Hill v. Council of Abbeville

1. License Taxes — Cities and Towns — General Assembly. — Constitution authorizes General Assembly to provide for license or privilege taxes, and municipalities are allowed to graduate the same. 2. Ibid. — The City of Abbeville, under its charter, the Constitution of 1895, and acts of 1896 (22 St., 67), and 1897 (22 Stat., 464), has the power to pass an ordinance levying license or privilege taxes on businesses or occupations carried on in the city. 3. Constitution.- — Act of 1897 (22 Stat., 464,) is not unconstitutional, nor repealed by act of 1899 (23 Stat., 70). 4. License Taxes — Cities and Towns. — Sec. 6, art. VIII., Con. of 1895, provides that license or privilege taxes shall be just, but not that they shall be uniform, and hence a municipality may tax some businesses or vocations and not others, and may tax in different ways, but it must tax without discrimination all businesses or vocations of the same class. 5. Ibid. — Dogs.—A City may impose a license tax for the privilege of keeping a dog. 6. The Constitution and acts of General Assembly authorize cities and towns to levy license taxes under police regulations and for raising revenue.

Before Aldrich, J., Abbeville, November, 1900. Action for injunction by R. M. Hill, in his own right and on-behalf of all others similarly situated and affected, against City Council of Abbeville, on the following amended complaint : “The plaintiff above named, by this, his amended complaint, complaining on behalf of himself and all others similarly situated and affected by the ordinance herein referred to, alleges: “I. That the defendant, the city council of Abbeville, is a body politic and corporate, and as such can sue and be sued. “II. That the plaintiff is a citizen and taxpayer of the city of Abbeville, in the county and State aforesaid, and is engaged in the business of general merchandizing and buying cotton for Charles E. Johnson & Co., who reside in the city of Raleigh, in the State of North Carolina. “HI. That this action is brought on behalf of this plaintiff, and all others similarly situated and affected by the ordinance hereinafter referred to, who shall in due time come into this action and have themselves made parties, and contribute to the expenses of this suit. “IV. That on the 13th day of June, 1899, the said city council of Abbeville passed and ratified an ordinance, known as the license ordinance, a copy of which is hereto attached as a part of this complaint, and marked exhibit A. “V. That said ordinance undertakes to impose upon this plaintiff and other business men of Abbeville a direct license tax, which, under the charter of the city of Abbeville, they have no right to do, said charter only providing in section 8 for imposing a license upon certain occupations therein named, and making no provision for imposing a license upon this plaintiff, or upon any other business or occupation, other than those named in section 8 of said charter. “VI. That said license ordinance is illegal, oppressive, and absolutely null and void, and is unconstitutional, in that it is levied for the sole purpose of raising revenue to- meet the current expenses of the city, as said ordinance so declares, and it imposes a tax upon certain citizens of the city of Abbeville which is not uniform, either in respect to persons or property, said ordinance putting a tax of $10 upon this plaintiff as a cotton buyer, and at the same time exempting cotton buyers who are buying for local mills; also putting a tax of $10 on all cotton seed buyers, except for local mills, which are exempt; putting a tax of $10 upon druggists and undertakers, and allowing other merchants to do business by paying $1 upon the first $1,000 worth of goods sold, and fifty cents upon each subsequent $1,000 worth sold; putting a tax of $5 upon lawyers whose income is not over $1,000, and: a tax of $7.50 upon those lawyers whose income is over one and less than $2,000; putting a tax of $50 upon each bank, when their capital stock only amounts tu about $75,000 each, and only charging..the Abbeville Cotton Mill $75, when their capital is $500,000;, putting a tax of $1 upon all dogs, irrespective of their value;, taxing livery stables running hacks $35, without hacks $25 ; putting a tax of $2.50 upon a boarding house with two boarders, and $5 upon one having more than two boarders; and in many other ways too numerous to mention, making discriminations both as to persons -and property, and putting on said tax in utter disregard of -sec. 6, of art. VIII.,- of the .Constitution -of this State, which provides that municipal corporations shall be vested with power to- assess and collect taxes for corporate purposes,, said taxes to be uniform in respect to persons and property within the jurisdiction qf the body composing the same; which -want of uniformity will more fully appear by reference to -said ordinance, a copy of. which is hereto attached, as above stated, marked exhibit A. “VII. That said ordinance is also illegal, null .and- void, b. so far as it -seeks to impose a license tax upon a person buying cotton for non-residents -of this • State, and upon cotton seed buyers for non-residents.of. this,State, and at the same time exempting buyers for local -mills, said, tax being contrary to the interstate commerce law and.to the.Constitution of the United States. ■ . , • “VII. That said license ordinance is also illegal, null and -void, and, contrary to sec. 5, of art.. I., of the Constitution of this State, in that said ordinance, in section-1 of said ordinance, provides: .‘That no person, firm or corporation, shall engage in, prosecute or -carry on any trade, business, occupation Or profession,hereinafter mentioned,- without having first paid a ■ special license tax therefor as follows, to .wit, &c.,’ and-section 4-.of the said ordin-ance provides as-fo-llows : ‘The city council hereby fesei-ves the right to- refuse or revoke any license for any .cause which may seem to it just;’ thus putting it in the power of the city council -of Abbeville to abridge the privileges -of the citizens of said city, and deprive them of their liberty and property without due process -of law, and to deny to any one, that they may see fity theQ equal protection of the laws. “IX. That the city council of Abbeville is operating under a special charter, and only has the rights conferred by said charter, and there has never been any vote or election in said city of Abbeville upon, the .question of surrendering its charter, and becoming incorporated under the general incorporation act of 1896, providing a method by which.'existing municipal corporations may surrender their charters, and take-out new ones. “X. That the said -city council has ordered that the said ordinance-go into effect on'the first-day of October, 1899, and threatens to fine or imprison all persons who do not pay said tax on.or by the first day of November, 1899. . “XI. That the question involved in- this action is one of common and general interest to many persons, and it is impracticable to bring them all before the Court; and,' therefore, this action .is brought in the name of the plaintiff, for his own benefit and for the benefit of all others similarly situated and affected by said ordinance, and in order to avoid 'a multiplicity of suits. “XII. That unless the said-city council of'Abbeville is enjoined from enforcing said illegal ordinance, irreparable injury will be done to this plaintiff, and all others affected by said ordinance, their rights and- immunities as citizens will be abridged, and their property will be taken from them without due process of-law. • ■ “XIIL That the plaintiff -is without adequate remedy unless this honorable- Court enjoins said city council from enforcing said ordinance as they, are threatening to do, said ordinance providing that all classes of persons therein named failing or refusing to pay said tax, shall be fined not less than $2, or more than $100; or be imprisoned not less than two days, nor more than twenty days, for every day such business is carried on without such license, and the law not providing any remedy against a city council for false imprisonment. Wherefore the plaintiff prays judgment that the city council of Abbeville be perpetually enjoined and restrained from attempting to enforce said ordinance, and for such other and further relief as may be just, and proper.” The following is the decree on Circuit: “This action is brought in behalf of this plaintiff, and all others similarly situated and affected by the ordinance hereinafter referred to, who shall in due time come into this action and have themselves made parties, and contribute to the expense of this suit. The judgment demanded is that the city council of Abbeville be perpetually enjoined and restrained from attempting to enforce the ordinance referred to, and such other relief as may be proper. • The amended complaint was served upon defendant on October 16th, 1899. The summons and original complaint were not read at the hearing herein, and were not submitted to me with the record in the cause. I cannot, therefore, state the date of the original complaint, when it was filed, or when it was served upon defendant. I find' an order of his Honor, Judge Ernest Gary, as presiding Judge, dated October 5th, 1899, which enjoins and restrains the defendant from enforcing said ordinance against the plaintiff ‘until the hearing of this case upon its merits.’ The answer of the defendant is dated November 7th, 1899. A number of persons were, by order of Court, permitted to come into this action as plaintiffs, and the restraining order, above stated, was extended so as to include them. On the 13th day of June, 1899, the defendant, the city council of Abbeville, passed and ratified an ordinance, known as the ‘License Ordinance.’ The preamble, or beginning, of said ordinance is as follows : ‘Por the purpose of meeting in part the current expenses of the city government of the city of Abbeville, S. C., for the fiscal year commencing January 1, 1900, and to meet in part such other indebtedness of the city of Abbeville, S. C., as may become due in said fiscal year. Therefore, be it ordained .by the city council of Abbeville, S. C., and by authority of the sameSection I. That no person, firm or corporation shall engage in, prosecute or carry on any trade, business, occupation or profession hereinafter mentioned, without having first paid a special license tax therefor as follows, to wit: Agents, for enlarging pictures $i per day, per month $10.’. Then follows, in alphabetical order, a list pf one hundred and fifteen or twenty kinds of trade, business, occupation or professions, and the amount of the tax upon each. The plaintiff alleges that he ‘is engaged in the business of general merchandising and buying cotton for Charles E- Johnson & Co., who reside in the city of Raleigh, in the State of North Carolina.’ The provisions of the ordinance in reference to merchants and cotton buyers are: ‘Merchants shall pay license according to the following schedule of gross sales and prices upon sworn returns: sales amounting to $1,000 or under, the sum of $i; on each additional $1,000 of sales or fractional part thereof, the sum of fifty cents. Cotton buyer, except for local mills, $io.’ Returning to the ordinance. ‘Section 2. Any person or persons carrying on or prosecuting any business or occupation, oi running any establishment named in this or preceding sections, without first having taken out a license therefor, shall be fined (except in cases where special penalties are imposed) not less than $2 nor more than $ioo, or be imprisoned not less than two days nor more than twenty days, for each and every day such business is carried on without such license. That no license shall be used for a less period than one year (unless otherwise specified), dated from the first day of the month in which the same is issued, and it shall be the duty of the clerk of council to see that licenses and fees are imposed and paid, and to promptly report any and all'cases of failure to do so. Section 3. That for any business, occupation or profession not enumerated in the foregoing section, the license shall be regulated and imposed by the city council at any meeting of the same. Section 4. The city council hereby reserves the right to refuse or revoke any license for any cause which may seem to it just.’ Section 5 refers to- ‘false or fraudulent returns/ necessary or required by the ordinance, and the punishment therefor. ‘Section 6. That any person, firm or corporation carrying on or prosecuting any trade, business, occupation or profession, or running any establishment named in this ordinance, or upon which a license may hereafter be imposed by the city council, without first having taken out á license therefor, shall be fined (except in cases where special penalties are imposed) not less than $2 nor more than $100, or be imprisoned not less than two days nor more than thirty days in the county or city prison, for each and every day such business, occupation or profession is carried on without such license. Section 7. That this ordinance shall go into effect on the first day of October, 1899, and all persons, firms, coi> porations or professions, not conforming to its requirements shall be liable to the penalties herein imposed from and after said last mentioned date.’ Plaintiff, in paragraph 5 of his complaint, alleges: ‘That said ordinance undertakes to impose upon this plaintiff and. other business men of Abbeville a direct license tax, which, under the charter of the city-of Abbeville, they have no right to-do, said Charter only providing in section 8 for imposing a license upon certain occupations therein named, and making no provision for imposing a license upon this plaintiff, or upon any other business or occupation, other than those named in section 8 of said charter.’ The charter of the city of Abbeville is contained in ‘An act to incorporate the city of Abbeville,’ approved January 5th, 1895, see Stat. of S. C., vol. 21, p. 1134. Sec. 8 of said act or charter reads: ‘Section 8. That the said city council may grant or refuse licenses to keepers of livery stables, drivers of public drays, hacks and vehicles kept for hire, butchers, auctioneers, peddlers, itinerant tradesmen, keepers of billiard tables, ten-pin alleys, -or any -other kind of game, exhibitions of skill or chance within said corporation; and the said city council may impose a license fee on any of the said occupants, and also on any person who keeps a store, shop, office or other place of 'business and car- ■ ries on his trade, profession or business in said city, but resides and holds his property beyond the limits of said city, thus escaping his or her just share of the burdens of the city government; and said city council may enforce the collection of said license fees, which shall be turned into the city treasury.’ The plaintiff alleges that he is a merchant and cotton buyer, residing, in the city of Abbeville. A number of the parties who have intervened in this action and are now plaintiffs herein, are not engaged in any business men-in said sec. 8, nor are they included in the provisions thereof. If this was the only law upon this subject, it is plain that the city council of Abbeville could not impose a license fee or tax upon persons other than those enumerated in said section, or upon occupations or kinds of business not therein specified; for ‘a municipal corporation in this State, can only exercise power with which it is clothed by our General Assembly,’ Mauldin v. City Council, 42 S. C., 298; State v. Maysville, 12 S. C., 76. The Constitution of this State, adopted in 1895, contains a number of provisions-not found in the Constitution of 1868. The Constitution of 1868 contained no provisions in reference to license fees or taxes, such as are found in the Constitution of 1895. Yet, under the Constitution of 1868, the Supreme Court repeatedly held that the power to raise revenue by a license tax on business, given by statute to city council, violates no provision of said Constitution. The Supreme Court, in Information v. Oliver, 21 S. C.,'325, said: ‘We think that it would result in no good to reopen the argument and renew the .discussion. It concerns the interests of all that the law and its interpretation should be settled.’ This language was cited, with approval, in Information v. lager, 29 S. C., 443. If such was the law under the Constitution of 1868, it must be the law now, because the Constitution of 1895 has numerous provisions which afford additional supports for the cases referred to. Indeed, after reading the decisions upon this subject, and the provisions of the Constitution of 1895, we are impressed with the idea that the framers of the Constitution of '1895 prepared several of the provisions of that instrument with reference to said decisions, and intended to incorporate in the new Constitution the law as declared by the Courts. I shall call attention to two provisions of the Constitution of 1895. In the last proviso, in sec. 1, of art. X., entitled ‘Finance and Taxation,’ we find, ‘the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business.’ This is an unequivocal grant of power to the General Assembly, giving to that body a power which, under the Constitution of 1868, had been questioned. Sec. 6, of art. VIII., Con. of 1895, entitled ‘Municipal corporations and police regulations,’ provides: ‘The corporate authorities of cities and towns in this State shall be vested with power to assess and collect taxes for corporate purposes. * * * License or privileged taxes imposed shall be graduated so as to secure a just imposition of such tax upon the classes subject ■thereto.’ It will 'be noted that the ‘License or privileged taxes’ are to be imposed with reference to ‘the classes subject thereto.’ Paragraph first, sec. 11, art. XVII., "of the Con. of 1895, provides : ‘That all laws in force in this State, at the time of the adoption of this Constitution, not inconsistent therewith and constitutional when enacted, shall remain in full force until altered or repealed by the General Assembly or expire by their own limitation.’ In Mauldin v. City Council, 42 S. C., p. 299, it is said, in the opinion of Mr. Justice Pope, that ‘the power of taxation may be given a municipal corporation, but such power when exercised by such municipal corporation must not only be exercised according to the charter thereof; but also within the limits of the Constitution of the State.’ This language was used in reference to the Constitution of 1868; but, assuming that it is applicable to this case under the Constitution of 1895, let us see if the city council of Abbeville has the power to impose license fees and taxes, and whether or not its ordinance is in conformity to law. Sec. I, art. VIII., Constitution of 1895, is as follows: ‘The General Assembly shall provide by general laws for the organization and classification of. municipal corporations. The powers of each class shall be defined so that no such corporations shall have any power or be subject to any restrictions other .than all corporations of the same class. Cities and towns now existing under special charters may reorganize under the general laws of the State, and when so reorganized their special charters shall cease and determine/ In accordance with the above stated provision of the Constitution, the General Assembly of this State, on March 5th, 1896, passed an act, entitled ‘An act to provide for the incorporation of towns of not less than one thousand nor more than five thousand inhabitants/ XXII., Stat., p. 67. This act, in ^ec. 1, provides, ‘That citizens of any proposed town of this State * * * desiring to be incorporated shall present to the secretary of State, &c.,’ a petition. This refers to a ‘proposed town,’ one not yet in existence. Sec. 25 of this act provides that, ‘Any town * * * already chartered which is desirous of surrendering its charter and accepting incorporation under this act * * * may be incorporated under this act.’ The terms of this section are, manifestly, permissory. Sec. 12 of said act reads, ‘That said council may, and they are hereby, authorized annually to require by ordinance the payment of such reasonable sums of money as a license tax by any person or persons, corporation or corporations, engaged or intending to engage in any calling, business, occupation or profession, in whole or in part, within the limits of said town, except those engage'd in the calling or profession of teachers or ministers of the gospel. They shall have power to collect license or taxes from .all persons representing publicly within the limits of said town, for gain or reward, any plays or shows of whatever nature or kind soever; and said town council are hereby authorized and empowered to pass such ordinances as are necessary to give full force and effect to this section, and to punish delinquents thereunder.’ It was admitted upon the argument that the city of Abbeville has more than 1,000 and less than 5,000 inhabitants. On March 25, 1897, the General Assembly passed ‘an act relating to 'the powers of certain corporations’ (22 -Stat., p. 464), as follows: ‘Section 1. That all municipal corporations of this State having a population of not less than 1,000 inhabitants and not more than 5,000 inhabitants are hereby endowed with the power enumerated in an act of the General Assembly, approved 5th March, 1896, and numbered 36, &c. Section 2. That the powers hereby conferred are in addition to those already enjoyed by the said municipal corporations under their respective charters.’ Aot No. 36, 22 Stat., p. 67, and ‘approved 5th March, 1896,’ is the act hereinbefore referred to, and is entitled ‘an act to provide for the incorporation of towns of not less than one thousand inhabitants.’ I think, and so hold, the words, ‘That all municipal corporations of this State,’ as used in sec. 1 of the ‘act relating to the power of certain corporations,’ refers to and includes municipal corporations existing under special charters, as well as those incorporated under the general act of 1896, supra. The construction, if the plain and unambiguous words of sec. 1 need construction, is supported and sustained by sec. 2, which declares ‘that the powers hereby (in sec. 1) conferred are in addition to those already enjoyed * * * under their respective Charters.’ The word ‘charters’ is plural. Under the general law there is but one ‘charter’ or form of ‘charter,’ and we must assume that the act refers to all charters coming within the terms of the act. This view finds further and conclusive support in the word ‘respective.’ It would be without force or effect if the act is construed to refer only to charters under the act of 1896. The act of 1897 ‘endowed’ the city council of Abbeville ‘with the powers’ enumerated in the act of 1896, numbered 36; including sec. 12, which authorizes said council to impose certain license taxes. I have heretofore cited said sec. 12 in full. The act of 1897, entitled ‘an act relating to the 'powers of certain corporations,’ was amended by ‘an act to amend an act entitled an act relating to the powers of certain corporations,’ approved 2d day of March, 1899. See acts of 1899, p. 53. This act was approved March 3d, 1899. It amends the act of 1897 by striking out ‘five’ and inserting ‘ten,’ making the maximum number of inhabitants 10,000 instead of 5,000. By an act of the General Assembly, approved March 2d, 1899, and entitled ‘an act to provide a general law for the amendment of town and city charters’ (act of 1899, p. 70), it is provided: ‘That on and after the approval of this act, the charter or articles of incorporation of any city or town in this State, whether such city or town was originally incorporated by act of the General Assembly or under the general law by the secretary of State, may be amended in any particular, not-inconsistent with the Constitution and laws of the State, in the following manner.’ The ‘manner’ is then stated, viz: by petition, vote, &c. Section 2 of this act repeals all acts and parts of acts inconsistent with this act. “The act just cited cannot affect the city council of Abbe-ville, and, inter alia, for the following reasons: The act is prospective. It has no effect upon past charters, unless those charters were amended after its passage. It is permissive and directory when called into use. It does not purport to repeal any existing charter or amendment thereof.. The charter of the city of Abbeville was, as we have seen, approved in 1895, and amended in 1897. The city council of Abbeville are not trying to have the charter of the city amended, the council is trying to enforce charter powers given to the city before the passage of the act of 1899. It is contended that the act of 1896, entitled ‘an act to provide for the incorporation of towns of not less than 1,000 nor more than 5,000 inhabitants,’ and the act of 1897, entitled ‘an act relating to the powers of certain corporations,’ are unconstitutional, in that they relate to more than one subject not enumerated or expressed in their titles. I do not see any objection to the former act. The objection to the act of 1897 is that it legislated as to two subjects:' the one being' as to charters for towns of not less than 1,000 and more than 5,000 inhabitants; and the other being charters for towns of not less than 200 and not more than 1,000 inhibatants; and, also, in that it seeks to amend charters generally. Art. III., sec. 17, of the Constitution of 1895, is as follows: ‘Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.’ The same provision is contained in the Constitution of 1868. See art. II., sec, 20. The Court has construed this section ‘As we have said in Charleston v. Oliver (16 S. C., 56), upon the authority of Mr. Justice Cooley, “there has been, and ought to be, a general disposition to give a liberal construction to constitutional provisions like this now under consideration, rather than to embarrass legislation' by an unnecessary strictness of construction.” Hence, when a' question, under this clause of the Constitution, is presented for adjudication, we are bound to take a liberal and enlarged view, and if practicable bring the legislation which is assailed as unconstitutional within the limits prescribed by the supreme law of the land.’ This case is cited with approval in State v. Chester, 39 S. C., p. 327, where the authorities are collated. In Ex parte Bacot, 36 S. C.,' 135, it was held that an act entitled ‘an act to provide for the formation of certain corporations under general laws,’ was not subject to the objection herein presented. The Court says: ‘In the very nature various matters were to be considered under it, somewhat like an appropriation act, with a general title covering many particulars. The “subject” was the formation of certain corporations, aiid it would seem that the right to form corporations would include the power to be given to such corporations. How else could they be formed ?’ The ‘subject’ of the act of 1897, supra, was the regulating of the powers of certain corporations, and it would seem that the right to regulate the powers of corporations would include the powers to be given to such ■ corporations. Art. III., sec. 34, of the Constitution is as follows: ‘The General Assembly of this State shall not enact local or special laws concerning any of the following subjects, or for any of the following purposes, to wit: * * * III. To incorporate cities, towns or villages, or change, amend or ■ extend the charter thereof. * * * XII. The General Assembly shall forthwith enact general laws concerning said subjects for said purposes, which shall be uniform in their operations.’ The General Assembly, under these provisions, could only amend the charter -of Abbeville by a general law, and that is the nature of the act of 1897. The body of the act refers to municipal corporations and nothing else; therefore, it relates to but one subject. The argument of counsel is based upon the idea, that inasmuch as the act refers to two former acts, it -must refer to two subjects. This deduction is neither logical nor sound. The requirement of the Constitution that an act shall relate to but one subject, is complied with when the act relates to a part of a subject. .It is not necessary, nor is it usual, 'for an act to exhaust a subject. If several acts relate to several phases of the same'subject, the General Assembly may legislate, in one act, upon several of said phases' in a subsequent act. I hold that the General Assembly can, by an amendatory act, amend several acts, by proper reference thereto, provided all of the acts relate to the same subject. I. think that the act of 1897 ‘expresses’ in its title, the subject of the act. In addition to the-authorities cited, I would also refer to-Endlich on S-tat., ed. 1888, sec. 524, p. 740. People v. Mahony, 13 Mich., 481: “It is alleged in paragraph 6 of the complaint that the ordinance in question was passed ‘in utter disregard of sec. 6, of art. VIII., of the Constitution, which provides that municipal corporations shall be vested with powers to assess and collect taxes to be uniform in respect to persons and property within the jurisdiction of the body composing the same.’ The' ‘want of uniformity’ consists in alleged ‘discriminations as to persons and property.’ I will refer to this allegation further on, when considering the alleged ‘discriminations,’ but in passing, will say that the complaint cites only a part of said section, and omits an entire and important- sentence, containing the fundamental law- upon the subject of ‘license or privileged taxes.’ Art. VIII., sec. 6, is as follows: ‘The corporate authorities of cities and towns in this State shall be vested with power to assess and collect taxes for corporate purposes, said taxes to be uniform in respect to persons and.property within the jurisdiction of the body composing the same, and all the property, except such as is exempt by law, within the limits of cities and towns, shall be taxed for the- payment -of debts contracted under authority of law. License or privileged taxes imposed shall be graduated so as to secure a just imposition of such tax upon the classes subject thereto.’ c It is the duty of the Court'to construe, not make, the Constitution. That instrument authorizes municipal corporations to impose two kinds of taxes: ist. A general or ordinary tax. 2d. License or privileged, taxes. We must give force and effect to its provisions. A license or privilege tax has long been in use in this State. ‘Strictly speaking, a license of a trade or calling by a municipal corporation is referable to the police power possessed by such bodies, and implies autbority to prohibit the exercise of such business, except upon conditions having reference to-some end of police regulation. In its simplest form of exercise, as when employed solely for the purpose of regulating avocations of a class tending to disturb public order, health -or- morality,' it is a power totally distinct from that of imposing taxes for the purpose of raising revenue. It has, however, been long employed for the purpose of imposing on a class of avocations to which the exercise -of that power particularly relates, embracing places of public entertainment and amusement, taxation for the purpose of revenue of an extraordinary character, based upon the idea that avocations of that class should contribute specially to the support of the government in excess of the burdens borne by the productive industries. In this way it becomes -one of the customary modes of raising revenue. The extension of this mode of raising revenue beyond the sphere of avocations to which the power of police regulation properly related, where circumstances of a peculiar nature rendered it requisite that each particular avocation should have its own rate of taxation, was natural where taxation had divided itself into two methods, the one embracing those subjects of taxation that are capable of being reached by means of an uniform rate, and the other such as could be treated in no other way than by subdivision into two distinct classes, and imposing a separate rate on each of such classes. Avocations of the class to which the power of public regulation properly relates, naturally fall within the class or subject of taxation last named, and the license and form of collecting special taxes, have been frequently extended to embrace all subjects of taxation calling for special rates of taxation.’ State v. Columbia, 6 S. C., 6. See, also, Information v. lager, 29 S. C., 438, and other cases cited. I have cited this case, State v. Columbia, supra, as showing the origin and growth of license taxes, for two reasons. As this was the only adjudged law of this State, we must assume that the words ‘license or privileged taxes,’ as used in the Constitution, refer to, and was intended to refer to, licenses and license taxes as they existed at the time of the adoption of the 'Constitution. Not only in the law, but also in its popular meaning, a license tax was well understood. The second reason for the above citation is, that it was suggested and argued that the words of the Constitution might and should be construed as relating to the police powers of municipal corporations, and not for the purpose of’ raising revenue. If there was any doubt upon this subject (and there was none), the Constitution has dissolved that doubt now. I hold that the Constitution authorizes and empowers the imposition of licenses or privileged taxes for the purpose of raising revenue, and that, so far as the section under consideration is concerned, the police' powers of municipal corporations are in no wise changed. The ordinance in question provides : ‘Banks $50; cotton factory $75.’ The complaint alleges that the ordinance ‘is illegal, oppressive and absolutely null and void, and is unconstitutional, in that- it .is levied for the sole purpose of. raising revenue to meet the current expenses of the city, as said.ordinance so declares, and it imposes a tax' upon .certain citizens of the city of Abbeville, which is not uniform- either in respect to person or property, said ordinance putting a tax of $50-upon each bank, when their total capital only amounts to about $75,000 each, and only charging' the Abbeville Cotton Mill $75, -when their capital is $500,000.’ Passing by the-allegations as to the unconstitutionality of the ordinance, as set: forth in the above quotation, and which have already been discussed, we will consider the allegations alleging illegal discrimination, as illustrated by the bank and the cotton-mill. The underlying error in the complaint, and tihe arguments ir, support of its allegations, is in assuming that the requirement in the first sentence of art. VIII., sec. 6, viz : ‘said taxes to be uniform in respect to persons and property,’ apply to the last sentence in said section, in reference to licenses. If such were the fact, why did not the framers of the Constitution so declare? It would have been the most natural and easiest provision to have incorporated ‘license or- privilege taxes’ in the first sentence, and have left it subject to the requirements of said sentence. But the framers'of the Constitution not only did not do so, but also took further, different and affirmative action in regard to licenses, as manifested in the plain language of the last sentence of said section. “When it is suggested and argued that the ‘license or privileged taxes’ should be graduated according to the value of a plant, the income or the value of the product and sales, the answer is, the Constitution does not so provide. Bet us construe the word ‘classes’ in the last line of said sec. 6. We might speculate as to the meaning of this word, because, standing alone, it might be properly construed as referring to persons or property, one or both. Taking into view the Constitution and statutes of our State, as construed by our Courts and as shown by the practice in this State, I think that the legislation now in force is a reasonable and practical construction of the word ‘classes.’ The Constitution permits the General Assembly to empower cities and towns to impose license or privilege taxes upon ‘classes,’ but when a class is ‘subject thereto,’ the tax must be graduated, &c. In sec. 12 of the ‘act to provide for the incorporation of towns, &c.,’ 22 Stat., p. 71, it is provided that the city council may ‘require by ordinance the payment’ of a license or privilege tax ‘by any person or persons, corporation or corporations, engaged or intending to engage in any calling, business, occupation or profession.’ The ‘classes,’ therefore, must be composed of persons or corporations engaged or intending to engage ‘in any calling, business, occupation or profession.’ A member of a class, as used here, may be thus defined: 1st, a person or corporation; 2d, a calling, &c., and 3d, that person or corporation engaging in that calling, &c. " There can be no doubt that a cotton mill and a bank belong to different classes or, certainly, that the council had the power to put them in different classes. Is the ‘discrimination’ between the mill and bank oppressive? That is a mere allegation of the complaint, denied by the answer, and supported by no evidence. The city council is authorized and empowered to determine such matter. In the absence of proof-to the contrary, I must assume that the city council so graduated these license taxes as to secure a just imposition of such taxes upon the mill and the bank. It is not for the plaintiff, or any one of those who have come into this action, to decide such an issue. In view of the many acts and ordinances in this State permitting and regulating license taxes, the amounts charged in the ordinance in question seems neither oppressive nor illegal. The council in ‘graduating’ these taxes ‘so as to secure a just imposition of such tax upon 'the classes subject thereto,’ may, and I assume did, take into consideration, the calling, business, &c., the character of such calling, the value of same, and everything connected therewith. Again, and while upon the subject of ‘classes,’ I will refer to the provisions thereof in reference to merchants. It reads : ‘Merchants shall pay. license according to the following schedule of gross sales and prices upon sworn returns: sales amounting to $1,000 or under, the sum of $i; on each additional $1,000 of sales or fractional part thereof, the sum of fifty cents.’ This provision has long been in use in this State. I think and so hold that this provision is constitutional. . The objection that the requirement as to ‘sworn returns’ is illegal, because inquisitorial, and calculated to expose one’s business, is wanting in support. The rule is, all 'taxpayers .swear to their returns of taxable property, and in this instance, the merchants are required to do what other taxpayers do. The law lias, wisely and necessarily, left much to the legal discretion of town and city councils. There are poor and rich merchants, it might and would be .unjust to charge each the same privilege tax; therefore, the license is a ‘just imposition’ when each merchant is called upon to pay according to the amount of his ‘gross sales and prices.’ If there is, or can be, any objection to this method of licensing merchants, it is easy to place another construction upon this provision which makes it legal and valid. Merchant is a general name. There are many kinds of merchants, grocers, dry goods, &c. One or more classes of merchants, dealing in one commodity, might be put into one class; while other merchants, dealing in other commodities, might be put in another class. This might be the only way in- which -the tax imposed on each class could be graduated -so as to secure a just imposition of such tax upon each of said classes. This would be legal. So, in securing a just imposition of a license tax, it may be necessary to subdivide persons engaged in one calling into classes, and'tax each included in such subdivision so much. These subdivisions, so called 'here merely for the purpose of illustration, would, under the law, be each -a class. We must have regard to the substance, and not the form of-the ordinance. It really makes classes o-f such .merchants according to their sales. I do not mean to hold, that the same merchant could be taxed -double, or twice, upon the same calling or business. For instance, a druggist is a merchant; but he could not be taxed upon his gross sales first as a merchant and then, as a druggist. That would be illegal. Again, there are ‘classes’ upon which a graduated tax, according to incomes or gross sales, or moneys collected, cannot be imposed. The ‘.calling, business, occupation or profession’ of such classes may be of such nature as to preclude such a method or system. In such cases, I think that the city council had the legal right, in their legal discretion, to impose a fixed tax upon each member of each of such classes, and make each of such members pay a tax similar in amount and in other respects. “Paragraph VIII. of complaint alleges: ‘That said license ordinance is also illegal, null and void, and contrary to sec. 5. of art. I., of the Constitution of this State, in that said ordinance, in section i of said ordinance, provides, “That no person, firm or corporation shall engage in, prosecute or carry on any trade, business, occupation or profession hereinafter mentioned, without having first paid a special license tax therefor, as follows: to wit, &c.,” and section 4 of said ordinance provides as follows: “The city council hereby reserved the right to refuse or revoke any license for any cause which may seem to it just,” thus putting it in the power of the city council of Abbeville to abridge the privileges of the citizens of said city, and deprive them of their liberty and property without due process of law, and to deny to any one that they may see fit the equal protection of the laws.’ I think that section is, as alleged, invalid and illegal. The city council legislate by way of ordinance, and can only ordain such ordinances as the law permits them to make. There is no law authorizing said council ‘to revoke any license for any cause which may seem to it just.’ There may 'be causes, legal causes, for which council might revoke a license; but certainly ‘any cause’ which in its opinion, irrespective of law, may seem to it ‘just,’ is beyond the limits of its power, and, therefore, without warrant of law. But this is a speculative question. Council has not ‘refused’ or ‘revoked’ any .license, for any cause ‘which seemed to it to be just.’ It will be time enough to consider such refusal or revocation when that issue is presented. Again, this sec.' 4 may be stricken out, -and it -would not destroy the entire ordinance, nor seriously interfere with the enforcement of said ordinance. “The complaint, paragraph X., alleges : ‘That the said city council has ordered that the said ordinance go into effect on the first day of October, 1899, and threatens to fine or imprison all persons who do not pay said tax on or by the first day of November, 1899.’ There is no legal reason why the said city council, under the ordinance in question, should not carry out the ‘threats,’ or the provisions of said ordinance, and ‘fine or imprison’ the persons referred to. I shall not prolong this decree by a full discussion of this question. I think that is settled, and I shall refer to the statutes and a few of the cases upon this subject. The charter of the city of Abbeville, above cited, in sec. 8,. which deals with licenses, provides: ‘and the said city council may enforce the collection of said license fees, which shall.be turned into the city treasury.’ The act of 1896, to provide for the formation of towns, &c., in sec. 12 (22 Stat, p. 71), authorizing council to • impose certain license taxes, is as follows: ‘and said town council are hereby authorized and.empowered to pass such ordinances as are necessary to .give full force and effect to this ' section, and to punish -delinquents thereunder.’ There may be other statutory or constitutional law to the same effect; 'but I shall refer to no other. See, also, State v. Hayne, 4 S. C., 403; Information v. lager, 29 S. C., 438; Charleston v. Oliver, 16 S. C., 47; Information v. Oliver, 21 S. C., 319. The charter -of Abbeville and the act for the formation of towns, &c., authorize and empower the council ,to ordain the penalties and punishments prescribed in the ordinance. “Before taking up such of the allegations of plaintiffs as is- necessary, let us glance at the law. ‘A license tax cannot be deemed -unequal because it reaches one occupation only, -if it reaches all who follow that occupation.’ State v. Har~ rington, 34 Law Rep. Ann., ioo; F% parte Williams, 21 L. R. A., 783; Banta v. Chicago, 40 L. R. A., 611; Haskel’s Case, 32 L. R. A., 527 and 529. ‘Imposing on laundrymen the payment of a license fee of $15 for a steam laundry, $10 for every male person in the business other than that of a steam laundry, and $23 for a male laundryman employing one or more other persons, does not grant a monopoly or have a prohibition effect.’ State v. French, 30 L. R. A., 415. The brief to this case is full and instructive. Vol. 13, Ency. of L., 314, et seq., and notes. “The plaintiff is a resident of the city of Abbeville,, and engaged in two callings or kinds of business. He is a merchant and a cotton buyer, but he alleges that he buys cotton for C. E. Johnson & Co., of the State of North Carolina. The same man or corporation may engage in two separate and distinct callings, occupations or kinds of business. If so, he or it must take out the proper license for such, and pay the proper taxes therefor. Plaintiff is entitled to no relief, so far as pertains to his being a merchant, and being required to take out and pay for a license to carry on that business. The license required of plaintiff as a cotton buyer depends' upon the ordinance. ' It is as follows: ‘Cotton buyer except for local mills, $10.’ I think that this provision is illegal. Excepting buyers for local mills renders the provision void. A buyer of cotton for local mills is not entitled to exemption. Excepting the buyers for local mills is not graduating the tax, it frees him from the payment thereof, and, consequently, the tax does not apply to all persons of that class equally. This provision is illegal. “After the service of the original complaint, but before the service of the amended complaint, and the answer thereto, the defendant, the city council, by an ordinance, duly amended the ordinance mentioned and alleged in the complaint. Among said amendments -the following appears : ‘In lieu of “cotton buyers except for local mills,” the wrords “except for local mills” are hereby stricken out,’ so that the ordinance as amended reads, ‘Cotton buyer, $10.’ It' 'was argued that the answer could not set up the said amended ordinance to the allegations of the complaint, because the ordinance was amended after the service of the summons and original complaint. Defendant contends that it can plead the amended ordinance because it was amended prior to the service of the amended complaint, and before defendant had answered. It will be noted, that this is not the case'of amending an answer; because -the original answer pleads the amended ordinance. I shall consider the amended ordinance as 'before the Court, and for the following, among other reasons : The complaint seeks to enjoin the defendant from the collection of license taxes, and also from imposing fines or inflicting punishment upon plaintiffs for failure to comply with the provisions of the ordinance. The complaint deals, therefore, with defendant’s jurisdiction in criminal matters, its power to punish by fine or imprisonment. It is clear that the defendant could not punish plaintiff under an ordinance repealed at the time of the trial. State v. Carter, 28 S. C., 1. The amended ordinance took the place of the old. As held, the original ordinance was illegal, and there was no legal ordinance in this particular until the amended ordinance was adopted. So that, now, it is a purely speculative question as to- the original ordinance. It does not now exist, whether its non-existence is due to the inherent illegality or because it is repealed, is a matter of no consequence. Plaintiff is in no danger from the original ordinance; but I will enjoin the enforcement of this particular provision therein. I do not mean, however, to enjoin the enforcement of the amended ordinance; because, except as pleaded in the answer, it is not before me for adjudication. The construction upon that ordinance is not involved'in this action. “Among the parties who have been made plaintiffs in this action, under the order of the Court, are a number of lawyers. They allege that they are taxpayers and residents of the city of Abbeville, and that ‘they are discriminated against in the ordinance imposing said license tax.’ * * * ‘That the tax imposed upon attorneys at law is a license of $5 on some attorneys, and $7.50 on others.’ The provisions of the ordinance in reference to lawyers are, ‘Lawyer, whose income does not exceed $1,000, each $5.’ ‘Lawyer, whose income is from $1,000 to $2,000, each $7.50.’ These words were, by the amendatory ordinance above referred to, stricken out, and the words, ‘Lawyers, each $5,’ inserted in lieu thereof. I need not repeat what I have said in reference to this amendatory ordinance or the effect thereof. But, in passing, it may be well to say, that I can see no infirmity in the ordinance as it originally stood. If merchants be classified according to the amounts of business done by them, why should not the same rule be applied to lawyers ? The principle is the same, and t)he facts analogous. But the classification is a matter left to the legal discretion of the city council. It could put all lawyers into one class, or could divide them into two classes, and, in either instance, the presumption would be that the action was legal. However, as the original ordinance, by act of council, has ceased to be of force, I will enjoin any attempt to enforce said original provision, and, as said, leave the amended ordinance alone. . “A. M. Hill & Sons came in as plaintiffs. Their alleged grievance is that they ‘Are required to pay as livery stable keepers, and are required to pay a further tax on their hacks, which are simply a part of their livery business, while this tax is not put on other persons running a livery business.’ The ordinance provides for: ‘Street hack or carriage, $5; street wagon or dray, two horse, $5; street wagon or dray, one horse, $2.50; stable, livery, sale and feed and running hacks and drays, $35; stable, livery, sale and feed, $25.’ As to the allegation that the tax imposed upon Hill & Sons ‘Is not imposed on other persons running a livery business,’ it is denied by the answer, and there is no proof in support thereof, except such, if any, as appears upon the face of the ordinance. I can see no illegality in the provisions above cited. They are all in favor of the citizen. If a man wants to run a ‘street hack,’ or a ‘street wagon,’ or a ‘street dray,’ and not run a livery stable, he can do so; because such hacks, carriages, wagons and drays are each put in a separate class, and a certain tax provided for each. If another man wishes to run a ‘stable, livery, sale and feed,’ and not run hacks and drays, he can do so; because he is included in a class established 'by the ordinance. If a third man wants to engage in all of these occupations, he can do so; because this ordinance establishes one general class authorizing him to do so; but for this he must pay a higher license tax. “As to the plaintiff, J. L. Simpson, it is alleged in the answer, and was admitted at this argument, that he was summoned before the city council to show cause why he had not paid a license tax under the provision of the ordinance, ‘Agents, sewing machines, $15,’ and his case was dismissed upon his own statement that he is not doing business as a sewing machine agent in the city of Abbeville. He, therefore, has no standing in the case. But as the parties wish to test this ordinance, I hold a sewing machine agent may be legally put in a separate class by the citv council, and that ‘other agents for retailing goods only,’ for example, ‘agent for merchant tailor, manufacturer,’ may be put into another class by the city council, and a different tax imposed on each. I do not nielli to say that council could abuse their power in this or any other respect. I am speaking of the legal discretion of council, and I must assume, as there is nothing to rebut that presumption, that council acted with legal discretion in the premises. “J. W. McKee and E. H. Richey attack the ordinance because they allege that they are charged a license tax for selling meat in the city of Abbeville, although they are farmers and stock raisers and do not reside in the city of Abbeville, and have a right to sell their products in said city. Of course, the city council could not, by ordinance or otherwise, violate the provision of the ‘act to amend the charters of cities and towns in regard to the sale of meat,’ approved February 7th, 1896, see 22 Stat., pp. 91, and City Council v. Roberts, 55 'S. C., 374. The words above stated, setting out the grievance .of McKee and Richey, are not sufficient to bring them within the terms of said act. These words are denied in the answer. The burden of proof was upon McKee and Richey, and there is no proof in support of their allegations even as made. It was admitted upon the argument that these parties sold meats not ‘produced or grown’ by them in the city of Abbeville. “J. R. Hill complained that he is charged a tax of $5 as a ‘cotton weigher,’ under the ordinance, ‘and yet’ the city council allows the cotton mill ‘to weigh all the cotton they may choose to weigh without any license whatever.’ This is a very broad and loose allegation. In this matter the return to the rule alleges, ‘There is a license of $5 imposed on all cotton weighers, and the cotton mill is not exempt from tax as a cotton weigher. That this respondent is informed that the cotton mill does not weigh cotton for the public or for compensation, and that the said J. L. Hill weighs a large part of the cotton purchased by the mill.’ All of the pleadings in this case, to wit: ‘amended complaint, petitions to be made parties, returns to said petitions, orders of injunctions, answer, etc., were presented to the Court at the hearing, and submitted with the record. Counsel in their arguments referred to and used these papers, and save in one or two matters, viz: the facts in regard to J. W. McKee and E. H. Richey, as butchers, and possibly one or two other facts not involved, treated these papers as evidence. There was no testimony taken, and the case was heard upon the pleadings and papers. J. L. Hill has no legal cause of complaint, because as I construe the ordinance a ‘cotton weigher,’ in the ordinance, means such an one as weighs for the public or for compensation, and not a person or corporation weighing their own cotton, or cotton purchased for his or their own use. “J. L. Roche’s allegations as to the provisions of the ordinance are as follows: ‘Cotton seed buyers, except for local mills, $10,’ are sustained, for reasons above, and is entitled to an injunction against the enforcement of this provision. “J. A. Dickson’s objections are overruled. See authorities cited. Having a license from State to practice dentistry-does not exempt him from the provisions of the ordinance. “I have already considered the questions of requiring the same person, engaged in two occupations, to pay a license tax for each occupation. “A person who, under the ordinance, is liable to a license tax, cannot legally object to paying same; because a license tax is not imposed upon some other person engaged in a different occupation. The city council is not required to charge every person engaged in any occupation, business, calling or profession a license tax. If I have overlooked any material allegation as alleged by any one of the plaintiffs, it is accidental, due to hurry, and because of the pressure of official duties. I have not, by name, taken up the particular case of each plaintiff; but have grouped their allegations, and then considered all of the real issues in the cause. As I hold that the ordinance, as an entire instrument, is not'void, but that certain provisions thereof are void, it would be improper to pass upon provisions of said ordinance which does not affect any of the plaintiffs, and are not properly before the Court for determination. This case, and the judgment herein, cannot bind persons not parties to the cause, and as to such persons no opinion is expressed. I must confine this judgment to the parties and issues before the Court. “Wherefore, it is ordered, adjudged and decreed, that the defendant, the city council of Abbeville, their agents, officers and servants, be, and hereby are, perpetually enjoined and restrained from enforcing or attempting to enforce the following provisions of the license ordinance herein before referred 'to, to wit: i. ‘Cotton seed buyers, except for local mills, $io.’ 2. ‘Cotton buyers, except for local mills, $io.’ 3. ‘Lawyers,' whose income does not exceed $i,ooo, each $5.’ 4. ‘Lawyers, whose income is from $1,000 to $2,000, each $7.50.’ “It is further ordered, adjudged and decreed, that the summons and complaint herein be, and hereby is, dismissed as to all the plaintiffs, saving and excepting such of the plaintiffs as are affected by the foregoing order and judgment; but as to such plaintiffs coming within the relief adjudged, it is retained; further, that each and all of the restraining orders heretofore granted in this action be, and hereby are, revoked, vacated and discharged, except as-the same are made perpetual by the judgment herein; and it is further ordered, that each of the parties hereto pay his or its own costs and disbursements.” From this decree, the plaintiffs appeal. cite: The act of 1897, p. 464, taken with the act of 1896, p. 67, does not confer, on city of Abbeville pozver to pass this ordinance: 49 S. C., 337; 22 Fed. R., 701. If the city has thereunder such pozver, then it is null and void: Con., art. VIII., sec. 6; art. X., sec. 1. Act of 1897 refers to more than one subject, and is unconstitutional: Acts of 1896, No. 37; 3 Park. Co. Rep., 299; 35 N. Y., 452. It is also contrary to sec. 1, art. VIII., of Con. cites: Has city council of Abbeville the power to enforce license taxes: 21 Stat., 1134; 22 Stat., 464, 67; 23 Stat., 70. Act of 1891 is not unconstitutional, as it does not relate to more than one subject: 13 Mich., 481; 39 S. C., 137; 36 S. C., 135; art. III., sec. 34, Con.; art. VIII., sec. 6. License taxes have long since been in use in this State: 6 S. C., 1; 29 S. C., 438; 21 S. C., 325 ; 40 L- R. A., 611. Has this power been exercised in conformity to the Constitution, and have such taxes been properly graduated: Art. VIII., sec. 6, Con.; 30 L. R. A., 427; 32 L. R. A., 529; 32 Minn., 364; 30 L. R. A., 432; 34 Am. Rep-, 743J 16 Cal., IJ9; 31 Kan., 157; 3° R- R- A., 419; 21 L,. R. A., 415; 40 L. R. A., 617; 34 L. R. A., 100.