#### *The City Council of Charleston ads. The Vestry of St. Philip’s Church.*

The lands, belonging to St. Philip’s Church, in the City of Charleston, is exempt from City taxation, under the classification act, (1815) and are not liable with the other property, within the limits of the City, to assessments and taxes made and levied under the City charter.

*Before*Harper, Chancellor,

Georgetown,

*January Term, 1838.*

The statement of the case appears, from the Chancellor’s decree, in the following words:

The object of the bill is to restrain the City Council of Charleston from collecting a tax, assessed under the city or*140dinance of 1837, upon certain lots and buildings, the property of the complainants. These lots are generally in the hands of lessees, to whom they have been let for thirty years, renewable forever. The grounds, on which the exemption from taxation is claimed, are, of immemorial usage, since the acquisition of the property by the church, in 1698; the provisions of many annual tax acts of the Legislature, exempting the property of churches and religious societies from taxation, or recognizing its exemption; and the permanent provision of the act of 1815, declaring such property exempt.

I have no doubt, in the origin of the exemption, that it was regarded as *the*buisiness of the State, to provide for the support of religion; and the government would not, of course, tax its own property. Various acts of the Legislature are referred to, from 1782 to 1787, exempting property of churches from taxation. From the last mentioned year, there does not appear to have been any such express saving, until 1793, when, reciting that doubts had arisen on the subject, the act provides, that nothing therein contained shall be taken to impose any tax, on the property of religious societies, *&c.*The act of 1815, permanently classifying and fixing the value of land, for the purpose of taxation, provides. “That nothing in this act contained, shall be construed to impose any tax upon the property, or estate, of any religious society, &c.; 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.” By the charter of the city of Charleston, granted in 1783, the City Council are authorized “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.” It is contended that the houses and lots in question are not taxable property, within the meaning of this clause of the charter, nor subject to the assessment. There may be some difficulty in giving a precise definition to the words *taxable*property, as used in the charter. In general, all property in the State, is liable to taxation by the State; and if found within the limits of Charleston, is liable (or the owner, in *141respect of it, is liable,) to be taxed by the City Council. I do not suppose that the mere circumstance of the Legislature’s never having thought proper, in fact, to tax any particular sort of property, would exempt it from city taxation ; but the State may, by its own contract, exempt a particular property from taxation, by itself; as by granting a bank charter, receiving a bonus, and stipulating that the property of the Bank shall be exempt from taxation; I suppose this would not be held taxable by the city. So, if for any purpose, as for the encouragement of any art or production, the Legislature should declare a particular sort of property exempt from taxation, though this act would be under its own control, and might be repealed, whenever it thought proper, I suppose, so long as it remained of force, it would be held to restrain the City Council from taxing the property in question. So, if, when taxing generally a particular species of property, the Legislature should declare such property, in the hands of certain individuals or corporations, exempt from taxation, on account of some supposed laudable use to be made of it — -and I think the tax in question must fall within this last predicament. It is true, that the act of 1815 does not expressly declare that the property of religious societies, (fee., shall be ex-emptfrom taxation. It only declares that nothing in this act, declared or contained, shall be construed to impose, (fee. But, in truth, the act imposes no tax upon any property. Its only object is to classify lands, and fix their value, with a view to future taxation. The only possible meaning I can give to the words, is, that this act shall not be so construed as to include lands of religious societies, (fee., in any of the classes whose value is hereby fixed. Taxes on lands have been always since imposed *ad*valorem, according to the valuation of the act; but the lands in question have no valuation. But I must regard this as *res adjudicaba.*It appears that in 1800, a bill was filed by the lessees of complainants, for the purpose of restraining the tax collectors and assessors from collecting the city taxes on the lots in question, on which an injunction was granted ; and upon a final hearing of the case in 1801, the injunction was made perpetual. It appears that another bill was filed, between the same parties, and for the same purpose, and an injunction *142granted thereon, in 1807. There was evidence that the bills and answers in these cases had been searched for, and not found, in the Register’s office; but the orders were produced for an injunction, from the Injunction Book.

A similar bill was filed in 1813, on which an order for injunction was granted by Chancellor Gaillard. I do not understand that this case was brought to a final hearing, or that there was a decree for.perpetual injunction. The injunction was probably acquiesced in. From the statement of counsel, it is understood that the bill of 1813 goes on this distinction, that the modification of the exemption, contained not only in the act in 1815, but in many previous annual acts, which subjects *to*taxation “buildings owned or erected on such lands, by any private individual, or individuals,” only applies where the buildings to be erected, are to remain as the property of the tenant, so as to be removable by him at the expiration of the lease; whereas, as appears from án inspection of these leases, the buildings erected were to become the property of the lessors and that the decision was made accordingly. Another bill was produced, filed in 1832, by the assignees of the lessees, parties to the former suit, but it does not appear what was done upon it.

It was urged against the effect of the decree of 1801, that the parties to the suit are not the same ; in the former case, they were the lessees, and the collector and assessor,— in the present case, they are the church and the City Council. But not only parties, but privies, are bound by a judgment or decree. It is hardly necessary to say, that when one party claims under another, this constitutes privity. It is said, that a verdict for or against a lessee, is evidence for or against the reversioner. Phil. Ev. 227. 4 Com Dig. 89, Tit. Evidence, A. 5.

This is the relation of the present and former complainants. The assessor and collector were merely the agents of the defendants, and represented them. Tlaese cannot be regarded as standing in a less intimate relation of privity. The orders of 1807, and of 1813, were, I suppose, interlocutory ; and though they might be entitled to respect as authority, could not themselves be regarded as adjudications. If the injunctions ordered have never been dis*143solved, they may he still in force; hut complainants coming to obtain the benefit of them, defendants would he entitled to have the merits of them examined.

I have not the means of ascertaining whether the modification of the exemption, to which I have referred, was contained in any of the acts previous to 1801. The decree of that year, I suppose to have been made upon the act of 1793, and that act is not within my reach. If not, it might he urged, that, by the alteration of the law, subjecting to taxation, buildings owned or erected by private individuals, a new right has arisen, and a new case is now made. The act of 1793 did, however, exempt from taxation the property of religious societies, very nearly, or quite, in the terms of the act of 1815. The tax now sought to be collected is assessed, in terms, on the property of a religious society, and is demanded of a religious society, in respect of the property owned by them. The notice to complainants, demands it as a tax on their *Glebe lands.*I can give no effect whatever, to the exemption of the act of 1815, if this tax may be enforced. The only consistent interpretation which it is possible to give to the modification, is, that the individual or individuals who own, or have owned buddings, on such lands, shall be liable to the tax, in respect of such buildings, according to their actual value.

It is ordered and decreed, that the injunction be made perpetual.

The Tax Ordinance of the City Council, for the year 1837, is as follows:

“That the following species of property, owned or posessed, within the limits of the city of Charleston, shall be subject to taxation.

“Every house, building, lot, or other landed estate, shall be, and is hereby made liable to a tax of-fifty cents on every hundred dollars, of the value, or estimate thereof, to be assessed by the City Inquirer and Inspector. Provided, that no tax shall be imposed on any building occupied by a religious, charitable, or literary society.”

Upon this Ordinance, the assessment has been made on the lands in question, which, it was proved in evidence, comprised two entire squares of land in the city of Charleston, at a distance fern St. Philip’s Church itself, on the streets, through which squares, lamps, drains, and pavements, were placed by the corporation, in the same manner as the other streets of the city.

A copy of the Glebe leases was given in evidence, made by St. Philip’s Church to the lessees, for thirty one years — which contained a covenant on the part of the lessees, to pay all taxes and assessments which might be imposed by the State, or the municipal author, ities.

*144• The City Council of Charleston appealed from the foregoing decree, on the following grounds :

1. That the lands, belonging to St. Philip’s Church, are not exempt from city taxation under the classification act of 1815, and are liable, with all other property within the limits of the city of Charleston, to assessments and taxes made and levied under the charter of said city.

2. That the lands leased out by the complainants to individuals, with the buildings erected thereon, are liable to taxation by the said City Council, in common with other property, for the general benefit and advantage.

3. That the liability of the said Glebe leases and buildings to city taxation, was recognized at the inception of those leases, as appears by the clause under which the lessees covenant to pay all taxes and assessments.

4. That the injucntions heretofore granted, at the instance of the Glebe lessees, were interlocutory, and not obligatory on the defendants, who were neither parties nor privies, and who now claim the right to assess taxes under an ordinance, differently framed from the law under which the injunctions were granted.

5. That the complainants are not, in law or equity, in the case presented, under the evidence, entitled to a perpetual in junction; and there should have been a reference ordered, to inquire into the property held by the Church, distinct from the lessees.

*Curia, per*Harper, Chancellor.

I do not well perceive what definition can be given to the words “taxable property,” unless it be made to mean *all property not exempted by law from taxation.*The word, *taxable,*must be supposed to have been used for some purpose. But it answers no purpose, if it be applied, as suggested in argument, to such property as, is in its nature, incapable of being taxed — such as a public bridge, where there is no one to pay the tax. No law was needed for this purpose. It is admitted, on all hands, that the Legislature may alter, modify, or abrogate the charter, of a public, or civil corporation, instituted for purposes of government, at its pleasure. If, therefore, the Legislature should enact a law, *145that the City Council should not tax any specified sort of property, there can be no doubt that it would be bound by such enactment.

If the enactment of the Act of 1815, had been in this form — “whereas, religion ought to be encouraged, and respect paid to property dedicated to the service of Almighty God; be it therefore enacted, that the property of religious societies, <S:c., shall be exempted from taxation:” though the Legislature might have repealed this act at pleasure, and subjected the property to taxation, yet while it continued of force, could the City council have taxed such property ? So, if it had said, “for the encouragement of the useful arts, steam mills and engines shall be exempted from taxation;” the terms of the act would only import that they should be exempted from its own taxation — for State taxation is the exclusive subject of the act: yet, if we should say that the City Council could tax in such case, it would be to say, that the policy of the superior and controlling authority might be counteracted or defeated, by the inferior authority, derived only from it, and liable to be modified and controll-at its pleasure. This would be very different from amere forbearance to tax, on the part of the Legislature. When the State receives a bonus for the grant of a bank charter, and stipulates not to tax, it is admitted that the bank is exempted from city taxation. And yet it does not stipulate, in terms, that the City Council shall not tax. And it makes no difference that, in one case, there is a contract binding on the State itself, and in the other, a law repealable at pleasure. The law, so long as the Legislature thinks proper to allow it to remain of force, is as obligatory on all inferior authorities, as the contract can be on the State.

And does not the clause of the act of 1815, in question, mean precisely what I have above suggested'? I have not heard even an attempt to suggest a different meaning. As to the motive recited for the exemption, it cannot be doubted that the object of the enactment was, to favor purposes of piety and benevolence. I think no one reads the clause who does not know that its object was, by a permanent law, to exempt the property of religious societies from its own taxation; and accordingly, though, by all subsequent acts, taxes are imposed on all lands, lots, (fee., without any ex*146emption or qualification, no taxes have ever been enforced upon any property of such societies — and if thus exempted from its own taxation, it must be equally so from that of the city.

■ With respect to the argument, that, as the lessees of the glebe lands have covenanted to pay all taxes, the tax is in fact imposed upon them, it is to be observed, that the tax is imposed, not on the buildings — which there seems no reason to doubt are liable to taxation, according to the terms of the Act of the Legislature — but, in terms, upon the *lands,*of which the title is in the complainants, and which we must certainly regard as their property. The tax, too, is demanded of the religious society — the church corporation —and certainly it is not a reason for enforcing a tax against a person, not liable to pay it, that another has covenanted, in the event of its being enforced, to indemnify him against it. You have no right to drive the party to his remedy, on the covenant. The decree is, therefore, affirmed.

WM. HARPER..

Gantt, Evans, and Butler, Justices, and Dunkin, Ch., concurred.

Richardson, J., having an interest in the cause, gave no opinion.

D. Johnson, Ch.,

*dissenting.*I concur with the Com’t, that the injunction was properly granted, but I cannot agree that the lands, in the hands of tenants, or even in the possession of the church, are not the subject of taxation.

The Act of 1783, incorporating the city, authorizes the City Council to “ make such assessments on the inhabitants of Charleston, or those who hold *taxable property*within the same,” *&c.,*“ as shall appear to them expedient,” and the ordinance, under which this assessment was made, provides, amongst other things, that a tax of fifty cents should be assessed on every $100 of the value of every house, building, or wharf lot, or other landed estates. The terms “ *taxable*property,” used in the Act of incorporation, are, in all conscience, broad enough to cover every thing that can become the subject of property, and the power of the City Council over the subject has not since been abridged or limited, The ordinance authorizes an *147assessment on all *landed estates*within the limits of thé city; and when it is known that these lands are located there, and are owned and possessed by persons residing there, all argument on the question, whether they are liable to taxation, appears to me to be concluded, and in attempting to reason about it at all, I feel as if I was endeavoring to demonstrate a self-evident proposition.

It is not pretended that the Legislature has taken away from the City Council, in express terms, the authority to tax even the lands held and possessed by the church itself, but it is supposed to be implied by the Act of 1815, which exempts from the State tax “ the property of any religious society,” <fec.

If this implication can be maintained, it follows, that the City Council can tax nothing which is exempted from the State tax, by express enactment; and if that be true, neither can it tax property not taxed by the State; for I cannot distinguish between property exempted from taxation by express enactment and that not taxed at all. The consequences are precisely the same — neither pays any tax.

The word taxable, used in the Act of incorporation, as descriptive of the property authorized to be taxed, imports nothing else than property that may be taxed, and in the common sense view of it, every thing that one could have, or possess, is included; and at first view it would seem to have been unnecessarily introduced. But it has its meaning and its use, notwithstanding. The city contains numerous public buildings, which are used exclusively for the purposes of the State; the streets, too, are common to all, and they cannot be taxed, because no one is liable to pay the taxes. They are not taxable property.

Words are not always construed according to their literal meaning ; they are sometimes understood in a technical sense, at variance with the literal; and in a doubtful case, I should hardly think it would be objected that the enactments of the Legislature, which used them, might bé resorted to for the purpose of attaining the truth. If we refer to the Act of 1815, which contains a classification of the lands, with a view to taxation, it will be found to contain a general, sweeping clause, by which a tax is imposed on all the lands owned within the limits of the State, and *148if the church lands were not *taxable property,*where was-the necessity, and what was the use, of the proviso, “ that nothing in this Act contained, shall he construed to impose any tax upon the property, or estate, of any religious society *V’*

If it he insisted, that the taxes, imposed by the State, on the property of the inhabitants, indicate that, by *taxable*property, is meant property taxed by the State, to what period of her legislation will it be referred'? The power of taxation, for the purposes of State, is unlimited, and from time to time taxes have been imposed on property, interests, or income, which have been afterwards exempted, or in other words not taxed; and I do not know what is meant when it is said that property is exempted from taxes, by usage. The Act of 1788. Pub. Laws 436,' may be referred to, as an example ; that imposes a tax on carriages, (“ vvagons, carts and drays excepted”) and it is worthy of remark, that in the same parenthesis the lands whereon buildings are erected for divine worship are also exempted; and I do not know that any thing would surprise the inhabitants of Charleston more, than to be told that wagons, carts and drays, from which, now and for many years past, they have derived a considerable revenue, are not liable to the city tax, because they were exempted from the State tax by express enactment, in 1788, and have, never since been taxed ; and if the church property is exempted, for that reason, clearly, these articles of pror perty are also exempt, by the same rule.

The state has already received her portion of the surplus revenue. For aught we know, Congress may, at no distant day, distribute amongst the States the proceeds of .the public lands. The friends of the Bank of the State hoped, when it was incorporated, that at a ‘future day, the profits from it would pay the civil list, and if from one, or all of these sources, the State should derive a revenue sufficient to meet all the demands upon her treasury, it would be no surprise to find in our statute book, “ Be it enacted, in consideration of the premises, that, for ten years to come, no tax shall be imposed on the inhabitants of this State for the service of .State.” In that event, Charleston, *149without the power of taxation, must become a waste, and riot and disorder pervade her streets.

In this connexion, the case of a bank exempted from the payment of taxes, by express enactment, in consideration of' the bonus paid, is put in the Circuit Court decree as an illustration, and this, it is said, exempts it from city taxation, and therefore the church lands cannot be taxed.

In conferring on the City Council the power of taxation, the Legislature must have reasoned, that money was as necessary, though perhaps to a less amount, to carry into effect the objects of the corporation as it was to carry on the machinery of the goverment of the State — they said, therefore, to the incorporation, assess a tax[on all the *inhabitants toho hold taxable*property, to such an amount as you may deem expedient, and as will provide the means of defraying the expenses of the city. The banks have hitherto derived, and it is hoped will continue to derive, large profits from the privileges granted to them, and reasoning, *a*priori, it is difficult to perceive why the banks, in respect to the property they own, as corporations, should not contribute, in common with the citizens who hold property, to the expenses of the city, in the good order and government of which they are equally interested. But they are the creatures of the Legislature, which had the right and the power to clothe them with1 all the privileges, immunities and responsibilities, that it might think proper ; and the reason why they are not liable to the city taxes is well expressed by my brother O’Neall, in the case of the State Bank et al. vs. the City Council of Charleston, decided in March 1832, but, I believe, not published. The banks were not in existence at the time the city was incorporated, they had neither form shape nor substance. They were created, called into existence, by the will of the Legislature, and the very act which created them, declares, that they should, during the continuance of their charters, be exempt from *all*taxes; excluding the idea that they were liable to taxation under any authority derived from the State — not so with regard to the Church lands. Ás before shown, all the acts for raising a revenue, for the service of the State, regard them as a subject of *150taxation, and the exemption is merely directory to the assessors and collectors, not to impose it on them.

I am of opinion, notwithstanding, that the Church is not liable to this assessment. The authority given by the act of incorporation, to the City, Council, is, to impose an assessment on the *inhabitants who hold*taxable property — these lands are in possession of the tenants — they are held by the tenants, and supposing that, as Church lands, they are exempted from taxation — how is it, I would respectfully ask, that the tenants are not taxable, in respect to the interest they have in them, whether it consists of a leasehold, freehold, or the fee — there is, certainly, nothing in any of the acts referred to, which has the most distant allusion to such an exemption, nor is there any thing in reason or common sense to shew that they ought not to contribute, in common with the other inhabitants, to the common charge.

Most of the leases, it is said, contain covenants, that the lessees shall pay all assessments and taxes, and this is another reason why they, and not the lessors, are bound, as between them and the city authorities, to pay the taxes.

The process of collecting taxes is, and must necesarily be, a summary one. If the taxes are not paid, the collector forthwith issues his execution, without notice, summons, or trial, against the delinquent, under which the sheriff may seize any of his property and sell it for payment of the taxes. How is he to know to whom the property belongs, unless the ownership is indicted by the possession'? If the party in possession tells him that it is the property of another, and that other disclaims it, is he to sit in judgment and determine to whomitbelongs, and against whom to issue his execution? We look in vain through our statute book for any authority for such a proceeding.

The case referred to, in the Circuit Court decree, as having been decided in 1800, appears to have been the case of the lessees of the Glebe lands against the collector and assessor of State taxes, to which neither the present complainants nor defendants were parties, and of course they *151are not bound by it as *res judicata,*and I do not understand that this is now insisted on.

DAVID JOHNSON.

O’Neall and Earle, Justices, concurred.

J. Johnston, Ch. signed neither opinion.

Eckhard, for the motion, contended, that under the powers granted to the City Council of Charleston, by the Legislature, they had the power to pass the Ordinance, which subjected the property of this Church to city taxation. Under the constitution, this sect of Christians is not more favored than any other. Religious liberty is guaranteed to all denominations. He cited in the course of his argument, upon the various grounds of appeal — 2 Kent’s Com. 332; 1 N. & M’C. 528; Decisions, 1832, p. 105, *The State Bank*vs. The City Council also, *Id.*107; State Cons. Art. 8; 4 *Peters 561*— Act 1785, for raising supplies, 4th Stat. at Large, 11 sec. p. 693-5. *Id.*209, 227, 3d sec.; Act 1806, 5th Stat. Id. p. 331 Act 1815, (classification.)

Dalco’s Church History, p. 34; 1 Angel & Ames, 257; 1 Kent, on Poss. 703; 2 Coke’s Just 703; 7 Barn. *&*Cress. 14; 15 Johns. 782; 10 Wend. *193*— Branch *Bank of S. C., at Georgetown*vs. *The Town of*Georgetown, Bay’s MSS. Rep. 693, 6 Term. Rep.

M’Crady, contra : Said that the land was exempt from taxation, under the City Ordinance. He denied the right of the City Council to tax the lands. We must look to the will of the State, creating the power. He cited in support — 3 Brev. 226. Inhabitants, Mr. M’Crady said, were not a corporation — 4 Burr, 2039; 4 Stat at Large, 53. *Id.*530. 5 *Id.*50; Ord. Jan’y. 1790, 5 vol. *Id.*p. 142, 6 sec. 143; Act 93, 5 Id; Act 1815, p. 8 — 6 vol 2 sec; 11 Seageant *&*Rawls, 394; 8 John. 390.