State v. County Treasurer

• Court: South Carolina Supreme Court
• Writing for the Court: WILLARD, A. J.
• Citation: State v. County Treasurer, 4 S. C. 520 (S.C. 1873)
• Decision Date: 06 September 1873
• Parties: STATE v. COUNTY TREASURER.

4 S.C. 520

STATE v. COUNTY TREASURER.

Supreme Court of South Carolina.

September 6, 1873

No provision of the Constitution of the United States or of the State inhibits the Legislature of the State from passing an Act depriving the citizen of his existing remedy by prohibition to stay the collection of taxes illegally assessed upon his property.

A provision that " the collection of taxes shall not be stayed, or prevented, by any injunction, writ or order issued by any Court or officer, except as provided for in this Act, and in the Act to provide for the assessment of property," is included in one general subject expressed by the title of an Act entitled " An Act to amend an Act entitled ‘ An Act to provide for the assessment and taxation of property.’ "

The provision in Section 15, Article IV, of the Constitution of the State, that the Courts of Common Pleas " shall have power to issue writs of mandamus , prohibition scire facias , and all other writs which may be necessay for carrying their powers fully into effect," does not inhibit the Legislature of the State from excluding the theretofore existing remedy by prohibition in a particular case.

BEFORE GRAHAM, J., AT CHARLESTON, JUNE TERM, 1872.

These were applications to the Circuit Court of Common Pleas for writs of prohibition— one by the South Carolina Society, and the other by the Hebrew Orphan Society, against William M. Gurney, County Treasurer, and Samuel L. Bennett County Auditor.

The facts of the case and the points of law raised are fully stated in the opinion of the Circuit Judge, which is as follows:

GRAHAM J.

These cases were brought before me by suggestions praying for writs prohibiting the defendants and their successors in office from collecting taxes assessed and charged against the relators on the books of the County Treasurer for the years 1868, 1869, 1870 and 1871.

Rules were thereupon issued in each case against the defendants requiring them to shew cause why the prayer should not be granted. Returns were made accordingly, and the causes argued on the 5th instant, the Attorney General appearing for the defendants, and Hayne & Son and J. N. Nathans for the relators.

The relators allege in their suggestions that the societies named are institutions of purely public charity, and that all their property is used exclusively for the maintenance and support of said institutions. Affidavits were also submitted in support of the suggestions.

And the relators claim that such property is exempt from taxation by clause 9, Section 6, Chapter XII, Title III, of the General Statutes, and that the assessment and taxation of said property is therefore illegal and erroneous, and the defendants should be restrained and prohibited from attempting to collect the same.

The allegations of the relators are not denied by the defendants, who, in their returns to the rules, say— " That the writ of prohibition ought not to be granted: first, because Section 62, Chapter XII, Title III, of the General Statutes, declares that ‘ the collection of taxes shall not be stayed or prevented by any injunction, writ or order, issued by any Court or Judge thereof; ’ and, second, because the relators are not exempt from taxation of their property, and are in law and duty bound to pay the taxes charged against them as aforesaid."

The first point to be determined, then, is whether this Court has jurisdiction of the subject-matter, so as to grant the relief asked for, or whether it is deprived of such jurisdiction by the legislative inhibition relied on by defendants.

The questions now raised have already been presented to the Court in another form, and it is necessary to refer to the conclusion then arrived at. The present relators, by their attorneys, and the Attorney General, on behalf of the defendants, agreed upon a case to be submitted without controversy.

The facts were agreed upon, and the questions submitted for adjudication were substantially the same now made by the suggestions and returns. The points made were fully argued before me. The Attorney General contended then, as he does now, that this Court has no jurisdiction of the subject so as to grant the relief asked for. That, although the taxes assessed and charged against the relators have been illegally and erroneously assessed and charged against them, yet this Court cannot restrain or prohibit the defendants from collecting the same, such interference having been forbidden by Act of Assembly. That the only remedy open to a person or corporation illegally and erroneously assessed and taxed is to pay the tax and bring suit to recover back the money. And that, even if the Court had jurisdiction, it ought not to grant the prayer, because the relators are not institutions of purely public charity.

On behalf of the relators it was contended, then and now, that this Court is invested by the Constitution with power to issue a writ of prohibition in a proper case; that prohibition is the proper remedy to prevent the collection of taxes illegally assessed, and charged against any person or corporation; and that the Legislature cannot take away, limit or restrain the constitutional power of the Court in regard to such writ.

The points made, as I have stated, were elaborately argued when the cases were first before me. I came to the conclusion then that the relators are institutions of purely public charity, within the meaning of the Act, and that their property was by law exempt from taxation, but I was not prepared to declare that the Legislature had not the power to prohibit this Court from staying or preventing the collection of taxes. Conceiving it to be a duty of a Circuit Judge to sustain the constitutionality of an Act, except where it is clearly and manifestly repugnant to the Constitution, I, in the case before me, decided in favor of the Act relied on by the Attorney General, and that this Court had no jurisdiction of the subject-matter so as to grant the relief asked for. Having so decided, it was unnecessary to give any opinion on the other points presented, and I, accordingly, expressed none.

The relators appealed from my decision and the cases came before the Supreme Court. The appeal was dismissed, but the opinion rests upon a ground which does not apply to the case now presented. The Court say " the Circuit Judge refused the application for the prohibition for want of jurisdiction. He has not set forth the reasons which induced his conclusions, and we are, therefore, left to determine for ourselves how, as the Judge of a Court, invested by the Constitution with power to issue writs of prohibition , he did not regard himself authorized to consider the point made by the proposed case before him." After referring to the course of practice heretofore prevailing in this State in regard to prohibitions, and pointing out that the parties to the case, then before them, had resorted to a different form of practice— one provided for in the Code— and that the form of procedure in relation to the writ of prohibition remains as it stood before the Code, the Court conclude that as they " are not furnished with the view which controlled the decision of the Circuit Judge, if it is apparent, as it must be conceded it is, that though invested with power to grant a writ of prohibition , he can only exercise it in a case actually pending before him, and that the form in which these parties presented this issue was not appropriate to the remedy selected, how can they undertake to say, in the face of the express exception in the Code, that this conclusion is erroneous." The Supreme Court, apparently, therefore, sustain the Circuit decision solely upon the ground that " the form in which these parties presented the issue was not appropriate to the remedy selected," and intimate that the form now presented is according to the course of practice heretofore prevailing in the Courts of this State.

It is proper to remark that the ground upon which the Supreme Court sustains the Circuit decision was not presented to me when the case was heard, nor did it occur to me when I decided the case. My decision was based solely upon the inhibition contained in the Act cited by the Attorney General, which I believed to be a constitutional exercise of power on the part of the Legislature.

The questions before submitted are now again before the Court, without the technical objection to the form of procedure pointed out by the Supreme Court. I have carefully considered the opinion of the Supreme Court, and can come to no other conclusion than that it is a clear intimation from that Court that " as the Judge of a Court invested by the Constitution with power to issue writs of prohibition," it is my duty to entertain jurisdiction of the subject-matter before the Court.

The Court has not, in express terms, decided the point, but their opinion clearly indicates, I think, that the Circuit decision was sustained alone upon the technical ground above mentioned. A proper respect, therefore, to the judgment of that Court requires me, contrary to my former decision, to entertain jurisdiction of the case now made, the technical objection no longer existing. I may be mistaken in regard to the true intent and scope of the decision of the Supreme Court, but I have the satisfaction of knowing that the Court may review my decision, and correct the error, if any; and that, in no event, can any permanent injury be sustained by any one.

Having thus arrived at the conclusion that this Court has jurisdiction of the subject-matter, it remains to state my reasons for concluding that the pleadings and proceedings in these cases present a proper case for the exercise of the power to grant the writ prayed for. This question turns upon the...