the Town Council to any one of the provisions contained in the Act of 1788, and more especially to those contained in its sixth section.
    “ Having withheld from this corporation, in its original charter, the power of taxation, it was clearly the intention of the Legislature to confer- upon it, for corporate purposes, this important power, in all its amplitude: ■
    “ This it has done by the 21st section of the Act, in which it is' declared, in language clear and unambiguous, ‘ that the said Town Council shall be vested with full power and authority to make such assessments, or to levy such taxes on the inhabitants of Mount Pleasant,’ &c.
    “From this comprehensive and explicit delegation of power, the authority of the Council to create, and put in motion, all the corporate machinery necessary and proper to carry it into effect, for the safety, convenience, benefit, and advantage of the said Town, as shall appear to them expedient,’ is derived by necessary and legitimate implication.
    “ Among the first things that appear to have occupied the attention of the Council after obtaining this newly acquired power, with the view of carrying it into effect, and of imparting to it efficiency, was the passage of an ordinance on the 26th February, 1846, entitled ‘ An Ordinance for the appointment of Town Assessors, and defining their duty.’
    “ Here, then, we find the Town Council of Mount Pleasant, on the 26th February, 1846, and by virtue of the authority vested in it by the amendment to its charter, employed in the identical task that had occupied the attention of the Legislature on the 27th day of February, 1788, namely, the enactment of a law, which, in its title, in its objects — nay, in all its essential provisions, with' but one exception, is identically the same.
    “If, then, it be conceded that the Town Council really possessed the power to pass such an ordinance, for the appointment of appraisers, &c., what was there, it may be asked, to have prevented it from adding another clause to it, containing the very same, or similar provisions to those contained in the 6th section of the Act of 1788, for it is obvious that all these several provisions — that is, those contained in the Ordinance of the Town Council, as also those contained in the 6th section of the Act of 1788, trace their origin to the same source, and are but kindred incidents of the same original power — the power to make assessments, &c.
    “ Why the Town Council has hitherto abstained from adopting such a provision, it is not for me to say. This is a matter that rests exclusively between that body and its constituency. This much, I, however, will venture to say, that however long the adoption of such a provision into its municipal code, may remain with that body a question of expediency, I feel assured it can never be made a question of power.
    “I would merely add in conclusion, that until the foregoing position I have attempted to sustain can be successfully .controverted, we cannot attribute to the Legislature, without speaking of that body in language that would be indecorous, an intention to engraft upon the amended charter of this Corporation — the Act of 1845 — the conflicting provisions contained in the 6th section of the Act of 1788.
    “ Entertaining these views of the case, I cannot do otherwise than refuse the motion.”
    The relator appealed on the grounds :
    1. That his Honor’s construction of the Act of 1845 is erroneous.
    2. And that an admitted over assessment of two thousand dollars is a wrong for which the law must afford some remedy, and that the relief sought by the relator is the most complete and proper.
    
      S. P. Walker, for appellant.
    
      Bailey, contra,
    
      
      
         It is a matter of some doubt whether the clause of the Act of 1788, upon which this decision was made, has not been repealed. It is omitted altogether by Brevard, (See 2 Dig. Title, 162.) In 5 Stat. at Large, 50, it is printed as section 6, and an Act passed in 1799, (5 Stat'. 366,) repeals the 6th section of the Act of 1788. On the other hand, in P. L. the Act of 1788, as there published, contains but eight sections — ;the 6th section in that publication corresponding with the 25th in Stat. at Large. A. reference to the original Act itself can alone remove the doubt.- - R.
    
   The opinion of the Court was delivered by

Wakdlaw, J.

The 23d section of the Act of 1845, (11 Stat. 320,) gives to the Town Council of Mount Pleasant full authority in making assessments and levying taxes. Under this authority, the Town Council may ordain, in respect to the persons liable to the jurisdiction, as effectually as the Legislature may enact in respect to all the citizens of the State, what rate in proportion to value shall be imposed upon land or other property, what articles shall be specifically taxed, and how much the taxes upon specified articles shall be. The section further provides, that the Town Council may enforce the payment of taxes and assessments ordained by it, to the same extent and in the same manner as is provided by law for the collection and payment of the General State Tax.

A reference to the Act of 1788, (5 Stat. 50,) and to the other Acts of the Legislature concerning the collection of taxes, will show the general scheme for the collection of State taxes to be this : to wit. : persons liable to taxes are required to make returns on oath ; the assessor, (who, in general, is the same as the tax collector, but in St. Philip’s and St. Michael’s is a different person,) fixes the value of property assessed where an assessment or ad valorem tax is imposed, and the amount of each person’s liability is ascertained ; on or before a prescribed day payment is to be, made to .the tax collector by each person liable to pay; at the time when he is required to pay, any person who may have reason to believe that he has been overrated, is allowed to swear off the excess; if payment of the whole, or of the balance after excess sworn off, should not be made, process of execution is issued and enforced by the sheriff: if no return should have been made, the execution is for double the amount, which the collector may judge the defaulter ought to be rated at.

Proceeding in conformity with the State Law, the Town Council, for the collection of its taxes and assessments, has appointed assessors to assess according to a scale that will bear equally on all; it has appointed a treasurer to receive returns and payments; it has required returns to be made to the treasurer, and payments to be made to him, by a prescribed day, and it has directed executions against defaulters, which shall be for double taxes when returns have been neglected. But it has refused to allow the relator, who says he has been overrated, to swear off the excess, although he offered to do so on or before the day appointed for payment.

If five-eighths of one per cent, upon the value of the relator’s house and lot was to be collected under an Act, laying a general State Tax, no tax collector could, by any process, collect an excess over the rate according to that value which the relator would, in proper time, swear to ; and no power is given to the Town Council to enforce its ordinance for an assessment to a greater extent than a State Act to raise supplies could be enforced.

It has been argued for the Town Council, that the latter clause of the section above mentioned, refers merely to the collection of taxes not paid without process of execution, and was intended to confer power, not to restrain it; to authorize the employment of well known process, and of State Officers, not to impair the right of the Town Council to make such ordinances as might appear to it expedient, concerning its taxes and assessments. But the extent to which process may be enforced, is of course the measure of the extent to which payment without process will be made; and the effect of an enactment which establishes identity of extent and manner between the enforcement of town taxes and the enforcement of State taxes, is, whilst it giveá authority conformable to the provisions of the State Law, to deny authority beyond and contrary to those provisions. Could a Town Ordinance subject a defaulter for neglect to make his return to more than double taxes ? The Town Council seems to understand that it could not. And as the State Law imposes a restraint upon the discretion of the State assessor, so a like restraint must be imposed upon that of the Town assessors. The policy of exacting oaths on such subjects has been much questioned, but the Legislature has required them and given them effect here, and the council cannot deny their sufficiency.

The motion is granted and the prohibition is ordered according to the prayer of the relator’s suggestion.

ONeall, Whitker and Glover, JJ., concurred.

Muhro, J., dissented.

Motion granted.  