Shillito v. City of Spartanburg

• Decision Date: 07 December 1948
• Docket Number: 16154.
• Citation: 51 S.E.2d 95,214 S.C. 11
• Parties: SHILLITO v. CITY OF SPARTANBURG et al.
• Court: South Carolina Supreme Court

51 S.E.2d 95

214 S.C. 11

SHILLITO v. CITY OF SPARTANBURG et al.

No. 16154.

Supreme Court of South Carolina

December 7, 1948

John G. Galbraith and Carlisle, Brown &amp Carlisle, all of Spartanburg, for appellants.

E. W. Johnson, of Spartanburg, for respondent.

FISHBURNE, Justice.

This cause is here on appeal to review the judgment of the circuit court of Spartanburg County which declared unconstitutional an Act passed by the General Assembly (No. 841, Act Jan. 23 1946, 44 St. at Large, p. 2494) providing for an annual tax levy in the city of Spartanburg for the benefit of the Spartanburg City Firemen's Pension Fund.

The plaintiff, a resident and taxpayer of the City of Spartanburg, challenges the constitutionality of the Act as being in violation of various provisions of the Constitution. The action is brought by the plaintiff not only in his individual capacity as a taxpayer to recover the sum of $6.28, which is the amount of the tax levied against his property under the foregoing Act and which he paid under protest, but his complaint is framed as a class suit, and in the body of the complaint he alleges that the proceeding is brought by him as a taxpayer and for the benefit of himself and all other citizens and taxpayers of the city of Spartanburg. It is claimed that the complaint seeks relief of a three-fold character: It is aimed, (a) against the illegality of the tax; (b) against the levying of subsequent assessments under the alleged unlawful tax; and (c) against the disbursement of funds collected from such tax.

The defendants moved to strike various allegations from the complaint, among them those allegations which sought to set up a taxpayers' action. Reserving their rights under this motion, they answered admitting certain allegations setting out the levy of the tax provided for in the Act which is under attack, and that the plaintiff paid the amount assessed against him under protest. They denied, (1) that the action was a class action, (2) that the tax was illegally levied or collected; (3) that Act No. 841 is unconstitutional; and (4) denied the allegations which sought injunction and control of the funds so collected.

It further appears from the answer that the funds collected under the authority of the challenged Act amount to about $25,000, and that at the time of the commencement of this action substantially all of the levy had been paid in by the taxpayers of the city. That this amount was paid without objection or protest on the part of the taxpayers of Spartanburg, excetp the $6.28 paid by the plaintiff; and it is averred that plaintiff's sole remedy, if any, is under Section 2808 of the 1942 Code for its recovery. It is alleged that the plaintiff is without right to assert in behalf of the taxpayers paying without protest, a remedy which they themselves do not have. The City of Spartanburg also defended on the ground that so much of plaintiff's cause of action as seeks to enjoin by injunction further assessments and levies under the 1946 Act, is in violation of the provisions of Sections 2807 and 2809, 1942 Code, which provide that the collection of taxes shall not be stayed or prevented by injunction.

Those defendants who comprise the Board of Trustees of the Spartanburg City Firemen's Pension Fund, joined in the motion to strike certain allegations from the complaint, and served a separate answer adopting that of the defendants, the mayor, city councilmen, and treasurer of the city of Spartanburg.

Upon the institution of the suit, the plaintiff obtained a temporary injunction, later made permanent, restraining the defendant, City of Spartanburg, from turning over the proceeds of the tax fund collected under the alleged invalid Act to the Firemen's Pension Fund. Further assessments and levies were likewise enjoined.

The cause was heard upon the pleadings. The circuit court overruled the motion to strike, upheld the contention of the plaintiff that the action could be brought as one for a class; made permanent the order restraining the transfer of the funds collected by the City of Spartanburg to the Firemen's Pension Fund; enjoined further levies and assessments under the 1946 Act which it held to be unconstitutional, and ordered the funds already collected thereunder (except the $6.28 sued for) to, '* * * be a part of the general funds of the City of Spartanburg, subject only to payment of such attorney's fees as may be allowed the attorney for the plaintiff by the court upon proper notice and application therefor before me, and for this purpose only jurisdiction is retained.'

The circuit court in striking down the Act (1946 Gen.Stat. 2494), based its action upon various constitutional grounds, but in our opinion it will be necessary to consider only one alleged violation of the Constitution which renders the Act invalid.

The respondent contends that the Act runs counter to several constitutional provisions, among them Art. III, Sec. 34, in that it is a special law where a general law can be made applicable.

By Art III, Sec. 34, it is provided that the general assembly of this state shall not enact local or special laws concerning any of the following subjects, or for any of the following purposes, to wit: Here follow eight enumerated subjects prohibited by the Constitution. This enumeration is followed by subdivision 9, which provides: 'In all other cases where a general law can be made applicable, no special law shall be enacted.' We are not concerned with the first eight numbered subjects; they have no relevancy here.

The 1946 Act provides that a tax of one mill shall be levied annually on property in the city of Spartanburg and turned over to the Spartanburg City Firemen's Pension Fund. The Act is mandatory upon the city officials and directs that the fund collected from the one mill tax shall be specifically earmarked and set aside for the purpose above stated. By its restrictive terms, it applies only to the City of Spartanburg among all the municipalities in the state. No effort at classification is made. No other city or town is included within the terms and provisions of the law. The appellants argue, however, that the Act should be upheld because it is none other than a local taxing statute which appropriates for a permitted municipal purpose, provides a levy accordingly, and is, therefore, valid.

A general law of the state, Section 7658-1, 1942 Code, creates a firemen's pension fund in all cities in the class including Spartanburg, states the purpose of the fund, its sources of income or revenue, and provides for a board of trustees to administer it. This law, however, authorizes no municipal tax levy. Code Section 8028 provides that certain funds collected by the state insurance commissioner from fire insurance companies be apportioned among certain fire departments complying with the statute. Both of the foregoing sections of the Code comprise general laws which are applicable to certain cities duly classified. To the same effect are Sections 7531 and 7532.

It is true that each county or city in the state is a separate taxing district and has corporate and public purposes to be accomplished by means of taxation, limited alone to citizens or property within its territory. Hay v. Leonard, 212 S.C. 81, 46 S.E.2d 653; Anderson v. Page, 208 S.C. 146, 37 S.E.2d 289; State v. Touchberry, 121 S.C. 5, 113 S.E. 345; Murph v. Landrum, 76 S.C. 21, 56 S.E. 850.

The foregoing cases uphold the principle that individual districts--for example, counties, cities and towns and school districts, may impose a legal tax limited in application and incidence to persons or property within the prescribed area. In the cited cases, however, the statutes under construction not only applied uniformly to all persons and property within the area affected, but the funds collected from the particular levy were to be used for the benefit of all persons residing within the area, whether such purpose was for the support of schools, roads or government. Such funds were not confined to the sole use and benefit of any particular class.

The Act before us provides for a general tax on all property within the city of Spartanburg, the proceeds of which are to be used solely for the benefit of a specified class. The law relates to particular persons or objects (Firemen's Pension Fund) as one of a portion of a class. It is apparent that it is restricted to the use and benefit of firemen only in the City of Spartanburg.

It cannot be maintained that because the Act is local in form, it must be presumed that there was some sufficient local necessity for its enactment, for this would totally defeat the provisions of the Constitution. As was said in Thomas v. Macklen, 186 S.C. 290, 195 S.E. 539, 542, 'If it must be assumed, merely because the statute has been enacted, that the Legislature had information showing that there was a necessity for such legislation with reference to the particular locality, it would follow that all legislation local in form must be upheld, however general the nature and subject-matter of such legislation might be. Such a rule of construction would be contrary to the mandatory character of the constitutional provisions we are considering.'

The legislative isolation effected by the 1946 Act with reference to the Firemen's Pension Fund in the city of Spartanburg, if allowed, would doubtless be followed by other local Acts, hardly distinguishable, and the evasion of this constitutional provision would become a matter of general practice.

The language of the Constitution which prohibits a special law where a general law can be made applicable, plainly implies that there are or may be cases where a special Act will best meet the exigencies of a particular case, and in no wise be...