Milster v. City of Spartanburg
| Decision Date | 08 December 1903 |
| Citation | 46 S.E. 539,68 S.C. 26 |
| Parties | MILSTER et al. v. CITY OF SPARTANBURG et al. |
| Court | South Carolina Supreme Court |
Application of J. H. Milster and A. J. Abbott for writ of mandamus against the city of Spartanburg and Spartan Mills. Writ granted.
Sease & Hoke, for petitioners. Simpson & Bomar, Sanders & De Pass and Ralph K. Carson, for respondents.
J. H Milster and A. J. Abbott, as residents and taxpayers of the city of Spartanburg, by their petitions filed in this court, ask that a writ of mandamus be issued to compel the city of Spartanburg to assess unpaid taxes against Spartan Mills for 13 years, beginning with 1890 and including 1902, amounting to $52,226.06, and to require Spartan Mills to pay the amount so assessed. The petitioners have been consolidated, and no separate discussion of them is necessary.
Jas. Y Culbreath, Esq., was appointed referee to take the testimony and report on the issues of fact made by the return of the respondents, and his full and lucid report is sustained throughout by the overwhelming weight of the evidence. No detailed discussion of the petitioners' exceptions to the findings of fact will be necessary, because, whatever view may be taken of the exceptions, the undisputed facts are, we think, conclusive of the case.
In 1888 a number of the citizens of Spartanburg had established in the city a cotton mill, under the charter of the Spartanburg Manufacturing Company. The enterprise was not profitable. The opinion was entertained by many, if not all the business men of the city, that its prosperity would be greatly advanced if a large manufacturing enterprise should be established within the corporate limits. A mass meeting of citizens was held to consider the matter, at which the statement was made that a large enterprise would be undertaken on the foundation of the Spartanburg Manufacturing Company, on condition that the city council would exempt all the property of the corporation, except its land, from taxation for 10 years. In furtherance of the plan, the city council passed an ordinance, February 27, 1890, providing that for the period of 10 years a sum equal to the city taxes on all the cotton mill company's property, except the land owned and used by it, should be paid to the company from the city treasury, and that the ordinance should be taken and construed as a contract with the city of Spartanburg. The Spartan Mills was induced by this ordinance to acquire the property of the Spartanburg Manufacturing Company, and, with a capital stock of $500,000, built a large cotton mill in the city, which, without this inducement, it would not have done. Instead of requiring a return of the property, making an assessment, and exacting payment of the taxes, and then paying to the mill company a like amount, as the letter of the ordinance directed, the city council omitted these formalities, treated the property as exempt from municipal taxation, and exacted no taxes for 10 years. Since the expiration of the period of 10 years, taxes have been regularly paid on all the property embraced in this intended exemption. In 1895 the directors of Spartan Mills determined to build another large mill, to be known as "No. 2," and were inclined to locate it some miles outside of the corporate limits, on account of some advantages claimed for mills operated away from towns and cities. To induce the company to build this mill in the city, and prevent the supposed diversion of business which would result from placing it a few miles away, the city council passed another ordinance of the same import as that above recited, the exemption period being for the term of 20 years, and applicable to the proposed new mill. The terms of this ordinance were accepted, and the new factory went into operation in 1897, and has paid no taxes on the property the ordinance was intended to exempt.
The evidence must convince any candid mind that the highest hopes of the result of the construction of the mills were realized, and that their operation imparted a great impulse to the city's progress. There is no evidence that the city council or the Spartan Mills had notice of any objection to the exemptions when the second mill was built, or at any time until these petitions were filed. The first ordinance was duly published, and the exemption provided by it seems to have been generally known to the people of Spartanburg, but no vote of the people was ever taken as to either attempted exemption. Milster testified he had known of the exemption several years--he could not tell how many, but before he commenced paying city taxes in 1898. Abbott could not say how long he had known of it. He has been paying taxes since 1879. Both petitioners have been benefited by the erection of the mills more than the entire city taxes paid by them since the exemption has been in effect. In the petition it is alleged that the proceeding is instituted, not only for the benefit of the petitioners, but of other taxpayers of the city of Spartanburg, who have had an additional burden placed upon them by reason of the alleged unjust discrimination. Some taxpayers who appeared as witnesses for petitioners testified to their dissatisfaction with the exemption, but the referee finds that a great majority of the citizens of Spartanburg are in favor of carrying out the contract of exemption which the council attempted to make, and this conclusion is well supported by the testimony. The respondents do not, in their returns or arguments, take the position that the city council had the legal right to grant the exemption or rebate, but insist the writ should be refused, on the facts above stated, for several reasons, which will be separately considered.
That the state is not a necessary party to a petition for mandamus, presented by a citizen to enforce a right in which the state in its sovereign capacity is not concerned, is settled by the case of Lord v. Bates, 48 S.C. 95, 26 S.E. 213. The state as a sovereign has no direct interest in the collection of the municipal taxes of the city of Spartanburg; only that portion of the public is concerned which is represented by the residents and taxpayers of the city.
The petition cannot be dismissed for lack of demand and refusal. If the Spartan Mills ought to have paid the taxes, and if the city of Spartanburg ought to have enforced their collection, the duty resting upon each was to the municipal public, and no one was specially charged to demand its performance; the obligation was imperative without demand. "The duty makes the demand, and the omission is the refusal." High on Extraordinary Remedies, § 41; Dillon on Municipal Corporations, § 867; Attorney General v. Boston, 123 Mass. 460.
The next position taken is that the present city of Spartanburg did not come into existence until December, 1901, when the charter of 1880 was surrendered and the city reincorporated under the general law enacted in 1901. The last section of this statute is: "The provisions of this act shall not affect the rights and liabilities acquired by any city under a charter heretofore granted and obtained." 23 St. at Large, p. 659. But, even without this section, the reincorporation would not have marked the destruction of the municipality, but its continuance with altered rights and powers as to the future, and hence would not have the effect of destroying the right of the city to collect taxes and other debts due to it under the old charter, nor prevent the enforcement of debts due by the city; nor would the right of a citizen to require the municipal authorities to collect or pay its debts have been impaired. ""Accordingly, the substitution of a new municipal charter in the place of a previous charter, or a change in such a charter, in whole or in part, where substantially the same territory and the same inhabitants are concerned, will not be presumed or be held to be the creation of a new corporation, but the assumption by the old one of new powers and privileges." 1 Dillon on Municipal Corporations, § 172; Neely v. Yorkville, 10 S.C. 151.
The respondents next insist that the purposes for which municipal taxes were levied for the past 13 years have been accomplished, and for this reason the city council cannot lawfully require the payment of any taxes the Spartan Mills may owe for those years. It is not asked that a tax shall be ordained or created, that is, "levied," in the sense in which the word is used in article 10, § 3, of the Constitution of 1895. That was done by the city council for each current year. The charge is that the Spartan Mills was not required to pay its share of the taxes so levied. It is manifest that, if it failed to pay taxes due to the city it cannot claim exemption on the ground that sufficient revenue was collected from others. When the general levy is within the charter limits, one who fails to pay cannot be discharged on the ground that there is no need for his portion. The fact that the payment will make an unexpended surplus in the treasury is of no importance. This frequently happens in the ordinary...
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