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Crabtree vs. Green.

in his hands, and that the whole matter was submitted to him for final umpirage, and farther, that he asked Crabtree if he dosired him to re-hear the witnesses, and to this inquiry, he replied that he did not desire it, and that he was satisfied that he should proceed under the written statements of the arbitrators and the other papers submitted. These facts appear by the affidavit of Mr. Champion, the umpire; in reply to which, the affidavit of Crabtree states, that the conversation between himself and the umpire, was. a loose and desultory one, and that he was under the impression that he or his attorney would be summoned to attend at the time and place, when and where the umpire would make his award; and he farther states in his affidavit, that he bad various title deeds to the premises in dispute in his possession, which the umpire ought to have had before him. To these statements of the defendant, the answer is obvious. If the conversation was a loose and desultory one, yet, it was one which he understood—it was notice to him that the arbitrators had disagreed, and that the umpire was called upon to decide. The question was distinctly put, whether he desired the umpire to re-hear the witnesses, and the answer distinctly made, that he did not desire it, but was satisfied that the umpire should proceed to determine, under the written statements submitted by the arbitrators and the other papers in his hands. He had notice, and he waived his right to appear, examine witnesses, and present the title deeds in his possession. What right has be to complain? He took the risk of a decision on the statements of the arbitrators and the other papers submitted. Had he, after this conversation, and before the umpirage was made, demanded a hearing, the case would have been different. Besides, the title deeds to the premises had no relevancy to the matter in dispute. From the supplement to the bill, added by agreement of counsel from the evidence submitted to the arbitrators, and from their written statements, it is clear that the title to the land, awarded to Green, was not in dispute, except so far as it depended on the Statute of Limitations. Hall vs. Lawrence, 4 T. R. 589. 1 Baily, S. C. R. 81, 82. 2 Baily, S. C. R. 113. Kyd on Awards, 101 to 104, and notes. I place this decision, not on the ground that it is not necessary for the umpire to give notice and re-hear the cause, but upon the ground that the party had notice and waived his right. The discussion of the other point (and it is a mooted one) is not necessary to the case, Sec authorities last cited,

Crabtree vs. Green.

and 4 Dall. Penn. R. 232, and 2 Dall. 271. Upon these views, we sustain the Court below on the 6th and 10th exceptions.

The seventh exception was not pressed, and requires no opinion. [8] The eighth secks to convict the Court below of error, be cause he refused to hold that the award should be set aside, because it does not describe the land awarded to the plaintiff, with sufficient certainty. The award describes it as part of the land set forth in the plaintiff's declaration, and in the possession of the defendant, by metes and bounds, by landmarks and contiguous possessions, and a map of it accompanies the award. What more could be done? The description is minute, intelligible, and quite sufficient for identification.

[9.] The ninth and last exception, claims the umpirage bad, because the umpire did not decide upon all the matters submitted. The plaintiff, as before stated, being in possession of two hundred acres, less a small part of it, which was in possession of the defendant, brought ejectment for the whole, and all the matters involved in this suit were submitted. The umpire awarded the small portion, in the possession of the defendant, to the plaintiff, without saying to whom the large remainder belonged, and therefore, says the plaintiff in error, the award did not pass upon all the matters submitted, and is illegal. The terms of the submission embraced all matters in difference between the parties to the suit, and in relation thereto. Because the plaintiff's declaration went for two hundred acres, it does not necessarily follow that the parties were in difference about all of that land. A plaintiff may sue in ejectment for five thousand acres, and submit proof as to, and recover only five. But in fact, the small amount of land awarded to the plaintiff, was the only matter, so far as the lands are concerned, in difference. To whom that belonged, was the actual question. The possession of the remainder being in the plaintiff-his title not denied, but admitted by the defendant's counsel-it remained, after the award, precisely in statu quo. An award concerning that, would have been supererogatory. The rule clearly is, that the award must comprehend every thing submitted, and must not be of parcel only, If, indeed, the letter of the submission here embraced all the land, still this award is good; for the rule, as above, is subject to this limitation, to wit: If the words of the submission be more comprehensive than those of the award, yet if it do not appear that any thing else was in dispute between the par

The Mayor, &c. Savannah vs. Hartridge.

ties, besides what is comprehended in the award, it will be good. As, if the submission be of all actions, personal and real, and the award be of actions, personal only, it shall be presumed that no actions, real, were pending between the parties. Kyd, 172. Jackson vs. Ambler, 14 Johns. R. 105, 106. 8 Coke, 98. 19 H. 6, 6, b. Rol. Arb. L. 5. The land awarded to plaintiff, and that alone, was in dispute between these parties. This is manifest in this, that counsel of defendant admitted on the record, that the title to the lands was in Green, in this, that the evidence before the arbitrators was confined to the mere strip, and in this, that the statements of the arbitrators have reference to that only. The case, therefore, falls within the limitations of the rule.

Let the judgment below be affirmed.

No. 3.-THE MAYOR, &c. SAVANNAH, plaintiffs in error,, vs. CHARLES HARTRIDGE, defendant.

[I.] Taxation, in reference to the subject matter, is divided by writers on political economy, as well as the tax laws of all governments, into three classes capitation, property and income; and where one or more is treated of or acted upon, the other is never intended.

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[2] The history of the legislation of the State, in reference to a particular subject matter of taxation, may be referred to, as tending to aid in the construction to be given to the Statute; and where the State has never taxed income, the power to do so in a corporation, must appear by express words or unavoidable implication.

[3.] A charter, authorizing a municipal corporation to tax real and personal estate, does not, necessarily, confer the right to tax income

[4.] In the construction of Statutes made in favor of corporations or particular persons, and in derogation of common right, care should be taken not to extend them beyond their direct terms or their clear import.

[5.] Statutes which impose restrictions upon trade, or common occupations, must be construed strictly.

[6.] Statutes levying taxes should be construed most strongly against the Government and in favor of the citizen.

The Mayor, &c. Savannah vs. Hartridge."

[7.] Revenue Statutes are, in no just sense, remedial laws, and are not, therefore, to be liberally construed.

[8.] In laws imposing taxes, if there be a real doubt whether the inten tion of the Act was to levy the tax, that doubt should absolve the tax-payer. [9.] Retrospective Statutes are forbidden by the first principles of justice.<

Certiorari, in Chatham Superior Court. Decided by. Judge FLEMING, June, 1849.

By an ordinance of the Mayor and Council of Savannah, passed 11th November, 1842, a tax was imposed as follows: "Upon all gross income derived from commissions (whether ordinary or guaranty commissions) charged on purchases or sales of any articles whatever, on procuring or collecting freights, on receiving or forwarding goods, on all money negotiations, on the purchase or sale of stocks, or other evidences of debt, on commissions received as executor or executrix, or administrator or administratrix, and also upon the profits or income arising from the pursuit of any faculty, profession or calling, (the clergy and schoolmas ters excepted) there shall be paid a tax of two and a half per cent. on the gross amount of said bill.”

Under this ordinance, Charles Hartridge returned for "commissions on purchases, &c. $11,248;" and having failed to pay the tax, execution issued. Hartridge filed an affidavit of illegality, on the ground that the ordinance was unauthorized by any of the Acts granting power to tax to the Council.

These Acts are as follows: The Act of 1787 granted power "to lay and assess one or more rate or rates, assessment or assessments, upon all and every person or persons, who do or shall inhabit, hold, use or occupy, possess or enjoy any lot, ground, houses or place, building, tenement or heriditament, in any square, street or place, within the limits of the Town of Savannah," &c. The Act of 1805 grants power to assess and levy an annual tax on all persons and property within the said City, liable to pay tax by the general tax laws." The Act of 1825, by the seventh section, grants power to raise money "by a poll tax, or by tax and assessment, upon all real and personal estate within the limits of the City." By the fifteenth section, the Council are authorized to "tax pedlers within the jurisdictional limits of the corporation of Savannah, and to tax all and every person or persons vending

The Mayor, &c. Savannah vs. Hartridge.

any goods, wares or merchandize in the City of Savannah or hamlets thereof."

The Mayor and Aldermen, in Council, overruled the affidavit of illegality, and Hartridge carried the case before the Superior Court, by certiorari. On hearing the certiorari, the same was sus tained by the Court, and the decision of the Council reversed. This decision is alleged as error.

S. COHEN, for plaintiff in error.

The Acts of the Legislature, viz: the Act of the 10th February, 1787, and the Act of 2d December, 1805, and the Act of 24th December, 1825, give to the corporation the right to enforce the tax in question. Marbury & Crawford, 121. Clayton, 243. Dawson, 464.

Defendant is a factor and vendor of goods, wares and merchandize, and therefore liable to the tax. Clayton, 226, 229. Dawson, 420. Hotchkiss, 131, 132.And that this is not a poll tax. 16 Peters, 435, 446.

Income is properly classed under the word property, and is, therefore, a subject of taxation. 2 Blackstone, 103, 17. Linning vs. City Council of Charleston, 1 McCord, 345, 349. Bank of the State of Georgia vs. The Mayor and Aldermen, Dudley, 130, 131, 137. Portland Bank vs. Apthorp, 12 Mass. 252, 6, 7. 16 Peters, 435, 445, 446. 3 McCord, 374, 5, 6.

The charter of the City of Charleston authorizes the City Council" to make assessments on the inhabitants of Charleston, or those who hold taxable property within the same," and it has been decided that this grant of power gives full power to tax all subjects of taxation. 1 Nott & McCord, 527, 28, 30. 1 MeCord, 245, 7, 8, 9. 4 Wheaton, 429. 16 Peters, 435, 445. 3 McCord, 374, 5, 6.1

-And, finally, the Legislature, at its late session, has given a legislative interpretation to the various Acts of 1787, 1805, 1825, confirmatory of the power, and our own Supreme Court is liberal in its construction of City charters. 5 Kelly, 546, 561, 66, 67.

WARD (representing MCALLISTER) and Law, for defendants, cited:

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