
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN. 1812.
    The City Council v. Thomas Lee, and others.
    A tax on any faculty, profession, trade, occupation, or employment, does not include the salaries of public officers.
    Motion to set aside a prohibition, in May term, 1809, By the tax ordinance of the City Council of the 29th March, 1809, all profit, or income, arising from the pursuit of any faculty, profession, occupation, or trade, or employment, shall be liable to a tax of 38 1-2 cents on every one hundred dollars, of the value or estimate thereof, to be assessed by the city assessor, provided, that nothing herein contained shall be construed to subject to taxation the profit or income of any clergyman, judge, schoolmaster, or other teacher. Thomas Lee, the comptroller, and William S. Smith, clerk and prothonotary, were assessed, and not having paid the tax on the profits or income of their several offices, they, with other officers, on the 6th of June, 1809, applied, by their attorney, L. Ciieves, Esq., for a prohibition, to restrain the City Council from levying the said assessment, which was granted.
    The grounds stated in the suggestion were : I. That the offices of the said officers did not come under the terms of the ordinance. 2. That if offices do come within the terms of the ordinance, the tax. is against the right of the officers, the constitution, and laws ; is called for by no emergency; and is against the wisest principles of taxation.
    In support of the motion to set aside the prohibition, the reasons submitted were: 1. That the said officers were intended by the City Council to be taxed ; and that this intention is manifest, from the expressions of the ordinance as quoted before. 2. That the City Council had a right to lay such a tax.
    Gadsden and Holmes, for the motion.
   Coecock, J.

I do not conceive it necessary to go into the con. sideration of the power or authority of the City Council to impose the tax ; nor to decide whether it be expedient, for I am decidedly of opinion that the words of the ordinance do not include or comprehend the public officers, and without descending to a technical definition of every word used in the ordinance, I thick it sufficient to say, that we have had a legislative construction of the words for many years; for they are the same as those used in our tax acts, and I have never heard of any instance of a tax collector attempting- to collect such a tax. Indeed, it must be obvious that the salary of a public office is something very different from the profit or income “ arising from any faculty, profession, occupation, or trade, or employment.” I can, therefore, see no ground for a prohibition against the City Council, althpugh there will be a good ground for one against their officer, should he attempt to proceed.

Nott, J.

This is a motion on the part of the City Council to set aside a prohibition, granted against them by the court below.

The suggestion on which the prohibition was granted, states, that the City Council have passed an ordinance, by which “ all profits or income arising from the pursuit of any faculty, profession, occupation, trade, or employment, shall be liable to a tax of 33 1-2 cents on every hundred dollars of the value or estimate thereof,” &c.; and that the city officers are about to levy an execution on the property of these petitioners,-for the tax on their salaries. So that the only question is, whether the public officers of the State are included under the words of that ordinance. It is admitted, that if they are not, the prohibition ought not to have been granted; for the city officers would then be acting without any authority, and would be trespassers, against whom the individuals could have redress by action. The word “ employment,” is the only term under which it is pretended that they can be included. I do not know that this word is any where used as a technical term. It is a common word, generally used in relation to the most common pursuits, and, therefore, ought to be received by this court as understood in common parlance. I do not ■ recollect that I ever saw it used in any legislative proceeding, to express a public office, although in the dictionaries it may sometimes be so defined. On the contrary, whenever any measure relates to both, it is usual to express both “ office and employment,” and whenever the word employment has been used without the other, it has never been considered as embracing public offices. Thus in our acts for raising supplies, the words factorage, employment, faculties, and professions, are used ; and yet nobody has ever considered them as extending to the salaries of public officers. This may almost be considered as a legislative construction of its meaning, and certainly shews its common acceptation. It is not to be presumed that the City Council would have left a subject of such novelty and importance, to construction. I would not do them the injustice to believe, that they intended, by one sweeping word of doubtful import, to bring the most important 0fgces ffi the Slate into botch potch with the lowest meniai employ. ments, about the streets of Charleston, A measure of such impor. tance ought to have been expressed with the utmost precision, and ^ave HoflJ'Hg t0 conjecture. ' Believing, therefore, that from a correct view of the ordinance, public officers are not embraced, there was no ground for a prohibition ; and, therefore, the motion to reverse the order ought to be granted.

Per curiam. We are, therefore, unanimously, of opinion, that the motion be granted ; because there is no occasion for us to pro. hibit what it appears the City Council have never done.  