#### THE COMMISSIONER'S OF WILMINGTON *vs*H. A. ROBY.

Fo-t the purposes of local-police, the charter of a town may constitutionally authorise the inhabitants to tax themselves, or to do so through persons chosen by them.

The charter of the town of Wilmington, authorising the Commissioners to tan' transient traders, for purposes of police,- is not unconstitutional.

But the tax for that purpose, authorized by the Act of 1811, eh. 64, must bo-laid annually.

By coming within a town and acting there, a person becomes liable as an inhabitant and member of the corporation.

The cases of *TheCommissioncrs of Plymouth*v. *Pettijohi,*4 Dev. 591, and *Whitfield*v. *Longest,*6 Ired. 268-,.cited and approved. .

Appeal from the Superior Court of Law of New Hanover County, at the- Special Term in January 1848, his’ Honor Judge Manxy presiding.

This suit was commenced by warrant on the 14th of February, 1S46, to recover the sum of $25 for a town tax, claimed from the defendant as a transient person keeping a shop in the town of Wilmington.

A Private Act, passed in 1784, provided for the election of Commissioners of the town, and incorporated them and their successors, with the usual powers of appointing the necessary town officers, making ordinances and regulating the police of the town. It enacted that the Commissioners “ shall annually lay a tax not exceeding ten shillings on every £100 value of taxable property in the town, and also a poll tax,” &c. to- be collected and by the Commissioners applied- to various enumerated public purposes in the town.

By an Act of 180G-, it was, among other things enacted, that the Commissioners of Wilmington, if they deem the same necessary, may have power annually to lay a tax not exceeding £10 on each transient trader or shop-keeper,who *251shall retail goods in the town; with a proviso, that no person shall be deemed such transient trader, who shall be returned on the list of taxables for New Hanover County, or who will make oath, when the tax is demanded, that he has come into the town for the purpose of carrying on a permanent trade therein.

In 1811 a third Act was passed, enacting that the Commissioners may enlist a guard and night watch, “and that, for the purpose of enabling the Commissioners to support such guard, they are hereby empowered to lay an additional tax,” as follows: on each horse kept within the town, not exceeding fifty cents ; on each four wheeled carriage, not exceeding $2 ; on all two wheeled carria. ges for hire, or pleasure, not exceeding $ 1; on all drays and carts employed for hire, not exceeding SS2; and on all transient persons keeping stores or shops in the said town, @25.

The plaintiffs further gave evidence, that a town guard was kept up, and that on the 2d of January, 1844, seven persons who were chosen Commissioners for the year 1844, qualified, and then passed the following ordinance :—

“ Resolved, and it is hereby ordered that a tax of $25 be laid on all transient persons keeping stores or shops in the town of Wilmington, according to an Act of Assembly of 1811.”

The plaintiffs further gave evidence, that early in January 1846, the defendant came with a stock of merchandise from Virginia to Wilmington for the purpose, as he then said, of temporarily selling the goods there; and that he remained there, as a trader, and retailed the goods for five or six weeks and then went away; and that during that time the treasurer of the town demanded from him the sum of $25 for a tax, and the defendant refused to pay it.

*252On the trial the counsel for the defendant objected to a recovery on several grounds : of which it is necessary to notice only two, as the opinion of the Court is confined to them. They are, first, that the Legislature could not constitutionally authorise the Commissioners to lay this tax; and secondly, that no tax was imposed for the year 1846. The presiding Judge ruled those points, as well as the others, against the defendant; and from a verdict and judgment accordingly, he appealed.

No counsel for the plaintiffs.

*Strange,*for the defendant, argued í

1. The remedy is misconceived supposing .the right to exist, for

First. It is a tax, and like all other taxes collected only by distress, as is fully shéwn by the provisions in relation to other taxes in the same body of Acts. Act of 1784, ch. 49, sec. 2. 1806, ch. 37, sec. 4. 1834, ch. 5.

Second. But at any rate there is no remedy by warrant, unless some special law be shewn for it, as it comes within the general law giving jurisdiction to a Justice of the Peace. *Rev. Stat. ch.*62, *sec.*6.

2. There was no sufficient evidence before the Court of the Private Acts. See *Rev Stat. ch.*44, *sec.*4 and 5.

*3.*That any ordinance had been passed conformably to the Act not proved, for the Books of the Commissioners are not evidence of their proceedings. 1 *Stark. Ev. 292.*

Second. If they were, then this particular ordinance was not authenticated.

4. Act unconstitutional. *Can. XI. S', art.*4, *s.*2, *da.*1.

5. Ordinance does not specify the only purpose for which the Commissioners were authorized to lay the tax.

6. The Commissioners are only authorized by the Act to lay an annual tax. Now the terms of this act of the €o mmissioners in 1844 are general, and either the Commis» *253sioners have exceeded their authority in laying a tax for more than one year, or no tax is laid for 1846.

7. The warrant does not properly set forth how the claim is due. *Rev. St. ch.*62, *sec.*21. It makes no reference to the ordinance. *Hamilton*v. *Jervis,*2 Dev. and Bat. 227. *Huffy v. Averitt,*5 Ire. 455.

8. Warrant technically defective. 1st. In not setting forth the statute. • 2dly. In not setting forth the bye law. *Wile, on Municipal Corporations,*page (marginal) 172, sec. 423 to 429.

9. Defendant not a transient person within the Act of Assembly.

10. Ordinance void, as in restraint of trade. *Wil. on Mun. Corp.*144, sec. 342. /

Rtjbtin, C. J.

The Court sees no reason to doubt, that, for the purpose of local police, the charter of a town may constitutionally authorise the inhabitants to tax themselves, or do so through persons chosen by them. It is a convenient and almost a necessary power, and has been almost universally delegated and exercised,and,we believe, never questioned before. We perceive no objection to it. In the argument it was urged as an objection to it in this case, that it could not extend to the defendant, who is a stranger, but is to be confined to the members of the corporation. But the objection does not seem to us to be sound. In the first place, it is to be remarked, that the charter and ordinance are not directed against the defendant as coming from Virginia. They make no distinction between the citizens of this and other States or countries ; as they operate alike on all persons, not before settled in the town, unless they go there to become permanent traders, or were inhabitants of New Hanover and assessed for taxes in that county. Then, it is also not true, that the defendant is to be treated as a stranger, so as not to be bound by the ordinance. For, it is set» *254tied, that by coming within the town and acting there, a person becomes liable as an inhabitant and member of the corporation. *Commissioners of Plymouth*v. Petti*john,*4 Dev. 591. *Whitfield*v. *Longest,*6 Ired. 268. It is just that it should be so ; for as the defendant has in the security of his property the benefit of the night watch and of the other police establishments, he ought *to*contribute reasonably towards their *expense; and this*tax allowed by the legislature, or viewed in itself as an annual imposition, cannot be. deemed unreasonable.

But, while the power of self-taxation, may be rightfully conferred on municipal corporations, it is undoubtly true that the power may be restrained and regulated by law, and that commissioners of a town can only exercise it in the manner and within the limits prescribed by the legislature. On this ground we think the defendant was entitled to judgment, as he became a trader in the town in 1846, and there was no tax laid for that year, at least, not lawfully. Each of the statutes given in evidence, enacts, that the commissioners shall *“*annually lay” the taxes mentioned in them. Such are the express terms of the Acts of 1784 and 1806. The reasons for thus restricting the power are sufficiently plain. No more revenue ought to be levied than may be requisite for useful expenditures; and, as the latter may and, probably, will vary from year to year, so ought the former. Besides, the commissioners themselves are chosen annually; and it is natural to expect that the power of taxation by each set of commissioners should be limited by their term of of office, because by that means there is secured to the inhabitants of the town a wholesome check against oppressive taxation and extravagant expenditures. These considerations are not, indeed, necessary to aid in the construction of the two first Acts ; for, as has just been mentioned, both that of ’84 and 1806 are positive, that the taxes shall be *laid*annually. The language of that of *2551811, it is true, is not quite so explicit. By it the commissioners “are empowered to lay an additional annual tax, as follows:” and one of those enumerated is that of f 25 on transient shop-keepers. Possibly, if this Act stood by itself, it would admit of an argument, that it did not mean that the tax should be imposed annually, but only that, whenever imposed, not-more than that sum should be levied in and for any one year. But, when construed with the parts of the charter contained in the two preceding acts, and with reference to the considerations of policy before and verted to, we think the just interpretation of the last act clearly is, like the others, that the tax must both be laid annually and be limited to the sum of $25 annually. No reason can be conceived, why the taxes authorized by the act of 1811 on horses, carriages, drays, carts, and transient traders should be permanent, while all others were to be laid from year to year, so as to correspond with the annual exigencies of the town and the varying ability of the people. On the contrary, all the acts, being in *pari materia,*are to be construed together; and they mean that all the town taxes should be laid, as well as collected, year by year.. The ordinance of January 2, 1844, does not purport to extend to the year 1846, and, possibly, was not intended to operate beyond 1844. If, however, it was so intended, then the Commissioners exceeded their power, and for the excess, at all events, the ordinance was void. In either case the defendant did not owe the tax demanded of him; and therefore the judgment must be reversed and a *venire de novo*awarded.

Per Curiam. Judgment reversed and *venire de novo.*