Andrews Bearing Corp. v. Brady, 19739

• Decision Date: 10 December 1973
• Docket Number: No. 19739,19739
• Citation: 201 S.E.2d 241,261 S.C. 533
• Court: South Carolina Supreme Court
• Parties: ANDREWS BEARING CORPORATION, Respondent, v. Oren L. BRADY, Jr., as Treasurer of the County of Spartanburg, et al., Appellants.

Page 241

201 S.E.2d 241

261 S.C. 533

ANDREWS BEARING CORPORATION, Respondent, v. Oren L. BRADY, Jr., as Treasurer of the County of Spartanburg, et al., Appellants.

No. 19739.

Supreme Court of South Carolina.

Dec. 10, 1973.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joe L. Allen, Jr., Columbia, and T. Emmet Walsh and Roy McBee Smith, Spartanburg, for appellants.

Neville Holcombe, of Holcombe, Bomar, Cureton & Wynn, Spartanburg, for respondent.

BUSSEY, Justice:

In this action respondent seeks to recover ad valorem taxes in the amount of $33,161.17, paid under protest to the appellants for the year 1971. The complaint alleges that respondent, a manufacturer, was required by Sec. 65--1647.1 of the Code to file its property tax returns with the South Carolina Tax Commission, which assessed respondent's real and personal property on the basis of a 9.5% Ratio to the fair market value of said property. Pursuant to the law, the assessor for Spartanburg County for the year 1971 applied a 4.2% Ratio to the fair market value of the real property which he assessed for tax purposes in Spartanburg County. The respondent paid all of its city and county taxes for the year 1971 under protest, but by consent order entered in this action, so much of the property taxes as measured by a 4.2% Tax assessment ratio was released to the county and city taxing authorities, the excess being held by the County Treasurer pending the outcome of this litigation.

Respondent asserts that the use by the Tax Commission of a higher ratio to value in assessing both respondent's personal and real property than the ratio used by the local assessor in assessing real property belonging to other than manufacturers is violative of the South Carolina Constitution, specifically Article I, Sec. 3; Article III, Sec. 29; Article X, Sec. 1; Article X, Sec. 3A; and Article X, Sec. 5(1), and is also in violation of Code Section 65--64(17). The complaint alleged that the respondent had unsuccessfully protested the assessment by the Commission but did not allege that it appealed from the ruling of the Commission to the Tax Board of Review pursuant to Code Sec. 65--105. The defendants demurred to the complaint contending that it was insufficient to state a cause of action, since it was not alleged that respondent had exhausted its administrative remedies by appealing to the Tax Board of Review; and that as a result no cause of action existed and the court was without jurisdiction. The appeal is from an order of the lower court overruling such demurrer.

Relied upon by the appellants here is a quotation from 73 C.J.S. Public Administrative Bodies and Procedure § 41, to the effect that the rule requiring the exhaustion of administrative remedies is an inflexible one. The text goes on to say, though, 'However, in some jurisdictions it is a rule of policy, convenience, and discretion rather than of law, and is not jurisdictional.' The decisions of this Court have committed us to the quoted view. Pullman Company v. Public Service Commission, 234 S.C. 365, 108 S.E.2d 571; Ex parte All state Insurance Company, 248 S.C. 550, 151 S.E.2d 849. We quote the following from the last cited case:

'While we have, where the question was involved, rather consistently applied the doctrine of exhaustion of administrative remedies to avoid interference with the orderly performance of administrative...