#### William E. Martin *vs.*The City Council of Charleston.

*Property liable to Oity Taxation.*

Landed estate in the City of Charleston which had been in possession of the Freedmen’s Burean during the greater part of the year *1865*— Held, not exempt from city taxation, because the General Assembly, in the annual Tax Act of December, 1865, had excepted such lands as during the year had been in possession of the Freedmen’s Bureau from State taxation.

Taxable property is not exempt from city taxation, merely because the State forbears to tax it, or, in enumerating the objects of taxation in the annual Tax Act, expressly excepts it.

BEFORE LESESNE, OH., AT CHAMBERS, CHARLESTON, APRIL, 1866.

The decree of his Honor, the Chancellor, is as follows:

Lesesne, Ch. The City Council of Charleston, by an ordinance ratified on the sixteenth day of January, 1866, laid a tax of one dollar and seventy-five cents on every hundred dollars of the value of all landed estate in the city.

The plaintiff is the owner of landed estate in the city, assessed at the value of six thousand dollars, upon which the tax under the foregoing ordinance amounts to one hundred and five dollars. The object of the bill is to restrain the collection of this tax, as being unlawful for the reasons which will be hereinafter considered.

By the city charter, granted in 1788, the City Council are empowered to “ make such assessments on the inhabitants of Charleston, or those who hold taxable property within the same, for the safety, convenience, benefit and advantage of the city, as shall appear to them expedient.” But the Tax Act, passed by the Legislature of the State on the twenty-first day of December, 1865, excepts from its operation such landed estate as during the year had been in possession of the Ereedmen’s Bureau.

*51The plaintiff’s property, above mentioned, was in the possession of the Ereedmen’s Bureau during the greater part of the year 1865, say “from a very short time after the troops of the United States entered Charleston” until the seventh day of November in that year; ánd it is contended that the effect of the exception is to exempt it from taxation by the City Council as well as to exonerate it from the State tax.

The only limitation to the authority of the .city to tax property within its limits is that which is implied in the word “taxable.” Its power embraces all “taxable” property; and the question under consideration, therefore, depends on the meaning of that word as used in the charter.

Is the plaintiff’s house, under the circumstances, taxable property ?

The word has, to some extent, received judicial interpretation in two cases. The first is that of *The State Bank*vs. *The Oity Council of Charleston,*3 Bich. 342. In that case it was held that the property of the Bank was not “taxable,” because the Legislature had declared it to be exempt from taxation in consideration of a bonus paid to the State by the bank for its charter. The amount of the decision is, that property exempted from taxation by the same supreme authority from which the city derived its power to tax is not taxable in the sense of the charter. It does not, therefore, cover the present case. The Legislature, if it had thought proper, might have declared all property in the possession of the Ereedmen’s Bureau to be exempt from taxation, as it did in regard to property owned by the bank. But it has not done so. It has in terms only excepted such property from the tax imposed by itself on all other property in the State of the same description. And it must be considered presently whether this exception, under the circumstances, is equivalent to exemption.

The other case is that of *The Vestry of St. Philip's Church*
      *52vs. *The City Council of Charleston,*McMul. Eq. 139. In that it was decided that the lands belonging to the Church are not “taxable,” because an Act of the Legislature has. forbidden the imposition of any tax on the property of any religious society. That is clearly tantamount to a declaration of exemption of such property from all taxation, as in the case of the bank. This interpretation, too, is furnished by a proviso in the Act itself, in these words: “But no houses owned or erected on such land by any private individual or individuals shall be exempted from paying taxes thereon, according- to their full value.” That is, while the land of a religious society is exempt from all taxation, a house thereon owned by an individual is not. Chancellor Harper, in delivering the opinion of the Court, gives, by way of illustration, various-instances in which certain property would not be taxable by the city, and in all of them he supposes that the property had been exempted from taxation by the State. And his definition of the words “taxable property” in the city charter is, ..“all property not exempted by law from taxation.”

' This case, like the other, is not a conclusive authority in the present case. The Legislature has not, in terms, declared property'in the possession of the Ereedmen’s Bureau exempt from taxation. I will, however, adopt Chancellor Harper’s definition, and that brings me to the question whether, under a proper construction of the Act of 1865, the Legislature intended to exempt such property from taxation; in other words, to declare it not “ taxable.” If it was not taxable when the city ordinance was passed, the City Council exceeded their authority in imposing a tax upon it.

The words of the Act are as follows: *“*A tax for the sums, and in the manner hereinafter provided, shall be raised, and paid into the public treasury of the State for the use and service thereof; that is to say, fifteen cents ad valorem on *53every •hundred dollars of all lands granted in this State, except such lands as during the year have been in the possession of the Ereedmen’s Bureau, and on all lots, lands and buildings, within any city, town, village or borough in this State, except such as during the year have been in possession of the Ereedmen’s Bureau.” Erom what tax is this property thus excepted ? Clearly from the tax just mentioned. No other meaning can be given to the words without straining them in a manner uncalled for. If it had been intended to exempt the property from all taxation, we must suppose that appropriate language would have been employed, as was done in the case of the banks, and the property of religious societies, and as was also done in the Tax Act of 1864, in regard to property in the hands of the enemy. Thus the words used in that Act are, *“*Provided that all lands in this State now in possession or under the control of the enemy shall be exempted from taxation.” Such property, we see, is not simply excepted from the State tax just imposed on all other property in the State of that description, but it is expressly exempted from taxation. Excepting a certain class of property from a particular State tax is, by the force of the term, forbearing to tax it, not exempting it from taxation by another power on which the right to tax had been conferred by the State.

It is contended that, by expressly excepting this class of property from its tax, the State indicated a policy of exemption which must not be counteracted by the city. But if such a policy had been intended, we must suppose, as before remarked, that appropriate language would have been used. Nor can this policy be inferred, as was urged, from the fact that the State herself declines to tax this property, although the tax on land is so much the more fruitful source of her revenue. The State land tax, though light, produces a large amount, because it applies to the *54lands throughout the State. But that amount is not very materially diminished by the exclusion' of those lands which are or have been in the possession of the Ereedmen’s Bureau. The State may therefore very well afford to exercise this degree of liberality. On the contrary, if the city of Charleston is forbidden to tax those houses and lots ' within her limits which were in the possession of the Bureau during the past year, her revenue would thereby be seriously curtailed. In most of the former subjects of city taxation, slaves, securities for money, shipping, carriages, horses, income from professions and employments, and others, have entirely disappeared, or been greatly reduced. She therefore depends mainly on her land tax for success in the effort, in which her Council are now earnestly engaged, to re-establish her credit by paying her indebtedness, and to bring her again under the reign of good government by providing for the necessary expenses.

The conclusion to which I have come renders it unnecessary to consider- a question which was discussed by counsel, whether, in any view, property in the possession of the Bureau, during any part of the year 1865, would be entitled .to exception from .a city tax ordinance passed in 186.6, to raise supplies for that year.

It is ordered and decreed that the bill be dismissed.

The plaintiff appealed, and now moved this Court to reverse the decree, on the grounds:

1. Because the policy pursued by the State in its scheme of taxation,'when clearly shown, must be followed by the City Council. 3 Bich. 342; *jSt. Philip’s Church*vs. *City*Council, McM. Eq. 139.

2. That while it is conceded that the *omission*by the State to tax any specific article of property does not restrain the City Council from taxing it, yet the exclusion of *55such property specifically from the list of property taxed by the State is such an expression of policy as renders a tax by the city illegal. *City Council*vs. *Condy,*4 Rich. 257.

3. That there is no technical meaning to be attached to the word *“*exempt,” as claimed by the Chancellor, and such words as “ relieve” and “ except” are continually used by the Legislature and Courts to convey a similar meaning. *Annual Tax Acts; State*vs. *City*Council, 5 Rich. 566; 8 Stat. 4.

4. That it makes no difference whether the intention of the General Assembly is expressed by a positive affirmation that a certain description of property shall be exempted —or a negative expression that it is not to be taxed — and the intention must control.

*Martin,*for appellant.

*Porter,*city attorney, contra.

The opinion of the Court was delivered by

Inglis, J.

The appellant’s claim for the exemption of his property in Charleston from city taxation is rested exclusively on that clause in the General Tax Act of December, 1865, which excepts from the class of property therein taxed, under the description, “lots, lands, and buildings,” such as during the year had been in the possession of the Ereedmen’s Bureau. The clause can have the operation which is thus attributed to it only by virtue of a legislative intention to this effect appearing therein. The policy of the State on any subject to which those under its authority are obliged to conform, can be known only from the laws of the State on that subject, and these ascertain as well the persons upon whom the obligation is imposed, as the nature and extent of the obligation itself. Whether the *56General Assembly intended, in tbis clause of the Tax Act, to restrain the power of taxation which had been delegated to the city, is not„to be determined by any technical import of the particular terms or form of phraseology used. Unquestionably, the General Assembly being its own interpreter, the force of an absolute and permanent exemption has been given to words, in form of exception only. The case of *The City Council*vs. *Condy,*4 Rich. 254, furnishes an illustration of this. But when the nature and purpose of the Act in which this clause occurs, and the terms in which the clause itself is expressed, are considered, it is manifest that it imports no more than that, for the particular occasion to which the operation of the Act is limited, the State will not subject to the tax which it is therein imposing on "lots, lands, and buildings,” generally, those described in the words of exception. It is difficult to distinguish between such an instance of *expressed*forbearance to tax, and a *taciL*forbearance, such as occurs in the common case of omission from an enumeration of the subjects of taxation. The necessity, in the one case, of expression, in order to take the particular class intended to be omitted out of a general class which is taxed, and in the terms of description of which it would otherwise be included, makes the only difference. When no general class in the enumeration embraces in its terms the favored particulars, a silent omission accomplishes the purpose. By a clause in the Tax Act of 1788, 5 Stat. 58, there is imposed a tax on *“*carriages, (wagons, carts, and drays excepted.)” It cannot be supposed that, by this exception, the General Assembly meant not merely to express its own forbearance to tax, but also to prohibit all taxation of these articles by inferior jurisdictions. But having included in the enumeration of the subjects of taxation a class of articles under the general description, *“*carriages,” and intending not to tax "wagons, carts, and drays,” it was necessary, by words of exception, *57to withdraw these articles from the general class in which they would otherwise he embraced. Further effect than this will not be attributed to the exception in that instance. So far as the intention of the General Assembly is to be gathered from the form of words used, and the connection in which they occur, the present is in all respects like it. It is not perceived how such a mere exclusion by the State of any class of property from its own scheme of taxation, on a particular occasion, can indicate an intention that it shall not be taxed at all. Reasons which induce the State’s forbearance might not, in the judgment of the General Assembly, be at all applicable to the city, or might, as is suggested in this case, be there wholly overborne by contrary reasons. It may even be supposed that the General Assembly, foreseeing the necessity in the present instance of city taxation, may have, for this very reason, and because unwilling to increase the burden, excepted the property described from the operation of the State tax. Every Tax Act may be said to be a declaration of the policy of the State for the time being, but it is in the matter of its own taxation only, unless the intention that any of its provisions shall have a larger application is made manifest.

The cases cited at the bar are all widely distinguished from the present in this respect, that the claim to exemption is, in each instance, based upon statute law general in its terms and permanent in its nature, furnishing no internal evidence of a legislative intention to restrict its application. Such general rules of law must necessarily impose an obligation on all to whom they can apply. In the case of the banks, (3 Rich. 342,) the charters had declared them “ relieved” or “ exempt” from *all*taxes during the period for which they were incorporated. In the case of the *glebe lands,*(McMull. Eq. 139,) by a long course of legislation, the general rule of the non-liability of the “property of religious societies,” &c.; to taxation, had been established, *58recognized, and expressly affirmed. And in the case of the tax on auction sales, (4 Rich. 257,) it is quite evident from the statutes on the subject, that the State intended to transfer, and therefore did transfer, to the city, the power to impose the tax only to the extent to which it was itself accustomed to exercise it at the time of transfer.

This Court does not discover any error in the judgment of the Court below on the issue made, and it is therefore affirmed, and the appeal dismissed.

Dunkin, C. J., and Wardlaw, A. J., concurred.

*Appeal dismissed.*