Sutton v. Town of Fort Mill

• Court: South Carolina Supreme Court
• Citation: Sutton v. Town of Fort Mill, 171 S.C. 291, 172 S.E. 119 (S.C. 1933)
• Decision Date: 08 December 1933
• Docket Number: 13730.
• Parties: SUTTON et al. v. TOWN OF FORT MILL et al.

172 S.E. 119

171 S.C. 291

SUTTON et al. v. TOWN OF FORT MILL et al.

No. 13730.

Supreme Court of South Carolina

December 8, 1933

Appeal from Common Pleas Circuit Court of York County; W. H Townsend, Judge.

Suit by Mrs. Alice E. Sutton and another to enjoin Town of Fort Mill and others from levy and sale of property. Temporary injunction granted, and defendants appeal.

Affirmed.

Hart & Moss, of York, for appellants.

Hemphill & Hemphill, of Chester, and W. B. Mack, of Fort Mill, for respondents.

W. C COTHRAN, Acting Associate Justice.

Prior to the commencement of this action, the town of Fort Mill through its treasurer, placed in the hands of the chief of police of said town an instrument, in writing in the form of a tax execution, requiring the collection from the plaintiffs herein of the sum of $2,180.43 by levy and sale, if necessary, of the real estate of the plaintiffs as described in the instrument. This was on February 24, 1933.

On April 17, 1933, this action was brought; the object being an injunction against the town to prevent the contemplated levy and sale. Upon a rule to show cause why a temporary injunction should not be granted, the circuit judge passed an order granting the temporary injunction, and from that order this appeal is taken.

The three exceptions presented by the appealing town embrace the single question as to the correctness of the order of the circuit judge in granting the temporary injunction. It will therefore be necessary to review some of the facts in order that a proper understanding of this issue may be presented.

The town of Fort Mill wished to improve White or Depot street, both names being applicable to the same street, by paving the same, and to this end passed an ordinance on April 19, 1923. The ordinance conformed to the statutory requirements, and was in all respects regular. The street was paved, and later demand was made for payments of the assessments. At the present time, we are not concerned with the reasons set forth in the complaint as to why these assessments should not be paid, all of which will be fully presented when the case is heard on its merits. The sole question is whether or not the temporary injunction should have been granted.

The contention of the town is that the only remedy which the plaintiffs had was to pay the amount of the assessment, under protest, and bring suit to recover. The town also contends that the paving assessment is in the nature of a tax, and that, under the law, an injunction cannot be issued to prevent the collection of a legal tax. These contentions are founded upon Sections 2845, 2846, and 2847 of the Code.

The contention of the plaintiffs is that the paving assessment is not a tax and that the provisions of the aforesaid sections of the Code have no application. They further contend that injunction is not only the proper remedy, but is their only remedy.

Many cases have been brought to this court relative to payments of assessments under protest, followed by suits to recover, but the point seems never to have been raised before that such is not the proper remedy. Such was the procedure in Wesley M. E. Church v. Columbia, 105 S.C. 303, 89 S.E. 641; Ballentine v. Columbia, 129 S.C. 410, 124 S.E. 643; Platt v. Columbia, 131 S.C....