
    
      The State, ex relatione Ravenel, Brother & Co., James Welsman, James Chapman, and Gourdin, Matthiessen & Co. vs. The City Council of Charleston.
    
    
      An execution' issued by the City Council of Charleston, for a property tax, is not defective, because it does not specify the subject of taxation.
    A fee required to be paid the Harboi Master, for assigning a vessel its place at a wharf, is not a duty on tonnage.
    A tax on “money, or capital, invested in shipping,” is not unconstitutional.
    
      Before O’Neall, J., at Charleston, May Term, 1850.
    The report of his Honor, the presiding Judge, is as follows : “In this case, thé\ relators are shipowners to a large amount. They paid the city tax on all their property for the fiscal year 1848-49, except on their ships. They paid the Harbor Master’s fees on their ships entering the harbor of Charleston, and being moored at the wharves. The City Council, by an ordinance regularly passed 24th April, 1849, provided that “ a tax of forty-eight cents on every one hundred dollars of money, or capital invested in shipping,” should be paid into the city treasury. The relators refused to make a return of their money or capital invested in shipping. Ravenel, Brother & Co. and James Wels-man made verbal statements of the amount invested, and were assessed accordingly by the city assessor. He assessed James Chapman and Gourdin, Matthiessen & Co., at such sums as he had thought right, and gave proper notice of his assessments. James Chapman and Gourdin, Matthiessen & Co., according to the city laws, reduced their assessment. The taxes being unpaid, executions were issued, which did not specify on what particular subject the tax thereby to be collected was assessed. The relators applied for a prohibition, on various grounds — 1st, that the executions were defective, inasmuch as they did not specify the subjects of taxation or assessments for which they were issued. This objection was sustained, as was supposed in the argument, by the case of the State vs. Graham, (2 Hill, 457.) But I thought that case had no relation whatever to the point before me. That was where the capitation tax on a free mulatto being unpaid, the tax collector, under the Act of 1833, issued an execution for the sale of the man himself; “this,” as Judge Harper said, “ was an extraordinary mode of proceeding,” given by law, and doubtless the execution itself should show that the defendant comes within the provisions of the Act. But here there is no such necessity; this execution is for the collection of a property tax, and there is no more necessity to state the cause of the tax, than there would be in an execution for taxes tinder the general tax Act of the State. 2d. The relators alleged that, having paid a tonnage duty, in the shape of Harbor Master’s fees, they were not liable to a farther tax on the same property. The relators here commit a plain mistake; they have paid no tax on the' ship; they have merely paid the Harbor Master’s fees for assigning their respective vessels a berth at a wharf. They are ascertained, it is true, by the burthen or tonnage of the ship ; but it is in no shape a tonnage duty; otherwise, the ordinance would be unconstitutional: {Alexander vs. Wilmington and Raleigh Railroad Company, 3 Strob. 594.) 3d. It was; supposed, in the argument, that the ordinance was in contravention of the Constitution of the United States, as a regulation of commerce, as a tonnage duty, and as a preference of the ports of one State over the ports of another. I confess I thought these various constitutional objections were the results of legal ingenuity, tasked to its utmost powers of research and distinction. A tax on money invested in shipping, is no more a tax on commerce, or a regulation of commerce, than a tax on stock in trade, or money at interest. Each affects a man’s income ; but they neither increase nor diminish the facilities by which commerce is carried on. It is very true that an ordinance, calculated to induce men not to invest in shipping, or improvements, in such a city as Charleston, is far from a wise exercise of powers. Burdens imposed on industry are like slanders upon female character, irreparable. I am very much inclined to concur with the learned counsel for the relators, in saying, if Charleston should ever see the grass growing in her streets, she may blame her own legislation. Whether I and the relators’s counsel be right, in our judgment, as to the policy of the city legislátion, is altogether unimportant in the decision upon the matter in hand. That even a tax upon the ship is not in violation of the Constitution of the United States might, if necessary, be shown. Indeed, if it be property and within the jurisdiction of the State, it seems to me the power to tax is plain and self-evident. In Smith v. Turner, at page 13 of the pamphlet published by the United States Senate, containing the opinions of the Judges of the Supreme Court in that case, and that of Norris v. The City of Boston, it is said by Judge McLean, and not at all disputed by his brethren: A State cannot regulate foreign commerce, but it may do many things which more or less affect it. It may 
      
      tax a ship, or other vessel used in commerce, the same as other property used by its citizens.” The same principle, although upon another subject, supposed to be protected from State taxation by the Constitution of the United States, is affirmed by the whole Court, in Berney v. The Tax Collector (2 Bail. 654.) The tax here, however, is less obnoxious than a tax on the ship, eo nomine, would be ; it is “ on money invested in shipping.” How can it be called a regulation of commerce ? It is merely k deduction from the per centum of profit which the owner is allowed to realize. There is, to my mind, no difference between such a tax and that on stock in trade. What is stock in trade but money invested in merchandize, for sale, barter, or exchange ? And what is merchandize but a means of commerce ? So is a ship ! A tax upon both, or either, unwisely applied, may banish trade from Charleston, and may, in the end, make her as deso-: late as Tyre. Still this is no regulation of commerce. It is taxation, forced upon the people, until they find it to their interest to seek other homes Í The tax here is in no sense a duty of tonnage. Acording to Alexander v. the Wilmington & Raleigh Rail Road Company, (3 Strob. 594) a tonnage duty is a tax on the capacity of a ship or vessel. This is no such thing in words or effect. It is on the money invested in shipping, and that may not at all be regulated by the size. For a small ship, of fine finish, may .cost as much as one of much heavier burthen, coarsely fitted up. Neither can it be considered as a preference by a regulation of commerce or revenue of the ports-of every other State over the port of Charleston. It is not, as we have already seen, any regulation of commerce. It cannot give any preference, as a matter of city revenue, to other ports. For, although it may be an unwise tax, still it leaves the port of Charleston as it was before, free to all who choose to visit it. If there be anything at all affecting it, her own people are less favored by herself than citizens of other States. The Constitution did not intend to control domestic regulations, by the State or city, affecting' her own people. It intended that neither Congress, the States, nor any City should give such a preference to one port, by discriminating legal advantages, so as to draw commerce or trade from other ports of other States. But if Charleston is unwise enough to levy such taxes as will drive every ship her merchants may own from her own port, I do not see how the Constitution of the United States can help her. The ballot box, not the Court House, is the place to obtain the remedy.
    
      I'd m0fi0n for the writ of prohibition was refused.”
    The relators appealed, and now renewed their motion in this Court, on the grounds :
    1st. That the executions against the defendants were fatally defective, in that they did not specify the subjects of taxation, or assessment, for which they were issued.
    2d. That the defendants, having paid a tonnage duty, in the shape of Harbor Master’s fees, a further assessment on their capital in shipping, amounted to a double tax on the same property.
    3d. That the assessments made by the City Council on the capital of the defendants, vested in shipping, are in violation of the Constitution of the United States, being a regulation of both foreign and domestic commerce, duties levied on tonnage without the consent of Congress, and a preference, by a regulation of commerce or revenue, of the ports of every other State over the port of Charleston.
    4th. That the decision of the presiding Judge was, in these and in other respects, contrary to law, and to the Constitutions of this State and of the United States.
    
      Yeadon, B. F. Porter, for the motion.
    
      W. D. Porter, City Attorney, contra.
   Per Curiam.

This Court concurs in the judgment of the Court below. The motion is dismissed.

O’Neall, Evans, Wardlaw, Frost, Withers and Whit-ner, JJ-, concurred.

Motion dismissed.  