
    
      The Mayor and Aldermen of the City of Charleston ads. The State of South Carolina, ex relatione James Adger.
    
    1. The taxing power of the Mayor and Aldermen of the City of Charleston is confined, under the City Charter of 1783 and the Act of 1836, 1st. To the inhabitants of the City at discretion. 2nd. To the taxable property within the City of non-residents; and 3rd. To the income of non-residents from professions carried on in the City. Therefore, held that an assessment laid by an Ordinance of the Mayor and Aldermen of the City, upon the carriage, horses and driver, of a citizen not residing within the corporate limits of the same, but carrying on the business of a Factor and Commission Merchant within the City, and which property so assessed he kept without the City, and used in going to and from his place of business, is not authorized, either under the powers conferred by the Charter or the Act of 1836.
    2. Where a non-resident of the City of Charleston places his slave expressly under the Police regulations of the City, by purchasing a Badge to authorize him to ply for work within the City regulations, such slave becomes taxable property within the City, in the proper sense of those terms of the Charter of 1783, notwithstanding the rule of the domicil and its general application to personal property. But the tax laid on such slave is not to exceed the general tax on the slaves of the inhabitants of the City.
    
      Before Richardson, J. Charleston, October Term, 1843.
    This was a suggestion for prohibition.
    The relator, James Adger, resides on Charleston Neck, without the limits of the city, and carries on business within the city, as a factor and commission merchant, at his office on Hamilton & Co.’s Wharf. He uses a four wheeled carriage, drawn by two horses, in passing and repassing between his residence without the city and his place of business within the same, and elsewhere, within the city, as may suit his pleasure or convenience. He also hires out his slave, Thomas, as a day laborer within the city.
    The suggestion alleges, that the Mayor and Aldermen of the city of Charleston have, by their tax ordinance, ratified on 20th March, 1843, imposed on him, not being a corporator, and not residing within the city, the following taxes and assessments, for the year 1843, to-wit:
    1. A tax of twenty-five dollars on his said carriage, having four wheels, and drawn by two horses.
    
      2. A tax of five dollars on each of his said horses, kept and used with the said carriage.
    3. A charge, or assessment, of eight dollars for a badge to his slave, Thomas, employed as a day laborer within the city.
    4. A tax of seven dollars on his said slave, Thomas, in addition to the price of the said badge.
    And that the Mayor and Aldermen have lodged tax executions with the city sheriff, for double the amount of the above-taxes and assessments, against the property of the relator, with orders to levy thereon.
    The relator, by his suggestion, submits to the court, that the Mayor and Aldermen have no right, power, or authority, to impose any tax whatever on the horses and carriage of the relator, kept without the limits of the city, and used in passing to and from his lawful business; but that the streets of Charleston are public highways, free for all persons to pass through them, without let or hindrance: and that the Mayor and Aldermen have no power or authority to exact any tax whatever on any part of his property, which is not located in the city; and that no such power has been granted to them, either by the provisions of their charter, or by any other Act of the State Legislature.
    That the said Mayor and Aldermen have no right or authority to exact of the relator any further or other sum as the price of a badge for his slave, Thomas, than that paid by residents of the city for badges of the same grade ; and that no power has been granted to discriminate in the regulation of badges between the corporators of the city and other citizens of the State.
    That the relator having purchased a badge for his slave, Thomas, which entitles him to work out on hire, in the city, from 1st January, 1843, to 1st January, 1844, the Mayor and Aldermen have no power to impose a further tax of seven dollars on the said slave. That the slave, Thomas, being a resident on Charleston Neck, is already assessed in a tax, which has been paid to the commissioners, for support of the local government thereof; the tax on the said slave, paid tp the Commissioners of the Poor on Charleston Neck, being twenty-five per cent, on his general tax.
    
      Wherefore the relator prays, that a writ of prohibition do issue against the Mayor and Aldermen, prohibiting and restraining them from collecting from the relator any of the aforesaid taxes and assessments.
    On the 22d October, 1843, a rule was taken out against the Mayor and Aldermen, to shew cause on the 6th November, 1843, why the writ of prohibition should notissue against them, for the causes specified in the suggestion.
    The Mayor and Aldermen of Charleston, by their return, showed for cause why the said prohibition should not be granted : That in, and by, an Act of the General Assembly of the said State, ratified on the thirteenth day of August, one thousand seven hundred and eighty-three, entitled “ An Act to incorporate Charleston,” it was enacted, that the Intendant and Wardens, (subsequently changed, by law, to the title of Mayor and Aldermen,) should be declared, and known,-to be The City Council of Charleston ; and that they, and their successors, should have a common seal, and be invested with full power and authority, from time to time, under their common seal, to make and establish such by-laws, rules, and ordinances, respecting the harbor, streets, lanes, public buildings, work houses, markets, wharves, public houses, carriages, wagons, carts, drays, pumps, buckets, fire engines, the care of the poor, the regulation of seamen, or disorderly people, negroes, and, in general, every other by-law or regulation that should appear to them requisite and necessary, for the security, welfare, and convenience of the said city, or for preserving peace, order, and good government, within the same. And the said City Council were also invested with full power and authority to make such assessments on the inhabitants of Charleston, or those who had taxable property within the same, for the safety, convenience, benefit, and advantage, of the said city, as should appear to them expedient; and were further invested with the powers and authorities which, by law, were vested in the commissioners of streets, at the time of granting the said charter of the city.
    That on the twentieth day of March, in the year of our Lord one thousand eight hundred and forty-three, the City Council passed their certain ordinance, ratified in due form, under their common seal, entitled “ An Ordinance to raise supplies for the City of Charleston for the year eighteen hundred and forty-three,” in which ordinance, amongst other things, they ordained as follows:
    “Every slave within the city, over twelve years of age, shall be subject to a tax of two dollars and fifty cents. Every slave working out, or employed in the city, whose owner resides without the limits of the said city, shall be subject to a tax of seven dollars, over and above the cost of the proper badge.”
    “ Every coach, or other carriage having four wheels, and drawn by two horses, or more ; also, every coach, or other carriage having four wheels, drawn' by two horses, or more, used within the city, by any person who carries on business within the city, though not resident therein, shall be liable to a tax of twenty-five dollars. Every coach, or carriage having four wheels, and drawn only by one horse ; also, every coach, or carriage having four wheels, drawn by one horse, used within the city, by any person who carries on business within the city, though not a resident therein, shall be liable to a tax of fifteen dollars. Every two wheeled chaise, chair, sulkey, or other carriage; also every two wheeled chase, chair, sulkey, or other carriage used within the city, by any person who carries on business within the city, though not resident therein, shall be liable to a tax of two dollars. Every horse and mule; also, every horse and mule, used within the limits of the city, by any person who carries on business within the city, though not resident therein, shall be liable to a tax of five dollars.”
    And also, “ that any person owning, or possessing, any property liable to the payment of a city tax as aforesaid, shall, on or before the fifteenth day of April, in the present year, deliver a just and true return of all such property, with a correct description of lands and tenements, the numbers, situation, and dimensions thereof, to the City Assessor, at his office, and then and there take the following oath,” (fee.
    And further, “ that if any person, being the owner, or having the charge of, or holding any taxable property within the city aforesaid, and who is required by this ordinance to make a return thereof, shall fail, or neglect, to make such return, at the time and in the manner herein prescribed, every such person shall, in every such case, be doubly taxed. And the City Assessor, on the fifteenth day of August next, shall make out, and deliver to the City Treasurer, a list of all persons liable tobe doubly taxed, under this clause; and the City Treasurer shall forthwith .issue an execution against the goods, chattels, and other property, of said persons, to be executed in the same manner as is herein provided for the recovery of other assessments.”
    The said respondents further answering, admit, that by their certain other ordinance, or by-law, ratified the eleventh day of April, eighteen hundred and forty-three, entitled “ An Ordinance to regulate badges for negroes working out on hire,” they, amongst other things, ordained as follows:
    “ That for each ticket, to be obtained from the City Treasurer, for any slave to be employed on hire, the following shall be, respectively, paid by persons residing within the city : (inter alia.)
    
    “For every carter, porter, drayman, or day laborer, four dollars.
    “ And for licenses, or badges, taken out by persons residing without the limits of the city, there shall be paid for each such license, or badge, double the above amounts, respectively.”
    And the respondents further say, that the said relator is a resident citizen of Charleston Neck, without the limits of the said city, and is the owner of, and has used since the first day of January last, and from thence up to the day of the filing of the said suggestion, and still uses, a certain coach, or carriage, having four wheels, with two horses drawing the same, in passing through, by, and along, the several main and cross streets in the said city, at any and all times, as suits his pleasure or convenience. And since the first day of January last, and upon the day of the filing of the said suggestion, has carried on, and still continues to carry on, his business, as a factor and commission merchant, on Hamilton & Co.’s wharf, within the limits of the city; and that the said relator, under the said ordinance of the twentieth March, eighteen hundred and forty-three, was liable to pay to the City Treasurer, for the use of the city, the tax of twenty-five dollars, specified in.the said ordinance, on his said carriage, and the sum of ten dollars on his said horses.
    
      That by the city charter, and the other laws of the State, the City Council have full power and authority to assess, levy, and collect, the said tax of twenty-five dollars on the said carriage, and ten dollars on the two horses, of the relater, used in drawing the said carriage through the streets of the city ; and after the default of the relator in omitting, or refusing to make the return for the same to the City Assessor, as required in the said tax ordinance of the City Council, the City Council had a right to levy, assess, and collect, double the amount of the said tax from the relator.
    And these respondents further answering, say, that they admit, that the City Council have charged the sum of, eight dollars on the said relator, for a badge, or license, taken out from the City Treasurer, for his slave, Thomas, named in the suggestion, for the purpose of hiring him out to be employed as a laborer, to derive wages from business within the city; and also, that these respondents have charged a tax of seven dollars on the said slave, Thomas, as slaves owned by a resident without the limits of the city.
    And these respondents further answering, say, that in addition to the general powers vested in the City Council, by the charter of seventeen hundred and eighty-three, the powers previously vested in the Commissioners of Streets, by the Act of seventeen hundred and sixty-four, were transferred to the City Council; and in the twenty-second section of that Act, it is provided in the following words: “ That it shall not be lawful for any slave to work for hire, as a laborer, or porter, in Charleston, until the owner, or person having the charge of such slave, shall have obtained a license from the said commissioners for so doing;” as will fully appear, amongst other things, on reference being made to the said Act.
    And these respondents further say, that under their charter, and the laws of the State, the City Council have full power and authority to prescribe and regulate the terms and conditions upon which they will permit the introduction of slaves of non-corporators, and non-residents, to be employed, or hired out, on wages, within the limits of the city; and that to accomplish these objects, the City Council are fully authorized, by law, to assess, levy, and collect, a larger tax than on corporators: that under the same powers, they are also authorized to require an higher price for a badge of the slaves of residents beyond the limits of the city, employed by them as laborers for hire, deriving a benefit and profit for their owners, within the city, than from residents and corporators; and that they were fully authorized to charge, assess, and collect, as well the tax.for such slaves, as the price of the badge, or license, aforesaid. Also, that the issuing of a double tax execution for the said tax, is a charge, or additional tax, fairly and legitimately imposed on the said relator, through his omission, or neglect, to make a return of his property liable to the city tax, as required in the said ordinance.
    And the respondents further answering, say, that the said ordinance of the City Conncil, to raise supplies for the city of Charleston, for the year eighteen hundred and forty-three, is fully authorized and sustained by the charter, and by the other Acts of Assembly in relation to the city; that all the proceedings of the City Council against the relator, as set forth in the suggestion, are regular, and supported by law: and they pray to be permitted to proceed to enforce their said taxes, in due course of such measure.
    His Honor, after argument upon the return to the rule, made the following order:
    “ Whether the City Council can lay any additional tax upon the relator, who resides without the city, over and above the general tax laid upon all persons in the situation of the relator, but residing within the city, is the question. The additional tax only is objected to. The powers of the City Council are designated by the city charter of 1783 : (7 Stat. 99.) and, among those relied upon, is the following, upon which, in my opinion, the case turns, and upon which I shall give judgment, at least for the purpose of carrying the case to the Court of Appeals; to-wit, die., “to make such assessments on the inhabitants of Charleston, or those who may hold taxable property within the same,” <fec., &c., “ as should appear to them expedient.”
    “Does such enactment authorize the Council to lay any additional tax, by reason of the relator residing -without, but doing business, and holding taxable property, within the city1? Such a power might assuredly be conferred by the Legislature: it would be in the nature of a common double tax upon absentees.
    “ But does the charter confer such power ? This depends upon the construction of the terms, “ or those who hold taxable property within the same.”
    Do they import, that such non-residents may be taxed in a sum additional to the general tax on their property within the city, in common with all its inhabitants, holding the like property'? Such a power would admit of great extension, and application to persons doing business, and holding property, within the city; and does not appear to be clearly conferred, or necessarily implied, by the terms or objects of the incorporation.
    The writ of prohibition prayed for is, therefore, ordered, to the extent of the additional tax required of the relator.
    The Mayor and Aldermen appealed from the foregoing order, and moved that the same may be reversed, on the following grounds:
    1. That his Honor, the presiding judge, was mistaken, in supposing that the City Council have laid an additional tax on the relator, over and above the general tax upon all persons in the situation of the relator, but residing within the city ; inasmuch as the tax assessed upon the carriage and horses of the relator, under the city ordinance of 1843, is at the same rate as on the vehicles and horses of residents of the city.
    2. That the City Council, under the charter of 1783, are invested with full power to levy the tax upon the carriage and horses, used within the city by the relator, who carried on business within the city, the said carriage being taxable property within the limits of the cicy.
    3. That the City Council, under the charter, have full power to tax the relator for his slaves working out, and employed within the limits of the city, the sum of seven dollars, as levied in the tax ordinance of 1843; and that there is nothing in the charter, or in the principles of the law in relation to municipal corporations, to render the exercise of this power dependent upon the levy of a tax of equal amount on the slaves of corporators, and residents within the city.
    
      4. That the regulation of slaves coming within the city limits, is, under the grant of corporate powers, vested in the City Council; and that the additional tax on slaves, within the city, held by persons residing without the city, is fully authorized, whether it be regarded as a by-law to prevent the introduction of too large a number of slaves within the city, or as an exercise of the power to lay assessments on the inhabitants of Charleston, and on persons holding taxable property within the city.
    5. That the double price of badges on slaves of nonresidents, hired out within the city, is, for the reasons aforesaid, fully authorized by the charter of the city, and the law of the land.
    6. That under the law of the land, and the charter of the city, the taxes on carriages, horses, and slaves, and also the double price for badges of slaves, of non-residents, were fully authorized and justified.
    7. That the order for the writ of prohibition is contrary to law, and the motion for the writ should have been dismissed with costs.
    Eckhard, City Attorney, and Bailey, for the Mayor and Aldermen.
    
      J\ S. Rhett and Petigru, for the relator.
   Curia, per

Richardson, J.

The relator, James Adger, resides on Charleston Neck, which is without the city of Charleston. But he carries on the profession and busines of a Cotton Factor and Commission Merchant, within the city. It may be observed, that this is a general profession, in no way dependent'on the municipal ordinances of the city of Charleston. The relator complains, that his carriage, which he uses for his personal convenience, both within and without the city, has been taxed twenty-five dollars, and his carriage horses, at five dollars each. These are the taxes laid upon such carriages and horses, when owned and used by the inhabitants of the city.

He complains, further, that his carriage driver, Pompey, is taxed at seven dollars, and his slave, Thomas, who works in the city, in virtue of a city badge, also at seven dollars; which tax, on Pompey and Thomas, is four dollars more than the general tax laid on similar property of the inhabitants of the city, ($2 50.)

The further complaint, that the relator has been obliged to pay for Thomas’s badge, double the price required of the inhabitants, we need not notice. Because such double price did not constitute an assesment upon his property, but was voluntarily paid by him. That complaint does, therefore, afford no ground for relief, at least by the writ of prohibition.

The questions are, then, confined to the powers of the Mayor and Aldermen, to lay any tax upon the carriage, horses, and driver of the relator, residing out of the corporate limits of Charleston, or to lay any tax upon the slave, Thomas, although working in the- city, under a badge, purchased of the city authorities, and required by their municipal and police regulations; i. e. Does such voluntary placing Thomas under a city badge, render him “taxable property” within the city: and if so, to what extent of taxes %

This general question is first to be considered. Can the Mayor and Aldermen lay a tax upon the carriage, horses or driver of a non-resident of the city, because he uses them while carrying on his business in the city; or carrying him to and from his place and office of business, dsc? There is no complaint of the tax upon his income, as Factor and Commission Merchant. Such a tax is justified by the Act of 1836, 7 Stat. p. 147. The complaint is of that, which may be called the derivative tax, as being connected with that assessed upon his business done in the city. The general power conferred on the city authorities, to assess property by taxes, is given by the Act of 1783, 6 Stat. p. 97, to incorporate Charleston, in these words, &c. “And the said city council shall also be vested with full power and authority to make such assessment on the inhabitants of Charleston, or those who hold taxable property within the same, for the safety, convenience, benefit and advantage of the said city, as shall appear to them expedient.” 7 Stat. 98.

The questions upon this enactment are, what are the chartered legislative powers of the city council, now Mayor and Aldermen, first, in laying taxes on the “taxable property” within the limits of Charleston, but belonging to persons residing out of the city1? Secondly, what is their right of taxing such non-residents, who yet carry on a general business, trade or profession within the city 1

This second question arises more properly under the recent Act of 1836, as will be seen ; but it was made under both Acts, i. e. the charter of 1783, and the Act of 1836. And, of course, both Acts are for judicial construction.

We consider the charter first. The leading rule and principle of law, for the construction of such Acts of incorporation, is well established. Corporations are creatures of their charter. 1 Bac. 3; 2 Kent, 240 ; Kyd & Black, &c. &c. The powers vested in a corporate body or chartered association of men, are for a public purpose, and consist, not in a restriction of powers before vested, but in a delegation of neic and particular powers, which cannot be extended beyond the letter of the Act of incorporation, unless the implication of some power beyond the letter be unavoidable, and necessarily follow the powers expressly given. And then the obvious aim and sense of the law, cannot but be the very law; and we have the true construction in allowing such implied power.

In the instance of the charter of Charleston in 1783, the power to assess the inhabitants is general, and is placed, by the letter of the charter, at discretion; so it be done “ for the safety, benefit, convenience, and advantage of the city.” But the tax on those who hold taxable property within the same, is as evidently confined to a tax restricted to the assessment on such “táxable property.” So far, I can perceive no room for mere construction. The terms are plain. The tax is to be paid by the owner, of course. But to be assessed, i. e. measured, or rateably apportioned to his taxable property “within the city.” And the rule already laid down, forbids the extension of any tax by the construction of the charter, to be assessed upon his head, or poll, or upon his taxable property held elsewhere. Because the power is confined by the charter to taxable property ■‘ within the city.” And we find no premises for the induction of any derivative or other tax upon such non-residents of the city. This conclution appears mani^ fest, then, both from reason and from the letter of the city charter of 1783. Bat it is by the Act of 1836, 7 Stat. 147, that the city council, now properly called the Mayor and Aldermen, is supposed, with more confidence, to be vested with the power to tax the carriage, horses, and slaves of the relator, because he carries on his business within the city. This recent Act i£ as follows, (fee. “The city council, (fee. shall be,” (fee. “vested with power, (fee. to levy and collect such assessments and taxes, on the income and profits of persons resident without the limits of the city of Charleston, derived from the pursuit of any faculty, profession or occupation conducted within the limits of the said city, as the said city council shall deem expedient, for the safety, convenience, benefit and advantage of the said city.” “Provided, that no tax imposed upon the said persons, so resident without the said city, shall be at a greater rate than that laid upon persons resident within the same.”

The delegation of the taxing power here given, is also manifestly limited. The income and profit of the faculty, profession or occupation, so carried on within the city, are to be taxed. The income is taxed, not the capital or means of his profession. Now, then, are the relator’s carriage, horses and driver, or any other means by which he is personally served and helped in carrying on his business and profession, in any way connected with the idea of income and profits'? If so, then outlay, expenditure of income, or money spent, constitute income and profits.

This cannot be reconciled to the meaning of income, any more than the rent the relator necessarily pays for his office or store-house, or the salary to his clerk, or for any other means essential or incident to his business. All these are the expenditures of his profession, and constitute the opposites and antagonists of income and profits. Income and profits are the nett gains or revenue, after all deductions for necessary expenditures. But there is no necessity for pressing the argument to extremes. It is enough to say, that the city council, under this last Act, cannot first tax the income of the employment, and then tax the capital or its details, by taxing the instruments, means and helps by which the income has been realized and rendered a taxable thing. In a word, if I may so express the meaning of a tax upon income and profits, the tax is upon the fruit, not upon the roots, trunk or branches of the tree that bears the fruit. It might have been allowed upon each, but the tax is allowed on the fruit alone. Under those two Acts, therefore, the taxing power of the Mayor and Aldermen is confined, 1st. To the inhabitants of "the city at discretion. 2d. To the taxable property within the city, of nonresidents; and 3d. To the income of nonresidents, from professions carried on within the city. Under, therefore, either the charter of 1783, or the Act of 1836, the taxes laid on the relator’s carriage, horses and slave, Pompey, are clearly beyond the taxing power given to the city council, now called the Mayor and Aldermen. And there is no other Act giving them power to assess taxes, that can relate to the question before the court. The tax on sales at auction, and some others, might be noted, but none have been on the present questions.

We come now to the tax on the slave, Thomas, who works in the city, under a city badge, voluntarily purchased of the city authorities by Mr. Adger, in order to bring him within the police regulations of slaves within the city. At the first blush, Thomas would appear, like Pompey, to follow and to be located at the residence and domicil of his owner; and, therefore, not within the meaning of taxable property “within the city.”

It is true, that such is the general rule for goods and chattels, and all personal property; they are appendant and appurtenant to the owner’s person, and their legal residence and home, if I may so express a principle of law, is at his settled residence or domicil. Just as a husband, who, however he wander abroad, still has his legal domicil, as the general rule, at the place where he has settled his wife and family. See 4th and 9th chap, of Story’s Com. where the cases are collected from many adjudications and various nations; and all agree in this principle of the domicil of the master or owner drawing to one spot, as for a legal residence, and to the laws of that place, all his moveable property.

This principle is, in fact, at the very foundation of my reasoning upon the place where the carriage, horses and driver of Mr. Adger belonged; and why they Were not taxable by the city authorities, i. e. because', wherever they might be used by the relator, for himself, his family or friends, they were still, on legal principles, attached to his person and located at his domicil. But as a husband might fix his domicil apart from his wife and family, by his own act and will, so might the relator have placed his carriage, horses and driver, as a licensed hackney coach within the city. And in that case, I apprehend, they might be taxed like other property of the like kind within the city, belonging to a nonresident, so it be not more than the tax laid upon the hackney coaches of the actual inhabitants of the city. But there Would be no discrimination by an increased tax on the nonresident. Because to assess taxes, is to lay on equal burthens as the price of protection. I consider, therefore, the proviso of the Act of 1836, to be the recognition of a general rule in taxing, and never to be dispensed with, by, at least, any inferior body or delegated authority; unless under their express chartered powers to tax in that manner. The principles of justice sufficiently point out the necessity of equal taxation. But for authority* see Art. 1. sec. 1. Con. of U. S. and 2 Kent, 268 * and the principles of Political Economy, by Adam Smith. To discriminate, then, by an increased tax upon a nonresident citizen, who happened to hold taxable property, or to carry on a general profession, within the city, or to tax him at all, except upon such particular property or profession, would amount to the assumption of a new, substantive and great power of assessing taxes, and so capable of a dangerous abuse, if allowed, as to justify the stricture made by the counsel for the relator — that it would enable the city to pay its debts by the contributions of nonresidents, in the form of taxes. Such persons are absentees only, from their own domicils or stations. But it is enough to say, that it would be an induction of power by mere construction, the premises of which are not to be found in the Act of 1836, or in the charter of the city, or in their spirit or purpose. On the contrary, and it will furnish an instance of a power fairly inferrable from the express powers, to tax the carriage, if it were converted into a licensed hackney coach plying for passengers within the city, seems a just, if not an irresistible inference of reason, from the power to tax property within the city, and the scope, object and purpose, of both the charter and the Act of 1836. Because this is an employment subject to the local police, and may, or may not, be licensed in the city. And every person may, if he dioses, place his carriage under such a police; and this voluntary submission of it to such local government, may well change its otherwise implied connection with his domicil, and place the moveable personal property within the city by a new connection. The rule of the domicil does not cross the will of the owner, but is supposed to follow. And he may give his personal property a new locality, which is often done. For instance, by annexing them to houses, mills, <fcc. usually called fixtures, &a. by changing his domicil, <fcc, and assuredly he may do the same by contract, express or implied, and for a consideration, as in the case supposed of the hackney coach, voluntarily placed under the city license. I admit that the distinction here taken, favors the taxing power of the city, by extending its application to the subjects and persons placed under its own municipal government, wherever they may be located. In fact, this is done by construction merely. But such a constructive consequence appears to follow irresistibly, and if it were otherwise, great inconvenience, if not frauds upon the municipality, might be practiced, in many cases embraced by this distinction in favor of the taxing power of the city. In fact, the very next case for our decision, turns upon it; and on that account, as well as for the present case, we would have the grounds of the distinction made plain. We would be guarded against the constructive powers of corporations, and especially of Legislative and taxing corporations. But their chartered authority is of their own legal right, never to be assailed by a government made for the protection of the vested and legal rights of men. Our courts would, therefore, be strict against their assumptions, yet considerate and just to their proper authority. But unless the premises from which the construction is made, be found in the Act of incorporation, the rule of construction would become the instrument of partiality or prejudice; or our own habits of thinking or acting irrespective of the written charter, and we might there interpolate or arrest vested powers. The right understanding, therefore, of the only proper foundation of the rule of construction, is essential to its just application. And as the present decision has an immediate bearing upon many similar cases, I repeat briefly the premises of our construction.

First, the Mayor and Aldermen have express authority to assess all property within the city, whether of inhabitants, or of nonresidents. Secondly, they have also the express powers of the government and police regulations of the city. These powers are within the charter for the incorporation of Charleston. Thirdly, the relator has, in fact, placed his slave, Thomas, expressly under the police regulations of the city, by purchasing a badge to authorize him to ply for work within the city regulations.

From these premises, the constructive induction is made, that Thomas has been voluntarily made “taxable property within the city,” in the proper sense of those terms of the charter of 1783, notwithstanding the rule of the domicil and its general application to personal property. Little need be said upon the argument, that the discriminating and increased tax on the slaves of nonresidents might be placed under the regulating or police powers of the Mayor and Aldermen, and may be to guard against too great an influx of slaves. And evidently, the classing of negro laborers, by badges, belongs to that branch of power, and might be used for such a purpose. But this cannot change the principles or power of taxation. Taxes are for revenue ; and they must be equal and impartial between the city inhabitants and the nonresident citizens of the State, according to property within the city.

My notion, therefore, for an increased power of taxing nonresidents, or of taxing them double, deduced from the police and regulating franchise of the Mayor and Aider-men, or from the supposed absenteeism of nonresidents, is a forced induction, that has too little ground found in their chartered legislative rights, to be tenable. This principle was strongly, but no more than fairly, expressed, when one of the counsel said, “you cannot tax a man for not being a corporator.” As little need be said upon usages. The charter of 1783 is too recent for usage to indicate a chartered power by long acquiescence. Immemorial usage is proof of a former chartered power. In fact, learning and cases on this head, were introduced to shew, rather what might be, than what actually existed in Charleston. Another manner of argument was urged from the legislative power to repeal the city laws. But this power relates chiefly to unwise or inconvenient ordinances, and does not take away the citizen’s right to resist ordinances unauthorized by the city charter. This properly belongs to the judicial department, upon complaint being made, as in the present instance.-

To come, then, to a conclusion, none of these latter views or arguments, can alter the construction of the taxing power of the Mayor and Aldermen, as first considered by the court and applied to the charter of 1783, and the. Act of 1836. The decision of the Circuit Court is, therefore, affirmed.

The writ of prohibition is to arrest the tax on the relator’s carriage, horses and carriage driver, and also the excess of the tax laid upon Thomas, over and above the general tax laid upon the slaves of the inhabitants of the city of Charleston, which excess is $4 50.

O’Neall, Butler and Wardlaw, JJ, concurred.  