Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1876-03-28
CITY CIRCULATION.
THE CITY.
NJ NJ M
Tuesday Evening, March rs, 1879
COTTON WAREHOUSES;.
Recorder Buff Helds That They are
Not Liable for City License.

Recorder Buff Helds That They are
Not Liable for City License.
Quite a number of leading merchants,
among others Hill, Fontaine 4 Co.,
Brooks, Nicely 4 Co., billiard & Coffin.
Porter. Taylor & Co., A. c. Treadwell &
Co., Stewart, Gwynne & Co., Fargason
& Co., NJ. L. Meacham & Co., are pro-
prietors Of cotton warehouses, and upon
these houses the city levied a license
tax, which levy was resisted. The mer-
chants we're arrested and cited to appear
before Recorder Duff on the charge of
keeping warehouses without license.
The case was ably argued by counsel,
and the following able opinion was rem
dered by the Recorder upon an agreed
case:
The above case was submitted as q
test case out Of a number of warrants of
arrest issued against sundry merchants
of the city charged with a violation Of
the city ordinances which assess a privi-
lege tax upon them as owners or keep
ers Of warehouses.
The language of the ordinance under
which the warrants issued is as follows:
Every owner or keeper of a shed,
warehouse, or other place for the storage
of cotton or other articles, for each place
per anLum one hundred dollars. City
Ordinance, art iii. sec. 30, sub-sec. q.
This ordinance l hold to b eillegal and
void, TOR several reasons: First, it is not
authorized by any act Of the Legislature,
neither tie city charter, nor elsewhere.
There is net an act Of the Legislature de-
claring ware houses to fall under the head
of privileges, or requiring the owner or
keeper of them TO take out a license; and
it is we'll settled that municipal corpora
tons can perform no act and exercise
no power not au, 'horized by the act Of
incorporation; that they have, therefore,
no power to create 3 privilege for the
purpose of taxing it, or levy a tax upon
anything that is not %,scognized as q tax
able subject by the Legislature. The
authorities upon this So bject in our own
State and elsewhere, speak but one
voice. (See Mabry VS.. Norver, | Hum
phrey, p. SO; Mayor of Columbia Va,
Guest, III Head, p. Ala; Mayor, ETC., VS..
Althrop, V Coldwell, p. 564; Mayor, etc.
VS.. Thomas, V Coldwell, p. 600; Glass VS.,
White, V Sneed, 478; State VS.. Schiller,
III Heiskell, p. 282; Cooley on Taxation,
p. 387.
The keeping Of a tobacco warehouse
is taxed as a privilege by the Legislature
but no other (Code, p. $50. A, sub section
So, acts l87l-l875). And the fact that
the Legislature designated this particular
kind Of warehouse as subject to taxation.
and no other, implies, according to 8
well-known canon Of construction, tina
all others we're d,,signedly omitted.
The want of the requisite power to
pass this ordinance is, OF course, OF itsel
fatal to its valid ty; but | would alsc
hold it void for unceI' ,inty, even if i
were in the very language Of a legis
lative act. It does not limit the tax tt
public warehouses. or such as are KEEP
for storage of cotton, but includes every
shed, warehouse or other place FOR Ia;
storage of colt on or other articles
Under the phruseoIo-7 it would be al
competent to ley q T. K upon any private
citizen within the city limit who had
shed or other plaf,e in which he kept hi
family supplies as il would be upon {
merchant or cotton factor who kept
warehouse for tile exclusive purpose o
storing cotton Fl " pay. / must there
fore hold the ord nance to be wholly vol
and imperative and discharge the de
PENDANT.
AS to those { asses where public ware
houses are KEEP t as q distinct, speci6,
branch Of busin ess, l reserve any ex
preston Of opir ZION for the present.
The above op inion is quite an impSrt
ant one, as it involves a large amount o
money in license taxes. 1t is under
stood that no appeal Will be taken il
this case by the City Attorney, as bot
he and the Mayor are satisfied as lawyer
that the opinion of Recorder Duff i
sound law and would be sustained by tn
inferior and Supreme Courts.