Harrison v. South Carolina Tax Commission, 19703

Decision Date11 October 1973
Docket NumberNo. 19703,19703
Citation261 S.C. 302,199 S.E.2d 763
CourtSouth Carolina Supreme Court
PartiesA. Frank HARRISON, III, Appellant, v. The SOUTH CAROLINA TAX COMMISSION, Respondent.

Frank A. Graham, Jr., Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Joe L. Allen, Jr., and G. Lewis Argoe, Columbia, for respondent.

BRAILSFORD, Justice.

Plaintiff, a Richland County taxpayer, brought this action against the South Carolina Tax Commission for a refund of ad valorem taxes paid without protest on December 31, 1969, and on January 29, 1970, aggregating $591.36. The complaint, alleging that the action was brought under Section 10--2605, Code of 1962, also sought a writ of mandamus requiring the Commission to correct the allegedly 'erroneous, improper and illegal' assessment of plaintiff's property. The Commission demurred to the complaint upon the ground that the action to recoup taxes paid was an action against the State without its consent, and that plaintiff, having had a plain and adequate remedy at law, was not entitled to the writ of mandamus.

The circuit court sustained the demurrer, holding (1) Section 10--2605, under which the complaint was laid, does not waive the State's immunity from suit; (2) Section 65--2684, alternatively relied upon by plaintiff in argument as authorizing the action, applies only to taxes collected by the Commission, not to ad valorem taxes paid by plaintiff to a county treasurer; and (3) plaintiff is not entitled to mandamus because an adequate remedy was afforded him by the pay-under-protest statute, Sections 65--2661 and 65--2662. The plaintiff has appealed on fifteen exceptions which he argues under four headings. However, the appeal is wholly without merit unless the record establishes reversible error in at least one of the three grounds of decision stated above, and we find it convenient to dispose of the appeal by considering these grounds in the order stated.

Act No. 624 of 1954 has been codified as Section 10--2605, which we quote, omitting only an irrelevant interpolation: 'Jurisdiction and venue of actions affecting State agencies and officials.--The circuit courts of this State are hereby vested with jurisdiction to hear and determine all questions, actions and controversies, . . . affecting boards, commissions and agencies of this State, and officials of the State in their official capacities In the circuit where such question, action or controversy shall arise.' (Italics ours.) The circuit court held that this Act did not waive the State's immunity from suit. Instead, it 'only provides jurisdiction in those cases where there is a waiver,' or, in those cases to which the immunity doctrine is inapplicable.

We agree that the Act of 1954 was not intended as a blanket waiver of sovereign immunity. Clearly there was no express waiver, as is required in such cases. '(T)he Courts have refused to hold that the sovereign immunity has been abrogated, abridged, or surrendered, except under plain and positive provisions of the statute (citations omitted).' Brazell v. City of Camden, 238 S.C. 580, 582--583, 121 S.E.2d 221, 222 (1961).

Since the Court of Common Pleas has jurisdiction in all civil cases under Article V, Section 15 of the Constitution of 1895, the Act of 1954 could not have been intended to confer jurisdiction on it of this class of actions in the strict sense of that term. The intent of the legislature must have been to fix the venue of such actions 'in the circuit where such question, action or controversy shall arise.' There is no doubt that this action against the Commission, to the extent that it seeks to recover taxes paid, is one against the State. Argent Lumber Co. v. Query, 178 S.C. 1, 182 S.E. 93 (1935). The court correctly concluded that such an action is not maintainable under Section 10--2605, which is essentially a venue statute rather than a waiver of the State's immunity from suit.

Section 65--2684 authorizes suit against the Commission for recovery of a license fee or tax which has been 'erroneously, improperly or illegally assessed, collected or otherwise paid over to the Commission.' By its terms, the statute is not available unless the taxpayer has made application for refund in writing to the Commission within three years from the date the license fee or tax was due to have been paid, and suit must be commenced within thirty days after notice to the taxpayer that his application has been declined by the Commission.

It is settled law that 'statutes waiving the State's immunity from suit, being in derogation of sovereignty, must be strictly construed, and that the State can be sued only in the manner and upon the terms and conditions prescribed by the statute.' Jeff Hunt Mach. Co. v. South Caroline State Highway Dept., 217 S.C. 423, 60 S.E.2d 859, 860 (1950).

The complaint, which relies upon Section 10--2605 as...

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8 cases
  • McCall by Andrews v. Batson
    • United States
    • United States State Supreme Court of South Carolina
    • October 16, 1984
    ...211 S.E.2d 241 (1975). 19. Graham v. Charleston County School Bd., 262 S.C. 314, 204 S.E.2d 384 (1974). 20. Harrison v. S.C. Tax Comm'n., 261 S.C. 302, 199 S.E.2d 763 (1973). 21. Division of General Services v. Ulmer, 256 S.C. 523, 183 S.E.2d 315 22. Elmwood Cemetery Ass'n v. Wasson, 253 S.......
  • Unisys Corp. v. SC Budget & Control Bd.
    • United States
    • United States State Supreme Court of South Carolina
    • August 14, 2001
    ...legislation controls if there is a conflict between two statutes). Moreover, five years before Kinsey, in Harrison v. South Carolina Tax Comm'n, 261 S.C. 302, 199 S.E.2d 763 (1973), we specifically held that § 15-77-50 is not a blanket waiver of sovereignty but is essentially a venue statut......
  • Jeter v. South Carolina Dept. of Transp., 26168.
    • United States
    • United States State Supreme Court of South Carolina
    • June 19, 2006
    ...or in which the employer resides or has his principal office. Id. at 239, 442 S.E.2d 598, 442 S.E.2d at 600. In Harrison v. S.C. Tax Comm'n, 261 S.C. 302, 199 S.E.2d 763 (1973), overruled on other grounds by McCall by Andrews v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985), superseded by sta......
  • Belue v. City of Spartanburg
    • United States
    • United States State Supreme Court of South Carolina
    • June 1, 1981
    ...S.C. 221, 213 S.E.2d 740 (1975); Belton v. Richland Memorial Hospital, 263 S.C. 446, 211 S.E.2d 241 (1975); Harrison v. S. C. Tax Commission, 261 S.C. 302, 199 S.E.2d 763 (1973); Division of General Services v. Ulmer, 256 S.C. 523, 183 S.E.2d 315 (1971); Elmwood Cemetery Association v. Wass......
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