GARY
A. J.
The
facts are thus succinctly stated by the appellant's
attorneys: "This is an action brought by the plaintiff
the Southern Railway Company, against the defendant, J. R
Kay, as county treasurer of Oconee county, to recover from
the defendant the sum of $224.72 and costs, the amount of
taxes collected of plaintiff under protest by a levy of
one-half of one mill on the property of plaintiff for road
purposes made by the board of county commissioners for Oconee
county. The contention of plaintiff is that the county
commissioners had no authority to levy such tax, and such tax
is unlawful.
The
defendant admits the collection of the tax, and that the
payment was made under protest, and alleges that the levy was
authorized by the constitution of the state and by Act of
1896 (22 St. at Large, p. 238, § 26). From judgment for
plaintiff, defendant appeals."
We will
first consider whether the levy was authorized under the
provisions of the constitution. The provisions bearing on
this question are the following sections of article 10:
"Section
1. 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. ***
"Sec.
2. The general assembly shall provide for an annual tax
sufficient to defray the estimated expenses of the state
for each year, and whenever it shall happen that the
ordinary expenses of the state for any year shall exceed
the income of the state for such year, the general assembly
shall provide for levying a tax for the ensuing year
sufficient with other sources of income to pay the
deficiency of the preceding year, together with the
estimated expenses for the ensuing year.
"Sec.
3. No tax shall be levied except in pursuance of a law
which shall distinctly state the object of the same to
which object the tax shall be applied.
"Sec.
5. The corporate authorities of counties, townships, school
districts, cities, towns and villages, may be vested with power to assess and collect taxes for
corporate purposes, such taxes to be uniform in respect to
persons and property within the jurisdiction of the body
imposing the same. ***
"Sec.
6. *** The general assembly shall not have power to
authorize any county or township to levy a tax or issue
bonds for any purpose, except for educational purposes, to
build and repair public roads, buildings, and bridges, to
maintain and support prisoners, pay jurors, county officers
and for litigation, quarantine and court expenses and for
ordinary county purposes, to support paupers, and pay past
indebtedness."
"Sec.
13. The general assembly shall provide for the assessment
of all property for taxation; and state, county, township,
school, municipal and all other taxes shall be levied on
the same assessment which shall be that made for state
taxes; and the taxes for the subdivisions of the state
shall be levied and collected by the respective fiscal
authorities."
In the
case of State v. Railroad Co., 54 S.C. 564, 32 S.E
691, Mr. Justice Jones says: "Under the scheme of our
tax laws the names of all taxpayers and a statement of their
taxable property, with its value as assessed by proper
officers for taxation, the rate of taxation, and the specific
amount due by each, are entered by the county auditor on the
book known as the 'County Duplicate,' and this
duplicate, when delivered to the county treasurer, becomes
his warrant for the collection of taxes, subject to certain
provisions for additional entries after delivery of the
duplicate to the treasurer. Taxes are legally assessed and
become a charge against the taxpayer when so entered
according to law." The court in People of New York
v. Weaver, 100 U.S. 539, 25 L.Ed. 705, shows that
taxation has reference to the entire process of assessments,
and includes the valuation of the shares as well as the ratio
of percentage charged on such valuation. It says: "This
valuation, then, is a part of the assessment of taxes. It is
a necessary part of every assessment of taxes which is
governed by a ratio of percentage. There can be
no rate of percentage without a valuation." Then the
court proceeds to quote the following: "'When taxes
have been properly decided upon, an assessment may become an
indispensable proceeding in the establishment of any
individual charge against either person or property. This is
always requisite when the taxes are to be levied in
proportion to an estimate either of value of benefits or the
results of business.' 'An assessment, strictly
speaking, is an official estimate of the sums which are to
constitute the basis of an apportionment of a tax between the
individual subjects of taxation within the district.' As
the word is more commonly employed, an assessment consists in
the two processes, listing the persons, property, etc., to be
taxed, and of estimating the sums which are to be the guide
in an apportionment of the tax between them. *** Taxation by
valuation cannot be apportioned without it." Cooley,
Tax'n, 258, 259; Burroughs, Tax'n, p. 198, § 94. So,
also, Judge Bouvier defines "assessment" to be
"determining the value of a man's property or
occupation for the purpose of levying a tax. Determining the
share of a tax to be paid by each individual. Levying a tax.
Bank v. Barry, 1 Bond, 154, Fed. Cas. No. 12,204." This
language is quoted with approval in State v. Railroad Co.,
supra. In defining the meaning of the word "levy,"
under the head of "Taxation," 25 Am. & Eng. Enc.
Law (1st Ed.) p. 181, says: "The term 'levy' is
here usèd to indicate the legislative act, whether state or
local, which determines that a tax shall be laid, and is to
be distinguished from the levy on property incident to the
enforcement of the collection of the tax, in which sense the
term is also used;" and in defining the term
"assessment," on page 199, it uses this language:
"An assessment may be defined to be the act of
assessing, determining, or adjusting the amount of taxation
to be paid by an individual or a community,--an official
valuation of property, profits, or income for purposes of
taxation. Where taxes are to be levied in proportion to an
estimate either of values, benefits, or the results of
business, an assessment is indispensable." Webster's
International Dictionary gives as one of the
definitions of levy: 'To raise or collect by...
