Thorne v. Seabrook

• Decision Date: 10 June 1975
• Docket Number: No. 20030,20030
• Citation: 264 S.C. 503,216 S.E.2d 177
• Court: South Carolina Supreme Court
• Parties: Thomas J. THORNE, as Chairman of the Charleston County Board of Assessment Control, et al., Plaintiffs-Respondents, v. Richard E. SEABROOK, Jr., as Chairman of Charleston County Council, et al., Defendants-Respondents, and Buckner Land Corporation, a South Carolina Corporation, et al., Defendants-Appellants.

Page 177

216 S.E.2d 177

264 S.C. 503

Thomas J. THORNE, as Chairman of the Charleston County Board

of Assessment Control, et al., Plaintiffs-Respondents, v. Richard E. SEABROOK, Jr., as Chairman of Charleston County

Council, et al., Defendants-Respondents,

and

Buckner Land Corporation, a South Carolina Corporation, et

al., Defendants-Appellants.

No. 20030.

Supreme Court of South Carolina.

June 10, 1975.

Young, Clement & Rivers and Shimel, Ackerman, Theos, Spar & Kaynard, Charleston, for defendants-appellants.

Buist, Moore, Smythe & McGee, Charleston, for plaintiffs-respondents.

Sinkler, Gibbs, Simons & Guerard, Morris D. Rosen and Ben Scott Whaley, Charleston, for defendants-respondents.

BUSSEY, Justice:

This is a declaratory judgment proceeding instituted for the purpose of obtaining a declaration as to whether or not Act No. 415 of the 1973 Acts of the General Assembly (58 Stat. at Large, p. 723) is constitutional. The plaintiffs are those officials charged with the responsibility for the assessment and collection of real property taxes in Charleston County. The defendants include some governmental entities in Charleston County that collect and spend tax money and some taxpayers of Charleston County who are affected by the Act in controversy.

Such Act provides, inter alia, that in Charleston County every new building, addition, renovation or other improvement to real property shall be returned for taxation, and shall be taxable, as of the first day of the calendar month after it is first occupied. It thus provides for a pro rata taxation of improvements to realty in Charleston County during the year of initial occupancy. The plaintiffs and the governmental defendants assert that the Act is constitutional, while the taxpaying defendants assert that it is unconstitutional. The taxpaying defendants appeal from an order of the circuit court granting a motion of the plaintiffs for summary judgment and holding the Act constitutional.

Section 65--1620 of the 1962 Code, as amended, is statewide in its scope and applies to all counties and to all land and new structures erected thereon. It reads as follows:

'Returns of new improvements.--Each owner of land on which any new structures have been erected which shall not have been appraised for taxation shall list them for taxation with the county auditor of the county in which they may be situate on or before the first day of March next after they shall become subject to taxation. No new structure shall be listed or assessed until it is completed and fit for the use for which it is intended.'

The Act, approved and effective July 10, 1973, undertakes to apply a different rule for returning property in Charleston County. We quote the relevant part:

'Section 65--1620.4. (1) Notwithstanding the provisions of Section 65--1620, in Charleston County every building, addition, renovation or other improvement to real property shall be returned for taxation to the county auditor, and shall be taxable, as of the first day of the calendar month after it is first occupied.'

The effect of the Act is to require landowners in Charleston County to return for taxes the improvements on their land on the first day of the month following occupancy, and pay taxes thereon for a fractional part of the year. Other landowners in South Carolina under similar circumstances are not required to return improvements and pay taxes on them until the following calendar year. Under other sections of the code property becomes subject to taxation at the beginning of the fiscal year in which the tax is levied. See, inter alia, sections 65--2701 and 65--2702.

The appellants assert that the Act is violative of numerous constitutional provisions but in our view of the matter it is necessary to consider only one challenge to the legislation. We are convinced that the Act is clearly violative of Article 3, section 34(IX) of the South Carolina Constitution which in pertinent part reads as follows: 'In all other cases, where a general law can be made applicable, no special law shall be enacted: * * *.'

The provisions of section 65--1620 of the code make it clear not only that a general law can be made applicable but that the General Assembly has enacted a general law providing when new structures erected upon land in South Carolina shall be listed or assessed for taxation. The lower court in concluding that the Act was not in violation of Article 3, Section 34(IX) relied upon the cases of Townsend v. Richland County, 190 S.C. 270, 2 S.E.2d 777 and Mills Mill v. Hawkins, 232 S.C. 515, 103 S.E.2d 14 (1957). The respondents in their brief additionally rely on the case of Morris v. Scott, 258 S.C. 435, 18. S.E.2d 28. We do not regard any of these authorities as being in point or particularly helpful. The authorities relied upon by the respondents support the proposition that special legislation relating to the fiscal affairs of a county is permissible and it is argued that the Act under attack here relates only to the fiscal affairs of Charleston County and is therefore constitutional.

It is, of course, true that the Act, to an extent, has an effect upon the fiscal affairs of the county but it does not, we think, relate only to such fiscal affairs. The respondents in resisting attack on another constitutional ground argue that the Charleston County Board of Assessment Control in assessing property for taxes is not performing, strictly speaking, a function of local government but is performing a state function instead. It is pointed out that but for the one ex officio member, members of the Board are appointed by the Governor. See code sections 65--305 et seq. While its actual functions are restricted to the area of Charleston County it is pointed out that the Board is independent of County Council, Act No. 753 of the Acts of 1966 (54 Stat. at Large, p. 2031). Whatever the nature of the function performed by it, such has an effect upon governmental entities other than the county, and hence the Act does not relate only to the fiscal affairs of Charleston County.

Article 10, section 1, provides in pertinent part as follows:

'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, real, personal and possessory, * * *.'

Article 10, section 13, is as follows:

'One assessment for all taxes.--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 thereof.'

The quoted provisions of the Constitution are persuasive that the assessment of property for taxation is a function of the state government rather than one of local government.

In principle, the instant case cannot, we think, be distinguished from the cases of Salley v. McCoy, 182 S.C. 249, 189 S.E. 196, and Webster v. Williams, 183 S.C. 368, 191 S.E. 51. In Salley the court held unconstitutional an act applicable only to Orangeburg County, which contrary to the general law on the subject sought to deprive the Treasurer of Orangeburg County of fees for the issuance of tax executions to which he was entitled under the general law. In Webster, another Orangeburg County case, the court held unconstitutional an act which provided, contrary to the general law on the subject, an additional penalty for late payment of taxes.

'As was said in Thomas v. Macklen, 186 S.C. 290, 195 S.E. 539, 542,

'If it must be assumed, merely because the statute has been enacted, that the Legislature had information showing that there was a necessity for such legislation with reference to the particular locality, it would follow that all legislation local in form must be upheld, however general the nature and subject-matter of such legislation might be. Such a rule of construction would be contrary to the mandatory character of the constitutional provisions we are considering."

See also Shillito v. City of Spartanburg, 214 S.C. 11, 51 S.E.2d 95.

Being convinced that the Act is clearly unconstitutional as being violative of Article 3, section 34(IX), there is no occasion or reason for this Court to pass upon the contention that it is also violative of Article 8, section 7 of the Constitution as recently amended. Hence, under the settled principle that a court should not pass upon a constitutional issue unless doing so is necessary to a decision, we expressly refrain from any holding as to the applicability, if any, of Article 8, section 7 to the Act here under attack. The Act, however, being clearly violative of Article 3, section 34(IX), the judgment of the court below is hereby,

Reversed.

LEWIS and NESS, JJ., concur.

MOSS, C.J., and LITTLEJOHN, J., concur in separate opinion.

LITTLEJOHN, Justice:

Heretofore the opinion which follows was proposed to the Court as the proper disposition of the issues before us. A majority of the Court having now elected to reverse the case on other grounds, I file my proposed opinion in the form of a concurring opinion, setting forth my views as to the more appropriate disposition of the case.

The plaintiffs (respondents) are the officials of Charleston County charged with the responsibility of assessing and collecting real property taxes. This action was initiated pursuant to the Uniform Declaratory Judgments Act § 10--2001 et seq., Code of Laws of South Carolina (1962), for the purpose of determining the constitutionality of Act No. 415 of 1973 of the General Assembly (The Act).

The defendants in this action are a group of Charleston County governmental entities that collect and spend the tax money, and a group of real estate taxpayers of Charleston County who are affected by the Act. The governmental agency defend...