
    
      The State ex rel. Ed. Sebring and Wm. Birnie vs. The City Council of Charleston.
    
    The City Council of Charleston have not the power to impose a tax on dividends received by stockholders, inhabitants of the City of Charleston, on stock of The State Bank and The Bank of South Carolina, — said Banks, together with all other Banks of this State, being, by their charters, exempt from the payment of all taxes.
    
      Before Frost, J. at Charleston, Fall Term, 1849.
    This was an application for a writ of prohibition. His Honor pronounced judgment as follows:
    Frost, J. The City Council of Charleston, by “an ordinance to raise supplies for the year 1849,” imposed a tax of five per cent, on every hundred dollars of dividends received on bank or other stocks, with certain exceptions, which do not include the State Bank and the Bank of South Carolina.
    The relators applied for a prohibition against the enforcement of the tax, and submitted the case, on a brief written argument.
    Edward Sebring is a stockholder in the State Bank, and resists his liability to pay the tax, under an alleged grant of exemption by the several Acts of the Legislature incorporating the Bank and extending the term of its incorporation. By the 10th section of the Act of 1802, incorporating the Bank, it is declared that “the said corporation, and the stock thereof, shall be relieved from the payment of all taxes during the time for which it is hereby incorporated.” By the Act of 1822, the charter of the Bank was renewed, “ with all the privileges, powers, immunities and benefits,” enjoyed under the original charter: and, by the 3d section, it is enacted, that “ for the charter renewed,” the Bank should “ pay into the treasury of the Lower Division a bonus of twenty thousand dollars.” The charter was again renewed, by an Act passed in 1833, with all its former “ rights, privileges,” &c., on condition that the corporation should pay “ twenty thousand dollars as a bonus.”
    William Birnie, the other relator, is a stockholder in the Bank of South Carolina, and claims a like grant of exemption, under the Acts incorporating that Bank and extending the term of its incorporation. The Act of incorporation requires the Bank to pay into the State treasury fifteen thousand dollars, “ and in consideration of said payment, to be relieved from all taxes during the time for which it is hereby incorporated.” By the Act of 1822, the charter was renewed “ with all the privileges, powers, immunities and benefits,” enjoyed under the original charter, and the Bank was required to pay .into the treasury “ a bonus of twenty thousand dollars for the charter renewed.” The charter was again renewed in 1832, in terms similar and equivalent to those used in the Act of 1822.
    By the Act of 1783, incorporating the City of Charleston, “the City Council is vested with full power and authority to make such assessments on the inhabitants of Charleston, or those who hold taxable property within the same, for the convenience, safety, benefit and advantage of the said city, as shall appear to them expedient.”
    The institution of a bank creates three interests, the subjects of taxation — the bank, in its corporate capacity, or the franchise of banking; the capital of the individual stockholders invested in the bank; and the income, or profit, which the stockholders may derive from funds so invested.
    In Bulow & Potter vs. The City Council of Charleston, (1 N. & McC. 527,) it was held, that though the Bank of the United States could not be taxed, yet that the stock, owned by individuals, was a legitimate subject of taxation. The same distinction was admitted by Chief Justice Marshall, in McCulloch vs. The 
      
      State of Maryland, (4 Wheat. 436,) and is affirmed in Berney vs. The Tax Collector, (2 Bail. 654). In the case last cited, Judge O’Neall maintains that the dividends or profits of government or bank stock, when paid to the stockholder, must be distinguished from the stock ; so that the former may be taxed, though the latter may be exempt.
    In this case, the tax is laid on the dividends or income which the relators may receive on their shares in the capital of the banks respectively.
    It may be admitted that the Legislature possesses the power to declare any species of property to be exempt from taxation, and it may also be admitted that when these banks, by the Acts incorporating them, or the stock, are declared to be relieved from all taxes, other taxes were intended than those to be imposed for the use of the - State, directly by the Legislature, or indirectly by the agency of public functionaries to whom the power of the Legislature may, for specific objects, be delegated. Yet only the Bank of South Carolina, and only the corporation and stock of the State Bank are relieved. The dividends or income of the stockholders are not included in this exemption.
    The Acts incorporating these banks are private Acts, and should be construed with a saving of the rights and interests of all other persons. (Dwar. on Stat. 7. Law Library.) The terms used should be very direct and explicit, which declare the intention of the Legislature to divest the power of taxation which had been granted to the City Council of Charleston.
    The motion for a prohibition is refused.
    The relators appealed.
    The case was first argued, February, 1850, in the Law Court of Appeals, and was ordered to this Court, where it now came on to be heard.
    
      H. A. DeSaussure, for appellants,
    referred to the sections in the different bank charters, exempting the banks of this State from taxation, and cited Weston vs. The City Council of Charleston, Harp. 340; S. C. 2 Peters, 449 ; Fletcher vs. Peck, 6 Cra. 88 ; State Bank vs. City Council, 3 Rich. 342.
    
      Porter, city attorney, contra,
    cited 8 Stat. 101; 3 Rich. 342; State vs. Allen, 2 McC. 55.
   The opinion of the. Court was delivered by

Whitner, J.

These appellants resist the collection of a tax imposed by an ordinance of the City Council of Charleston, ratified 24th April, 1849. They are owners of stock in the State Bank and the Bank of South Carolina, and Council having ordained, inter alia, “ that a tax be raised and paid into the treasury of the city of 5 per cent, on every hundred dollars of dividends received,” &c., on such bank stocks, a suggestion was filed for a prohibition to restrain the City Council from levying this assessment. The prohibition was refused by the Judge on circuit, and, on appeal, the application is here renewed.

The grounds, as well as a detailed statement of the facts, appear in the suggestion of the relators, the answer of the City Council and the report of the Judge.

The question raised involves the power of the City Council of Charleston to tax dividends received on stocks in the incorporated banks of the State at all, as it will be found the objection applies to all such stocks. The judgment, therefore, aifects extensive interests, public and private, and the inquiry demands, consequently, grave consideration.

Power on the one hand, and exemption on the other, are the points this Court have especially considered. The policy involved in the exercise of the one, or the supposed inequality of the other, belong to other tribunals. To declare the law, is known to be the proper province of this Court; and the purpose will be to confine it within its proper sphere. These questions sometimes indicate the mind of the law maker, and hence may become subject of inquiry. By the Act To incorporate Charleston,” of 1783, the City Council was invested with “ full power and authority to make such assessments on the inhabitants of Charleston and those who hold taxable •property within the same, as shall appear to them expedient.”

It has been long held in this State, that the City Council is thus “ invested with the same powers to impose taxes on legitimate subjects of taxation as the State itself possesses.” (Bulow & Potter vs. The City Council of Charleston, 1 N. & McC. 527).

Without enlarging on the inquiry as to proper subjects of taxation by the supreme authority, it is sufficient for present purposes that no doubt has been expressed, or is entertained, that bank stock and the dividends thereon, fall within this category, as a general proposition, and upon those, therefore, who object, the burthen devolves of making out the ground of exception.

On this branch of the inquiry, looking to the Acts creating these institutions, it is found that those persons who embarked their capital in these enterprises were required to pay a bonus into the State treasury. As a part of the history of those days, it is known that these sums were severally adjusted with much nicety of calculation, having reference to the amounts to be invested and the several periods allotted to their corporate existence. In every instance, this sum was required in advance, and was in consideration of certain powers and privileges conferred and secured. The terms used are slightly variant, but the effect is universally regarded the same. In the argument, it is said this payment was in consideration of the franchise, and in some of the adjudged cases, I find judicial dicta that it is to be regarded as the consideration of the franchise and for exemption from taxation. If is at least a prompt payment, and so much, for the time being, withdrawn from the capital stock, though it may be, in the course of banking, refunded from the profits. The implication is plain in either view. Nevertheless, it is worthy of remark, that in reference to “ The State Bank,” the charter provides that on this payment the said corporation and the stock thereof shall be relieved from the payment of all taxes during the time for which it is incorporated and in reference to “ The Bank of South Carolina,” in like manner it is provided, “ that in consideration of said payment, to be relieved from the payment of all taxes during the time for which it is incorporated.”

Hence these appellants claim to be exempt from the operation of the city ordinance in question, founding on this contract their denial that either the stock owned by them or the dividends received there'on, are to be regarded as taxable property.

Whilst to the city authorities is conceded the same power to tax legitimate subjects that the State itself possesses, it is equally clear that nothing more has been or could be conferred. It is not to be denied, that wherein the State has tied its own hands, it must operate equally to fetter and restrain the City Council. Taxable property, by all just interpretation, 'is surely that property which is liable to be taxed by the State. In reference to these banks, stocks and their incidents thus authorized and set apart, what thereof may be regarded as taxable ?'

It has been settled by an adjudged case, (State Bank vs. City Council of Charleston, 3 Rich. 342,) that the real property of these banks, though within the corporate limits of the city, is exempt from taxation by the City Council. The grounds on which this exemption rests are worthy of examination. For, however clear this may be regarded now, there was a day when it was not so considered, as appears by efforts once made. The terms used are, The bank,” the said corporation,” “ shall be relieved.” Why was this held to extend to .real property owned by the banks ? Because, say the Court, per O’Neall, X, “ to be intended for any thing else than a mockery, an exemption of a bank from taxation must extend to something else than the bank. It is a body corporate, but stripped of its funds and property, it would be difficult to find the corpus.” The conclusion seems palpable, that if subjected to taxation, without property it could not be levied, so if it is authorized to hold property and exempt, such exemption must relieve the property: and the suggestion is made, evidently founded in good sense, that “ an exemption of a citizen, without qualification, from all taxes, must necessarily exempt both his person and property from all taxation.”

Again, these terms might well be regarded as extended to the relief of the original stock by the same course of argument. Although the corporation be an artificial being,” yet it is also a collection of individuals united in one body, vested with a capacity of acting in several respects as an individual, according to the design of its institution or the powers conferred. Such funds are indispensible to the very being of these corporations. Not yet having vitality until contributed, and expiring on the mo ment and by the act of their withdrawal. In one of these charters, “ the stock,” eo nomine, is “ relieved from the payment of all taxes,” and, as has been already remarked, though the terms used are somewhat different, it has been conceded here, and so held elsewhere, that the design was, and the effect has been, to place each on the same footing. The real and personal property held and owned as authorized by the charter, being exempt from all taxation, it remains to be seen whether, by all just interpretation, such exemption does not include the rents and profits flowing therefrom. Dividends, it is urged, are the private property of the stockholder, and when received by him, become the separate property of the citizen. Hence, as any other property, are fairly taxable. This view, I admit, is plausible, but in reference to the case in hand, I think, is fallacious.

Looking to the true principle involved, and the manifest intention of these contracting parties, the government on the one part and a body of citizens on the other, the creation and intervention of an artificial being or the employment of capital merely in banking operations, cannot lead to such strange conclusions. Relief of the bank from all taxation, includes property of the bank. Relief of the citizen from all taxation includes the property owned by him, each as incidents. If this be so of persons, whether artificial or natural, the principle must equally apply to things. If the citizen be relieved from the payment of taxes by contract, in consideration of a bonus paid, on a house and lot, by no fair construction could the rent he might derive be the subject of taxation, otherwise the benefit of his exemption would depend alone on his occupation of the premises.

If the citizen, intending to invest his private capital in bonds at interest, should, on the payment of a bonus, thereby secure relief from taxation thereon, as well as the right so to employ his capital, by no just interpretation of his contract could he be deprived of the profits of his investment, by a tax on the interest accruing from year to year.

Profits on stock remaining in the bank are not taxable, though segregated they may be from other funds. In what lies the difference, when transferred to the individual stockholder, than when held by the stockholders jointly, is not easily perceived. The stock itself, though essential to the corporation, and subject to certain liabilities, is divided into shares, according to the amount contributed by each individual, each in fact being owner pro tanto of the original stock. The property which each member possesses in it, in a qualified sense, is distinct and independent of the others, though bound together and pledged, as remarked, and this stock, thus owned and held, is exonerated from taxation, and the profits, whilst in bank, likewise relieved, though as they pass from its coffers and whilst yet unchanged in the hands of one who composes a part of the body politic, at once, it is contended, incur a liability from which they were previously free. When the distinctive character of the fund is changed, by a different investment, in lands, slaves, &c., then the reason becomes plain and the right may well be conceded to exist.

It must be borne in mind that the stockholders paid a tax in advance on the capital stock, for the privilege of making profits in a particular course of business. By the scheme, the profits, therefore, have been taxed in . anticipation, virtually, and if, instead of levying the tax in the form of a bonus, a round sum and in advance for a term of years, the charter had provided a payment of 1 or 2 per cent, per annum, for 14 years, on the capital stock invested, declaring that in consideration thereof the said stock should be relieved from all taxes, a further assessment on annually accruing profits would hardly have been thought of.

The right claimed acknowledges no limit. The will of the corporation, for the time being, fixes the extent, these banks, with many others, being located in the city. Dividends here declared, set apart and receivable, hence might be regarded subject to taxation to any amount, according to discretion. Not only so, but the citizen of Greenville, on such a construction as that contended for, being a stockholder in these banks, instead of an exemption from all further taxation on his investment, in consideration of his advanced payment, might find these profits subjected to a further tax by the State, the tax assessed by the city where received, and a still further tax by the town of Greenville, where he proposed to disburse the pittance that might remain.

Stocks derive their value from the dividends they yield, and if such be the shield they have secured to them from the common burthen of taxation, by a previous contract, on a bonus paid in advance, as a class the owners of stock are without protection or guarantee in their contract.

The construction evidently given to this contract by one of the contracting parties, would be of some avail, at least in a doubtful question.

The Legislature, from the organization of these banks, including all incorporated by the State, on the payment of the bonus required, as well on the original charter as upon each renewal, has carefully abstained from all other taxation, as well of dividends received by the stockholders as property held by the Bank. Capital otherwise invested, and monies at interest, secured by bonds, notes, &c., accruing interest on money loaned, time and again have been resorted to, but always with an exception of banks incorporated by the State, the stock thereof and dividends thereon. So, too, in 1830, when a tax was imposed “ of one per .cent, upon all dividends arising from stock owned by any citizen of this State in all banks not chartered by this State,” the exemption of dividends arising from stocks in our own banks, could only be vindicated on the ground of having already paid a tax in the form of a bonus. In the case of Berney vs. Tax Collector, (2 Bail. 678,) Harper, J., in the opinion delivered, puts it on the footing of a contract, and that it would be a breach of good faith to subject them to further burthens.

Cases have been referred to as authorities in point, and whilst it is admitted, that dicta of Judges may be extracted from some of the cases, yet it will be found, I think, that the cases themselves are distinguishable from this. I allude to the cases of Bulow & Potter vs. The City Council of Charleston, (1 N. & McC. 527); McCulloch vs. The State of Maryland, (4 Wheat. 436): Berney vs. Tax Collector, (2 Bail. 654); and Weston vs. City Council of Charleston, (in Harp. Rep. 340, and again 2 Pet. 449.

The questions here severally raised lead to an investigation of the rights of separate jurisdictions, claimed to be independent of each other. The taxing or contracting power of the one, in no way, it was contended, excluded the authority of the other. Here the right is directly derivative and wholly subordinate.

In the case of Bulow & Potter, certain distinctions are taken, as between the Bank of the United States and the stockholder, between thé interest of the United States and the individual stockholders, and that, in consequence, although under the peculiar structure of our government and this institution, it might be that the bank .was not the subject of State taxation, yet that the citizen, or the stock rather, in the hands of the citizen, might be. Now here, the stock itself has been shewn to be exempt, and to the extent that the foregoing case has shewn that the commingling of private capital with banking operations does not necessarily and wholly destroy its distinctive character, so far at least it vindicates the view I have sought to maintain. In the case of McCulloch, the distinguished Chief Justice Marshall is considered as having conceded at once a distinction and a right to tax bearing directly on the point here controverted. In the opinion delivered, asserting the restraint to tax the bank, he intimates evidently that the principle on which this rests, may not extend to a tax paid by the real property of the United States Bank, in common with other real property within the State, nor to a tax imposed on the interest which the citizen of the State may hold in the institution, in common with other property of the same description throughout the State. Again, it will be seen, however, that subsequently, in the case of Weston, it was held, that a tax, imposed by the City Council of Charleston, on the 6 and 7 per cent, stock of the United States, owned and possessed within the limits of the city, was not authorized. Whether these distinctions were soundly taken, was questioned by our own eminent jurist, the late Judge Harper, with his accustomed modesty, in Berney vs. The Tax Collector, nor was the ground of difference perceived by the clear mind of Johnson, J., as expressed in the same case ; still I must be permitted to reiterate, that here, where there is and can be no conflict of jurisdiction, the real property of these banks and the interest, that is, the stock the citizen holds in them, are not taxable in this State, by contract, founded on valuable consideration. The right of the State to exempt within its limits, is not drawn in question, and the binding obligation on all subordinate authorities is incon-testible.

The judgment of the Court below is reversed; and it is ordered that a writ of prohibition issue to restrain the City Council of Charleston from the collection of the assessment in question.

O’Neall, Evans, Wardlaw and Withers, JJ. and Dun-kin, Dargan and Wardlaw, CC. concurred.

Frost, J.

dissenting. The unanimity of the Court in reversing the judgment below, makes it necessary to vindicate the circuit opinion, by enlarging the grounds on which it is rested in the report. The case on the circuit was decided in submission to the authority of the cases cited. These decisions were the law, until they have been reversed by the judgment of the Court in this case. On their authority it was affirmed, that a bank presents three subjects for taxation: the bank in its corporate capacity, or the franchise to bank : the capital of the individual stockholders invested in the bank : and the dividends or income which the stockholders may derive from the funds so invested.

In McCulloch vs. The State of Maryland, (4 Wheat. 436,) the State of Maryland had imposed a tax on the branch of the United States Bank, in that State. It was decided that the bank, that is, the franchise to bank, was exempted, by the Constitution of the United States, from liability to taxation by the States. But Chief Justice Marshall, who delivered the opinion of the Court, says, “ this opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State.” This distinction is recognized by Judge Harper, in the case of Berney vs. The City Council of Charleston. In Bulow & Potter vs. The City Council of Charleston, (1 N. & McC. 528,) the City Council had imposed a tax on United States Bank stock: and the question was, whether the stock was not protected from taxation, under the constitutional power of Congress to establish the bank. In the judgment of the Court, delivered by Johnson, J., he says, “ it will not be denied that the exercise of the right of taxation over the corporation, as a bank, would be incompatible with the constitutional power of Congress to establish a National Bank.” But it is affirmed, that “ it does not therefore follow, because the bank itself is exempted from taxation, that the interest of an individual stockholder should also be exempted.” In the case of the City Council of Charleston ads. Weston, (Harp. 343,) Judge Richardson, delivering the opinion of the Court, says, “ the distinction is manifest between a tax on the institution itself (the United States Bank) and a tax on the interest of an individual stockholder. The bank itself cannot be taxed: but to tax the portion of the stock which belongs to an individual is not to tax the institution.”

The Bank of the United States was constituted in the same manner as the “State” and “South Carolina” banks. The charter of each conferred the franchise to bank. The capital of each was, in the same manner, contributed by individuals, who were stockholders in proportion to the amounts they contributed. The distinction between the Bank of the United States, as a corporation, and the stock or interest of individuals in its capital as subjects of taxation, was not dependent on any thing in the constitution of that bank different from other banks : nor can the liability to taxation of the interest or stock of individuals in that bank, while the bank itself was exempted, be attributed to the circumstance that the bank itself was exempted under the Constitution of the United States.

In the cases cited, it was held, that the Act of Congress, chartering the bank, was constitutional and obligatory on the States. The question was, what exemption might be claimed under the Act ? It was admitted, that the bank itself was exempted : but it was adjudged that while the bank was exempted, that did not exempt the interest or stock held by individuals in its capital. If the stock of individuals in the bank was not exempted, it is manifest that the dividends or income of the stockholders could not be. This case of Sebring vs. The City Council, is entirely ’ analagous to the cases cited. The Acts of the Legislature, incorporating the “State ” and “South Carolina” banks, are obligatory on the City Council, as the Act of Congress, chartering the Bank of the United States, was obligatory on the States.. The exemption which the Bank of the United States might claim under its charter, the States were bound to grant. The exemption which the State and South Carolina banks may claim under their charters, the City Council is bound to grant. By the charter of the South Carolina bank, the bank ” is relieved from the payment of all taxes. If the exemption of the corporation, or Bank of the United States did not exempt the interest of its stockholders in the capital from taxation, neither can the exemption of the Bank of South Carolina exempt its stockholders. Between the cases cited and the present case, no possible distinction can be suggested, except that the Bank of the United States derived its privilege from an Act of Congress and claimed it against the State : and the Bank of South Carolina derives its privilege from an Act of the Legislature and claims it against the City Council of Charleston.

The case of the State Bank is somewhat different. By its charter, “ the said corporation and the stock thereof is relieved from the payment of all taxes.” In reference to this case, and also in submission to the adjudged cases, cited in the report, it was held by the circuit Judge, that the dividends or income of the stockholders in a bank, presented a third subject of taxation, distinguishable from the bank itself.” and from the interest or slock of individuals in. its capital.

This was affirmed on the authority of Berney vs. The City Council of Charleston, (2 Bail. 654), This case was argued with great learning and ability and by eminent counsel. It was considered with the attention due to a case of great moment. The three Judges who then composed the Court of Appeals, delivered their opinions severally. It brought into question the constitutionality of a tax imposed by the State on the dividends of the United States Bank stock, owned by the citizens of the State. The tax was unanimously adjudged to be constitutional.

Judge Harper says, “with respect to authority, it might be enough to say, that in the cases relied on, (McCulloch’s, and The City Council vs. Weston,) the case now before us is expressly excepted by the opinion of the Courtand he cites the passage from Judge Marshall’s opinion, which has been extracted.

In the opinion of Judge O’Neall, the distinction between a tax on stock and on dividends, is emphatically affirmed. He says, “ an Act for the legitimate purpose of revenue, might, I think, be constitutional, even if it were imposed directly on the stock, owned by the citizens of the State, in the U. S. Bank. But the Act does not impose a tax on the stock, but on the dividends : which are paid over to the citizen, and which become his private and separate property, and are not, at all, connected with the United States Bank, except that they are derived from it. As well might a citizen contend that a slave, purchased by him in Virginia with the dividends on his stock, and brought into this State, was not liable to taxation. The absurdity of such a proposition is too obvious to require more than to be stated. To me, it appears equally absurd to contend that income, derived from an institution, not taxable, after it has been separated from it, and is in the pocket of a citizen, amenable to all the taxing power of the State, is still not liable to taxation. It is no longer United States Bank stock: it is no longer necessary to the operations of the bank: it is private property.” In the progress of the argument, the Judge says, “ it must be kept in mind, throughout the discussion, that the tax imposed by the Act of the Legislature, is not on the bank: nor on the stock: but on a citizen’s income derived from it.” The case is distinguished from that of Weston vs. The City Council, on the ground that “ a tax on Government stock, eo nomine, (which was Weston’s case.) may he unconstitutional; and yet the tax on the profits, received by a citizen from it, be constitutional.” At the conclusion of his opinion, referring to the case of McCulloch vs. The State of Maryland, the Judge says, “ to me it appears that the conclusion of this great Judge and constitutional lawyer would warrant a tax on the stock, held by a citizen in the United States Bank. Let that, however, be as it may, I am satisfied, both on general principles and on the authority of the case of McCulloch vs. The State of Maryland, that the Act imposing a tax on dividends, arising from stock, owned by a citizen of this State, “ in all banks not chartered by the State, (meaning the United States Bank) is constitutional.”

Judge Johnson cites and approves McCulloch vs. The State of Maryland. He states the claim of the relators, as “ founded on the circumstance that they are the owners of stock in the Bank of the United States: and that by a bonus paid to the United States for the privilege of banking; they have purchased an exemption from State taxes.” That is precisely the ground taken by the relators in this case. They claim that having paid a bonus to the State for the privilege of banking: and in the case of the State Bank having been, by the Act of the Legislature, as to the “ corporation and stock thereof,” "relieved from the payment of all taxes :” and in the case of the South Carolina Bank, it having, in like manner, as to the Bank,” been “ relieved from the payment of all taxes,” the stockholders are exempted from the payment of city tax on their shares in the Bank and the dividends received from them. The answer of Judge Johnson to the claim of the stockholders of the United States Bank to be exempted from State taxation, applies equally to the claim of the relators to be exempted from city taxation.

At the conclusion of his argument he says — “ I am persuaded that the difficulties about this question have originated in confounding the person of the citizen with the property which he owns. It is the citizen, and not the property, which pays the tax. The property is referred to only as furnishing a rule, by which the amount which the citizen ought to pay, is ascertained. His personal liability is measured by the quantity of land he owns, by his receipts of interest on money loaned, by his professional income or stock in trade: — and where, may I ask, is -there any rational distinction between a tax imposed in respect of these sources of wealth and income, and wealth derived from Bank and Government stock.” In the case of the City Council of Charleston ads. Weston, Judge Richardson says, (delivering the opinion of the Court,) “ the interest paid' annually to the stockholders, when received by them, has no longer any connection with the Bank, but then becomes money, belonging to the individual in severalty, and is liable to be taxed, like any other piece of property, belonging to him.”

These cases, on which the judgment of the circuit Court was rested, and which are cited in the report, clearly recognize and affirm a distinction, as subjects of taxation between the Bank itself, and the interest or shares of individuals in the capital: and the dividends or income of the shares: so that while the bank, itself, is exempted from taxation, the shares of individuals in the capital may not be: and while both the bank and the shares of individuals in its stock are exempted, that does not exempt the dividends or income of the stockholder. Even then if it be admitted that the “ Bank” of South Carolina is exempted, by its charter, from taxation by the City Council, that will not exempt the shares in its capital which may be held by inhabitants of the City, nór the dividends and income thereof, from taxation by the City Council. And if, in the case of the State Bank, the corporation and its stock” are, by its charter) exempted from taxation, that does not exempt the income or dividends, received from the profits of their shares of the capital, by stockholders, who are inhabitants of Charleston, from liability to pay a city tax.

Thus far the judgment of the Circuit Court has been supported by the authority of the cases adjudged, which constitute the law, until they are reversed. I will briefly add some considerations to shew, that, independently of those decisions, the income from stock in the South Carolina and State Banks which may be owned by an inhabitant of Charleston, is subject to taxation by the City Council.

Income or profits constitute the most proper subject of taxation : it is more just and equal than any other. If honestly paid, it would apportion the expense of government among the citizens in proportion to their ability to contribute. Adam Smith, in his Wealth of Nations, Book 5, c. 2, says, “ the subjects of every State ought to contribute to the support of the government, in proportion to their respective abilities: that is, in proportion to the revenue which they respectively enjoy under the protection of the State. The expense of government is like the expense of management to the joint tenants of a great estate: who are all obliged to contribute in proportion to their respective interests in the estate. In the observation or neglect of this maxim consists what is called the inequality of taxation.”— Great inequality of taxation must exist under the wisest system of impost. It is highly impolitic to increase the inequality, by the grant of exemption to particular species of property. Every presumption should be made against such a grant. More than eight millions of dollars are invested in the private banks in the City of Charleston. This capital constitutes a large item in the amount of corporate taxable property: and is principally owned by inhabitants of the city. These, by the exemption adjudged to them, enjoy the security and advantages of the city, without contributing, in rateable proportion, to the expenses of its government and police. If the fortune and circumstances of an individual permit, he may invest his whole property in bank stocks, and thus contribute nothing to the expenses of the city government, however large may be the revenue which he enjoys under its protection. The exemption throws the contribution which the holders of bank stock should make, on other subjects of taxation, to the injury and oppression of the owners. The answer which the holders of bank stock make to this imputation, is, that in the bonus which they paid for their charter, they have paid, in advance, the taxes on their stock, during the continuance of the charter.

This leads to a construction of the charters of these banks. By the charter of the State Bank, its “ corporation and stock are relieved from the payment of all taxes during the time for which it is incorporated.” In consideration of the payment of $20,000, the “Bank” of South Carolina, is, in like manner, “relieved from the payment of all taxes.” There can be no doubt that the Legislature might exempt the holders of stock, resident in the city, from liability to taxation, on account of their stock, by the City Council. But the question is, has the Legislature done so ? It has been argued that the payment of the bonus was a payment of taxes in advance. It certainly was not the city tax which the relators paid into the State treasury, when they paid the bonus. As it was paid to the State, the obvious conclusion is, that it was for the State taxes. This conclusion is not weakened by the terms of the charter, that the banks shall be “relieved from all taxes.” The most plain construction is, that it was intended the bank should be relieved from the payment of all taxes,” in the place of which the bonus was paid. If the exemption be claimed by purchase, the privilege purchased must be limited by the consideration paid. When that was paid to the State, it is reasonable to infer that the exemption was granted from liability to taxation by the State. The claim or obligation which the payment of a consideration and the terms of a contract may create, are, in the execution of contracts, limited to the party who received the consideration or who was bound by the contract. The privilege then claimed by the payment of the bonus, should not be extended to exemption from the payment of corporate taxes to the city of Charleston.

'Whether the bonus was paid to the State for all taxes, in advance, on the capital of these banks: or for the purchase of the franchise to bank, and also of relief from the payment of all taxes, the payment must exempt the banks from liability to the payment of all taxes to the State. The State cannot tax the capital twice: or is bound, by its contract, not to demand the payment of any taxes. But the City Council is not restrained by either of those considerations from taxing the inhabitants of the city for the dividends or income of the stock they may own. This is the obvious and conclusive answer to that view of this case by which it is maintained that, because the State can not tax, the city can not: and that the right of the city to tax is negatived by the fact that the State has never taxed.

By the charter of the city, prior to the incorporation of these banks, the Legislature had granted to the City Council of Charleston, “full power and authority to make such assessments on the inhabitants of Charleston, for the safety, convenience, benefit and advantage of the said city, as shall appear to them expedient.”

A legislative grant should not be so construed as to divert or derogate from a previous grant. Such a construction should be made only in compliance with express terms of revocation, or by necessary intendment. Neither, by the terms of the charter, which does not mention the City Council of Charleston; nor, by any reasonable intendment, can the exemption claimed be extended beyond a liability to taxes payable to the State.

The taxing power of the City Council is granted in the am plest terms. It is not restricted, in its exercise over the inhabitants of the city, to any taxable property which they may own. The taxes are levied by an “ assessment on the inhabitants,” without any qualification or restriction of the subjects, in respect of which the assessment may be made. An inhabitant may be assessed for any thing and every thing. He may be assessed for a dog as well as for land: he may be assessed for his capabilities and industry by a tax on the income he may receive from the “ pursuit of any faculty, profession or employment.” If he has nothing else, he may be liable to a Poll tax. The power of “ assessment” by the City Council has no other limit than such “as shall appear to them expedient.” The inhabitants of the city are made subject to such assessment for the “ safety, convenience, benefit and advantage,” which a residence in the city affords to them. Non-residents under the charter are' liable to be assessed only “ on the taxable property which they may hold in the city.” A tax on the dividends of Bank stock, received by an inhabitant of Charleston is, in effect, an assessment on him for his income from that investment. The cases cited shew that when the dividends of Bank stock are paid to the stockholder, the money received loses its identity, as dividends or profits from the bank shares, and can not be distinguished from profits or income, derived from any other source : and in the character of revenue, enjoyed under the government of the State or City, is chargable with contribution for the expenses of the Government. It was admitted in the argument, by the _ counsel for the relators, that they might be assessed on their dividends, under a general income tax. But it was contended that a tax on the income derived from bank stock, when the income derived from other sources of profit are not taxed, is unequal, and, therefore, illegal. But such a tax is no more unequal than a tax on certain kinds of property, while other kinds are not taxed. It may be assumed that a tax is levied on every kind of property in the city which yields a profit. When the subject from which the profits are derived cannot be specifically taxed, the only mode of enforcing a contribution of such profits, is by a tax on the profits themselves or the income they afford. Thus, the profits made in the pursuit of any “faculty, profession or employment,” have long been assessed, both by the City and the State. Yet it has never been supposed that such a tax was unequal, and, therefore, illegal, because the income from many other sources of profit, was not also taxed. Adam Smith says, that every citizen is bound to contribute to the expenses. in proportion to the revenue which he enjoys under the Government. It is in the neglect of this maxim, he says, that the inequality of taxation consists. The tax on the income from Bank stock was designated by the Council to enforce an equal and just contribution to the expenses of the city government and police. The effect of the judgment of the Court on the construction of the charters of the State and South Carolina Banks is, to sanction and perpetuate what Adam Smith treats as unequal and vicious taxation: when every citizen does not contribute to the support of Government in proportion to the revenue he enjoys under it.

It is to be observed that the question of the exemption of the relators has been considered as if they were inhabitants of the city. Nothing to the contrary appears in the suggestion, nor has been suggested in the argument of the case.

Johnston, Ch. absent at the argument.

Motion granted.  