State v. Brown

• Decision Date: 06 January 1930
• Docket Number: 12802.
• Citation: 151 S.E. 218,154 S.C. 55
• Parties: STATE ex rel. SOUTH CAROLINA TAX COMMISSION v. BROWN, County Tax Collector. SAME v. ROWELL, Sheriff.
• Court: South Carolina Supreme Court

151 S.E. 218

154 S.C. 55

STATE ex rel. SOUTH CAROLINA TAX COMMISSION v. BROWN, County Tax Collector.

SAME v. ROWELL, Sheriff.

No. 12802.

Supreme Court of South Carolina

January 6, 1930

Original proceedings by the State, on the relation of the South Carolina Tax Commission, for mandamus to be directed to L. J Brown, Tax Collector of Marion County, and to J. V. Rowell Sheriff of Marion County. Writ granted as against Tax Collector, but denied as against Sheriff.

John M Daniel, Atty. Gen., Cordie Page, Asst. Atty. Gen., and J. Fraser Lyon, of Columbia, for relator.

BLEASE J.

The petitioner, South Carolina Tax Commission, is charged with the duty of assessing and collecting certain taxes and licenses, fixed under certain acts of the General Assembly. In its efforts to enforce the payment of certain of these taxes and licenses, assessed in Marion county, the petitioner placed with the respondent Brown, the tax collector of Marion county, under a special act of the General Assembly, a certain execution for the collection of income tax, assessed and to be collected under an act entitled "An act to raise revenue for the support of the state government by the levy and collection of a tax upon income," approved on October 12, 1926, which was not printed, however, in the Acts of that year, but may be found in the Acts of 1927, [154 S.C. 58] at page 1 (35 St. at Large, p. 1). The respondent Brown refused to proceed with the enforcement of the execution, on the ground that it was not his duty to do so. Thereupon the petitioner has applied for a writ of mandamus requiring Brown to proceed to execute the execution.

The petitioner also placed with the sheriff of Marion county an execution to collect certain delinquent taxes, assessed and due under Act No. 574, approved March 10, 1928 (35 St. at Large, p. 1089), relating to the assessment and collection of certain license taxes, which Sheriff Rowell declined to enforce, on the ground that it was not his duty under the law so to do. The petitioner then made application for a writ of mandamus requiring the sheriff to proceed to enforce the collection of that execution.

It appears that the petitioner believes, and it so alleges in its respective petitions, that it is the duty of the tax collector to enforce the executions under the act of 1926, supra, and that it is the duty of the sheriff to enforce the executions under the act of 1928, supra. The respondent Brown, the tax collector, takes the position that he has no authority to enforce any of the executions, and that the duty to enforce all of them rests upon the sheriff of the county. On the other hand, Sheriff Rowell alleges that the duty to collect all of these executions lies with the tax collector, and that he has no authority in the premises.

The two causes are so closely allied that we conceive it best to dispose of them together, which we shall undertake to do. The office of tax collector of Marion county was created by a special act of the General Assembly, approved March 19, 1927 (35 St. at Large, p. 181), entitled "An act to provide for a tax collector in the county of Marion, define the duties and fix the compensation." Since the office of tax collector of Marion county is distinctly a creation of the Legislature, it follows, of course, that the lawmaking body has the power to prescribe the duties to be performed by that official. The respondent Brown contends that the Act does not require him to enforce executions issued by the petitioner, but that his duty is limited to the enforcement of only the executions directed to him by the treasurer of Marion county.

The Act is not as clear as it perhaps should have been, and because of that respondent Brown has some reason for the position he has taken. We think, however, that full consideration of all the language of the enactment shows that, at the time of its passage, the General Assembly had the clear intention of requiring all delinquent taxes of all kinds to be collected by the tax collector. Section 7 of the act is as follows:

"It is understood and is declared by this Act that all power, duties and authority now vested in the sheriff of said county as to the collection of delinquent taxes, seizure and sale of the property, the making of deeds, etc., is hereby conferred upon the tax collector herein named, and he is hereby given full power and authority to carry into effect all the laws now pertaining to the execution of delinquent taxes, the making of deeds under tax execution sale, etc., the same as is now provided for the sheriff, and the sheriff of the said county is hereby relieved from the collection of any delinquent taxes: Provided, the sheriff of Marion county shall turn over to the tax collector herein provided for, all delinquent taxes, tax returns, immediately upon the passage of this act, and is hereby required to make immediate settlement of all taxes collected to the county treasurer of Marion county."

We have italicized certain language contained in the quoted section, which convinces us that one of the main things which the General Assembly sought to accomplish was to relieve the sheriff of Marion county of any duty whatsoever relating to the collection of delinquent taxes, a duty which rested upon the sheriff prior to the passage of the act. Under our construction of the act of 1927, providing for the appointment of the tax collector for Marion county, it was clearly the duty of that official to enforce all executions for delinquent taxes placed with him by the petitioner under Acts of the General Assembly then of force. Accordingly the respondent Brown should have proceeded to enforce the executions directed to him by the petitioner for the collection of delinquent income tax under the act of 1926. So we hold that the petitioner is entitled to the writ of mandamus against the respondent Brown as tax collector of Marion county.

The other question, relating to the duty of the sheriff to enforce the execution issued by the petitioner under the act of 1928, is a little more difficult to determine. The petitioner contends that the act of 1928, relating to certain special license taxes, expressly provided that executions issued thereunder are to be directed to the respective sheriffs of the state, and that this enactment has the effect of repealing to that extent the requirement under the act of 1927 that such executions shall be enforced by the tax collector of Marion county.

The petitioner depends upon that well established legal principle that when there is a direct conflict in two enactments of the General Assembly, the last enactment supersedes the first. The petitioner is of the opinion that section 20 of the act of 1928, which expressly directs that the sheriff shall enforce the warrants of execution for the collection of delinquent taxes, under that law, has the effect of repealing anything in the act of 1927 which may require the tax collector of Marion county to enforce such warrants of execution.

While recognizing fully that rule of statutory construction relied upon by the petitioner, we are of the opinion that it is not applicable in this instance. As stated before, we think the Legislature clearly intended...