Southern Ry. Co. v. City Council of Greenville

• Decision Date: 29 June 1897
• Citation: Southern Ry. Co. v. City Council of Greenville, 49 S.C 449, 27 S.E. 652 (S.C. 1897)
• Parties: SOUTHERN RY. CO. v. CITY COUNCIL OF GREENVILLE.
• Court: South Carolina Supreme Court

27 S.E. 652

49 S.C. 449

SOUTHERN RY. CO. v. CITY COUNCIL OF GREENVILLE.

Supreme Court of South Carolina

June 29, 1897

Appeal from common pleas circuit court of Greenville county; Joseph H. Earle, Judge.

Action by the Southern Railway Company against the city council of Greenville to recover a license tax paid under protest. From a judgment directing its repayment with interest, defendant appeals. Affirmed.

The original proceeding to determine plaintiff's liability was a controversy submitted without action, on the following facts: "(1) That the Southern Railway Company is a corporation created under the laws of Virginia, and legally doing business in the state of South Carolina, and that the city council of Greenville is a municipal corporation created under the laws of the state of South Carolina, and vested with power to conduct the municipal affairs of the city of Greenville. (2) That the fiscal year of said city runs from January to January, and taxes are collected in advance. That the regular tax ordinance for the year 1895 contains the following, among other sections: 'Sec. 4. No person, firm or corporation shall carry on any business or profession hereinafter mentioned without having first paid a special license tax therefor, as follows, to wit,' the provision as to railroads being, 'Railroad, for business done within the state, and not including that done without the state, $300.00' (3) That the Southern Railway Company owns and operates what were lately known as the Columbia & Greenville Railroad and the Atlanta & Charlotte Air Line Railway, both of which run into the city of Greenville, and are under one management, and have but one agent in said city, though having, for the convenience of the public, more than one depot, with ticket agent at each, connected by its tracks; said roads having separate charters, the C. & G. road being chartered by the state of South Carolina, and A. & C Air Line by the states of North Carolina, South Carolina, and Georgia, but operated by the Southern Railway Company, under the statute of the state allowing foreign corporations to own property and carry on business in the state under certain conditions, which conditions have been complied with. (4) That the said Southern Railway Company contended and contends that it is liable for but one license tax under the tax ordinance aforesaid, while the contention of the said city council of Greenville was and is that said company should pay two license taxes, by reason of its ownership aforesaid, or that the two roads are each liable for its said license fee. (5) That, being unable to agree, the said Southern Railway Company paid the said two license taxes under protest, filing with the treasurer of said city council, at the time of paying the same, the protest, a copy of which is hereto attached, and marked 'Exhibit A.' The question submitted to the court upon this case is: Was the said Southern Railway Company liable for two license taxes under the ordinance aforesaid, or only one, or is each of the aforesaid roads liable for said tax? If for two, then the controversy is decided in favor of the said city council of Greenville; if for one only, then the said city council is to return to said Southern Railway Company the sum of three hundred dollars, the judgment in either case being subject to appeal as provided for by statute."

J. A McCullough, for appellant.

J. S Cothran, for respondent.

McIVER C.J.

This is a sequel to the case between the same parties reported in 23 S.E. 952, where the nature of the case is fully stated. After the judgment in that case had been rendered, reversing the previous decision of the circuit court, and adjudging that the plaintiff was only liable for one, instead of two, license taxes, which had been paid under protest, the case came on for trial before his honor, the late Judge Earle, who rendered judgment in favor of the plaintiff for the sum of $300, the amount adjudged to have been illegally exacted by the defendant as a license tax, with interest on the same from the 10th day of January, 1895, the date on which the same was paid to the defendant under protest. From this judgment defendant appeals, solely upon the ground that there was error in allowing interest on the sum of $300, paid under protest.

It is well settled in this state that interest is recoverable in an action for money had and received. Goddard v. Bulow, 1 Nott & McC. 45; Barelli v. Brown, 1 McCord, 449; Marvin v. McRae, Cheves, 61; Kimbrel v Glover, 13 Rich. Law, 191; and Ancrum v. Slone, 2 Spear, 594,--which cases have been recently recognized in Greer v. Latimer, 25 S. E., at page 141. While this is the general rule yet, where it is shown that the money has not been used by the party receiving it, he may possibly be relieved from the payment of interest by showing that fact, the burden of which is upon him. As was said by Nott, J., in delivering the opinion of the court in Goddard v. Bulow, supra: "I am also further of opinion that whenever money has been obtained by fraud, extortion, oppression, or by taking an undue advantage of the situation of the party, or by any unfair or unlawful means, that the manner of obtaining it furnished sufficient evidence that it was done for the purpose of gain, and that the jury are authorized to give...