Ellerbe v. David

• Decision Date: 15 April 1940
• Docket Number: 15066.
• Parties: ELLERBE v. DAVID, County Treasurer, et al.
• Court: South Carolina Supreme Court

8 S.E.2d 518

193 S.C. 332

ELLERBE v. DAVID, County Treasurer, et al.

No. 15066.

Supreme Court of South Carolina

April 15, 1940

Stevenson & Lindsay, of Bennettsville, for appellants.

H I. Ellerbe and Tison & Miller, all of Bennettsville, for respondent.

E. H HENDERSON, Acting Associate Justice.

In the year 1937 a severe hail storm visited portions of Marlboro County, and inflicted damage to crops.

The following year the General Assembly passed joint resolutions exempting from 1937 taxes, other than State taxes, the property of taxpayers residing in certain school districts of the county, who suffered damage from hail in that year. The County Treasurer was authorized to borrow sufficient money to refund the 1937 taxes which had been paid by the hail sufferers, and provisions were made for the levy and collection of taxes for the repayment of the loan. Acts of Feb. 26 and May 9, 40 St. at Large, 1938, pages 2630 and 2631.

This action was begun in July, 1938, by the plaintiff on behalf of himself and of all other citizens and taxpayers of the county. He contended that the joint resolutions were in violation of nine sections of the Constitution of 1895 especially of Article 10, Section 1; and sought an injunction against the carrying out of the provisions of the resolutions.

The testimony in the case clearly shows that the exemptions did not apply to all of the school districts of the county; that the property exempted from taxation is owned and used as private property; and that there were other citizens and taxpayers of the county who suffered hail storm damage in 1937, besides those in the school districts named in the resolutions.

The case was heard by his Honor, Judge E. C. Dennis, who held that the joint resolutions were unconstitutional, and a permanent injunction was granted.

In 1939, the General Assembly extended the terms of the joint resolutions until the case could be decided by this Court. Act March 17, 1939, Acts of 1939, 40 St. at Large, page 1327.

The very full power vested by the Constitution in the General Assembly in matters of taxation is set forth in the case of Duke Power Company v. Bell, 156 S.C. 299, 152 S.E. 865, 869: "The supreme legislative power of the State is vested in the General Assembly. State v. Aiken, 42 S.C. 222, 20 S.E. 221, 26 L.R.A. 345. The provisions of the State Constitution are not a grant but a limitation of legislative power, so that the Legislature may enact any law not expressly, or by clear implication, prohibited by the Constitution of the State or nation. Fripp v. Coburn, 101 S.C. 312, 85 S.E. 774. The power of taxation is a legislative power, and knows no limitations, except those imposed expressly or by plain implication in the State or Federal Constitution. 26 R.C.L. 86. 'The power to prescribe what property shall be taxed implies the power to prescribe what property shall be exempt, and, in the absence of a special constitutional provision to the contrary, the Legislature may exempt such classes of property from taxation as in its opinion the public policy of the State requires.' 26 R. C.L. 297, Section 262; Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct. 427, 29 L.Ed. 680; Note 19 L.R.A. 78. Within such constitutional limitations 'the necessity, utility, and expediency of legislation are for the determination of the Legislature alone.' Santee Mills v. Query, 122 S.C. 158, 115 S.E. 202, 203. 'Every presumption must be indulged in favor of the constitutionality of an act of the Legislature, and to justify a Court in pronouncing legislation unconstitutional, the case must be so clear as to be free from doubt and the conflict of the statute with the Constitution must be irreconcilable.' Santee Mills v. Query, supra."

The part of Article 10, Section 1, of the Constitution which is applicable to this case, is as follows: "The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe regulations to secure a just valuation for taxation of all property, real, personal and possessory, except mines and mining claims, the products of which alone shall be taxed; and also excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes."

Keeping in mind the provision for the taxation of all property, and the provision of equal force giving the Legislature full power to exempt property from taxation for municipal, educational, literary, scientific, religious or charitable purposes, the question is: Does the exemption from taxation of the private property of some of the hail sufferers of a county, who reside in certain of the school districts, fall within one of these purposes?

Manifestly, it could not be claimed that the exemption here is included within any of these purposes, unless it be a municipal or charitable purpose.

We do not think it could be regarded as a charitable purpose.

Such purposes have been defined to be eleemosynary purposes. 61 C.J. 455. "In its usual and ordinary sense, the word [charitable] has been held to mean pertaining to almsgiving or the relief of the poor, springing from,...