De Pass v. City of Spartanburg

• Decision Date: 06 December 1938
• Docket Number: 14783.
• Citation: De Pass v. City of Spartanburg, 1 S.E.2d 904, 190 S.C. 22 (S.C. 1938)
• Parties: DE PASS v. CITY OF SPARTANBURG et al.
• Court: South Carolina Supreme Court

1 S.E.2d 904

190 S.C. 22

DE PASS v. CITY OF SPARTANBURG et al.

No. 14783.

Supreme Court of South Carolina

December 6, 1938

The order of Judge Greene directed to be reported follows:

Upon hearing of the demurrer, Hon. G. B. Greene, Presiding Judge filed the following order:

This matter came before me at Spartanburg on a Summons and Complaint duly served by the plaintiff and a Demurrer duly filed by the defendants.

Plaintiff alleges that certain property which is owned by him was sold on June 7, 1937, by J. H. Rothrock, tax collector of the City of Spartanburg, to satisfy city taxes on said property for the years 1930 through 1935. Plaintiff attacks said sale upon three grounds:

1st. That there was no seizure or levy upon the property as required by law.

2nd. That the lien for the taxes for the year 1933 and years prior thereto had expired.

3rd. That the penalties attached to the taxes attached to the executions were null and void.

Plaintiff asks (a) that the tax sale be declared null and void and set aside. (b) That the lien for taxes for the years 1933 and years prior thereto be declared lapsed and expired. (c) That the penalty added to the taxes for the years 1934 and 1935 be declared illegal. (d) That the defendants, City Council of City of Spartanburg, T. W. Woodworth, Mayor; J. A. Wood, A N. Willis, L. T. Cothran, and R. Fred Maddox, commissioners and their agents and servants, I. T. Williams and J. H Rothrock, or their successors, be permanently enjoined from conveying title to the City of Spartanburg or any other person under and by virtue of said sale, and from performing any further acts toward consummation of said sale.

The defendants filed a joint and several Demurrer to the Complaint upon the grounds:

1st. That the Court has no jurisdiction of the subject matter in that (a) the Court cannot issue an injunction to restrain the collection of taxes, and, (b) that it does not appear that plaintiff does not have an adequate remedy at law.

2nd. That the Complaint fails to state facts sufficient to constitute any cause of action in that (a) it does not appear that plaintiff has no adequate remedy at law. (b) That plaintiff has not tendered payment of taxes admittedly due. (c) That the defendants, City Council of City of Spartanburg; T. W. Woodworth, Mayor; J. A. Wood, A. N. Willis, L. T. Cothran, and R. Fred Maddox, commissioners; and I. T. Williams, City Clerk and treasurer, are either necessary or proper parties.

3rd. That there is a misjoinder of parties defendant, in that it does not appear that the City Council and Commissioners as named are either necessary or proper parties.

Taking up the grounds of Demurrer in order, it seems that the first ground of Demurrer has been specifically decided in the recent case of Home Building & Loan Association v. City of Spartanburg, 185 S.C. 353, 194 S.E. 143, a similar case to the present case. The Court said in the opinion written by the Circuit Judge and adopted by the Court [page 149]:

"There is another reason why such action can be maintained to restrain issuance of deed. The city undertook through the means of execution and sale to collect taxes which did not constitute a lien on the property, because the duration of the lien had expired.

"There is no remedy to pay said taxes under protest. In the Bomar Case [Bomar v. City of Spartanburg, 181 S.C. 453, 187 S.E. 921] the court said: 'Section 2846 gives the right to a person who protests the payment of taxes because he conceives that they have been unjustly or illegally assessed and collected to bring action for the refund of such taxes, but nowhere in that section, or elsewhere, is the right given to sue for the refund of taxes, the lien of which has expired.'

"If there is no remedy to pay under protest, it is well settled that the collection of the tax can be enjoined. In Santee River Cypress Co. v. Query et al., 168 S.C. 112, 167 S.E. 22, the Court said: 'It is not only within the power of a court of equity, but the duty rests upon it, to enjoin the collection of an illegal tax in those cases where no adequate legal remedy is provided for the aggrieved taxpayer. Ware Shoals Manufacturing Co. v. Jones, 78 S.C. 211, 58 S.E. 811."'

In the present case it is clear that upon the law as stated in the Home Building & Loan Case that the lien for taxes for the year 1933 and years prior thereto has expired. The demurrer upon jurisdictional grounds must, therefore, be overruled.

The next grounds upon which defendant demurs is that the complaint does not state facts sufficient to form a basis for relief prayed for. The complaint specifically states the sale of plaintiff's property for taxes for which the lien had expired, and under the case of Bomar v. City of Spartanburg, supra, cited and reaffirmed in the Home Building & Loan Case, supra, a court of equity must grant relief. Defendant again objects that tender was not made by the plaintiff before suit. This point was specifically decided by the Supreme Court as follows:

"It is further contended it was a condition precedent to the prosecution of this action that the plaintiff tender the amount of the taxes which are not in dispute. I assume this has reference to taxes for the years 1934 and 1935.

"The weight of authority does support the principle that, where one seeks to enjoin the collection of an excessive tax, he must tender what is admitted to be due before injunction will be allowed and that, before a court will remove cloud on title arising from alleged liens for taxes, there must be paid or tendered the tax justly due and owing. For the reasons hereinafter stated, I do not think this principle applicable to the relief which should be granted in this action. Assuming it was, however, I am inclined to think that it would not necessitate dismissal of the action, but the court would grant the relief which it deemed proper, conditioned upon payment of such taxes within a stipulated period. Singer Sewing Machine Company v. Cooper (D.C.), 263 F. 994.

"However, it is not proposed to enjoin or stay the collection of the taxes on this property for the years 1934 and 1935. If such were the case the foregoing principles perhaps would apply. The only relief that can or should be granted is to enjoin the officials of the city from issuing deed pursuant to a sale clearly illegal. The city is not restricted in any manner in the collection of the taxes justly owing and upon which the duration of the lien has not expired. In 61 C.J., p. 1091, we find: 'When suit is brought to enjoin that part of certain taxes only that are claimed to be invalid, complainants are not required to pay the taxes not sought to be enjoined as a condition precedent to their right to sue.'

"Also see Bell v. Meeker, 39 Ind.App. 224, 78 N.E. 641."

51 C.J. 254: "It has been held that the equity plaintiff may be compelled to do as a condition of relief must be one which defendant could enforce against plaintiff by an independent suit, and which arises out of the transaction forming the subject matter of the suit."

The defendants object that the city council of City of Spartanburg; T. W. Woodworth, Mayor; J. A. Wood, A. N. Willis, L. T. Cothran and R. Fred Maddox, Commissioners; and I. T. Williams, City Clerk and Treasurer, are neither necessary or proper parties.

As the Supreme Court has definitely decided in the Home Building & Loan Case, supra, that this type of case is not a suit against an arm of the State but a suit to enjoin or obviate the illegal act of the city officers, and as it was pointed out that this same procedure was had in the case of Charleston Heights Land Co. v. City Council of Charleston, 138 S.E. 187, 136 S.E. 393, and Ware Shoals Mfg. Co. v. Jones, supra, it seems to me that it is both proper and right to join as parties the city council and their agents who made the assessments and who are now attempting to collect the taxes. In this connection, I call attention to the following authorities:

44 C.J. Municipal Corporation, § 4520: "Parties defendant: The municipality is a proper party defendant, and the officers of the municipality alleged to have made the invalid assessment and to be attempting to enforce collection of the tax are properly joined as parties defendant, but it has been held that the municipality itself need not be made a party by name where the mayor and members of the council are made defendants and appear and answer in their official capacity, as well as individuals, unless the property rights of the municipality would be affected by the decree."

32 C.J. Injunctions, § 478: "Where a suit is brought to restrain action in behalf of a municipality, the officers whose duty it is to perform the acts sought to be enjoined are proper, and usually necessary parties. *** [f] In an equitable proceeding, where an attack is made upon the legality of certain taxes, which it is alleged the commissioners of a quasi public corporation are attempting to levy upon the property of complainants through the county clerk, the commissioners are necessary parties, essential to the rendition of a final decree. Knopf v. Chicago Real Est. Bd., 173 Ill. 196, 50 N.E. 658."

"In a suit in equity to enjoin collection of municipal taxes on realty, based on values fixed by officers of the municipality acting ultra vires, where the individual officers alleged to have made the assessment, and to be attempting to enforce collection thereof, were made parties defendant, the municipal corporation, being interested in the collection of the city's revenue, was also a proper party; and the suit being in equity, where all persons in interest ought to be parties. Gelders v. City of Fitzgerald, 135 Ga. 400, 69 S.E. 569." S.C. and S.E.Dig., Mun.Corp. k579.

Defendants' second...