23 S.C. 70 | S.C. | 1885
Lead Opinion
The opinion of the court was delivered by
Certain townships in the County of Anderson, under an “act to charter the Savannah Valley Railroad Company,” passed March 12, 1878 (16 Stat. 435), and other acts amendatory thereto approved December 24, 1878 (16 Stat., 816), and December 24, 1880 (17 Stat., 418), voted a subscription to said road. The appellant, Chamblee, and twenty-six other land owners and taxpayers in these townships, refused to pay their portion of this subscription. They were published as “delinquent taxpayers” and their lands were advertised to be sold by the auditor and treasurer, with a penalty of fifteen per cent.
The appellants applied to his honor, Judge Wallace, for an injunction, which was granted temporarily until the case could be heard on its merits. The case was afterwards heard by his honor, Judge Witherspoon, who decreed adversely to the appellants, on the ground that, the assessment and levy made upon appellants’ property being made to collect taxes, he had no jurisdiction under section 269, General Statutes, 1882, and having no jurisdiction “neither the constitutionality of the acts of the legislature referred to above, nor the liability of the conduct of the defendants, could be considered or determined by him.” He, therefore, ordered and adjudged that the temporary injunction be dissolved and the complaint be dismissed. Hence the appeal.
Three questions have been discussed in the appeal. First. The appellants deny the constitutionality of the act of March 12, 1878, and the acts amendatory thereto, chartering the Savannah Valley Railroad Company, under which the subscription was made, alleging that it is in violation of art. II., § 20, of the constitution of this State, “in that its title is defective.” Second. They deny that the assessment and levy made by the defendants were for the purpose of collecting a tax in the sense of section 269, General Statutes, 1882; and Third, they deny the constitutionality of said section 269, which forbids the courts and judges of this State from granting any order or process of any kind staying the collection of taxes, whether said tax is legally
Inasmuch as the Circuit Judge made no ruling upon the first question, i. e. the constitutionality of the act chartering the company, we do not regard that question as before us, .as we can only review such questions of law as may be adjudged and determined below. In the absence of any ruling by the Circuit Judge, no question can arise in this court. We have not, therefore, considered this first question, it being put aside as not necessarily arising in the appeal.
Second. Was it error in the Circuit Judge to hold that the assessment and levy upon appellants’ property was for the collection of taxes, and on that account subject to the provisions of section 269, General Statutes, 1882, which, as we have seen, inhibits injunction and all other process issuing from the courts, intended to stay such collections? This is a grave question and one not free from doubt, but in our opinion the Circuit Judge was correct in his ruling. It is admitted in the argument of appellants’ counsel, that “ if the assessment, levy, and advertisement of appellants’ property is for the purpose of collecting a tax, it is clear that under section 269 the Circuit Court is expressly forbidden to grant any order, writ, or process of any kind whatsoever, staying or preventing the collection thereof, whether such tax is legally due or not.” It is also said in the argument that the provisions of this section are wise, sustained by good authority, and grounded in good sense. Because it is better that the taxpayer, if he conceives the taxes to be unjust or illegal for any cause, should pay them notwithstanding, under protest, and then bring an action against the county treasurer for the recovery thereof, as the act allows.
But it is urged that this is no tax, and consequently that section 269 does not apply, and many authorities are referred to as defining and determining what constitutes a tax; and the conclusion reached is, that a tax can only be legally raised for a publie purpose, for the proper needs of government, and for a public use; and it is urged that this assessment not being for a public use, it is not a tax in the sense of section 269, supra. There can be no question as to the soundness of this principle; and it is con
It should be remembered in this connection that the object of this section was not to deprive the taxpayer of all remedy in the event that the tax levied should prove to be illegal, nor to enforce the payment of an illegal tax, without remedy, as well as a legal one, but its purpose was simply to postpone the question of illegality to a subsequent proceeding, thereby relieving the tax gatherer from responsibility and preventing delay. It thus assumed, in the first instance, the legality of all taxes imposed by an act and forbade the courts from inquiring into that question, upon proceeding by injunction to stay their collection. The act may seem harsh and imperious, and in some instances may be oppressive, but is it not vindicated by the necessities of government, and the importance of public interests, which concern all, and which rise higher than mere personal and private affairs ? Be this as it may, however, the meaning of the act cannot be misunderstood. It inhibits the courts in no doubtful language from stopping the collection of taxes, whether legal or illegal, and therefore where-ever and whenever a tax is being collected, it is present to shield the tax gatherer.
What then is a tax ? is the question. Can there be no tax but a legal one? A tax, in general terms, may be defined to be a pecuniary burden assessed upon the citizen, to be levied upon his property and collected under laws enacted for that purpose. It
The question, then, below and now here is, was the burden ■from which the appellants seek relief imposed upon them as a tax? The answer to this question is plain and free from doubt. In the act of March 12, 1878, chartering the railroad company, and the amendments thereto, it is styled a tax — a railroad tax. The county auditor is authorized and required ’ to assess it annually on the property of citizens as a tax. It is required to be entered in the tax books as a tax. By the joint resolution of February 20, 1880, the president and directors of the road are empowered to"direct its collection as a tax ; and, finally, the general State tax machinery is made use of in its collection, with all the incidents and appliances employed in the collection of all other taxes, State and county.. Under these circumstances, and in the face of section 269, assuming it to be constitutional, the Circuit Judge was not required to enter into the investigation of the question, whether this imposed tax was for a public or private purpose, and therefore whether legal or illegal.
This brings us to the third question. Is section 269 constitutional ? It is urged that it is not, because it is in violation of sections 4 and 15 of article IV. of the State constitution. Now, it is conceded that these sections do give to the Supreme and Circuit Courts of the State respectively full power to issue writs of injunction, and the other writs therein mentioned. It is also conceded that the constitution is higher than any act of the general assembly, and therefore when they conflict the act must give way. But the question here is, does the act under consideration conflict with either of these sections when properly understood ? Has the legislature attempted by this act to curtail or limit the constitutional power of the courts in this respect? This must
Section 4 says, the Supreme Court * * * shall always have power to issue writs of injunction, mandamus, &c. Section 15 provides that the Court of Common Pleas * * * shall have power to issue writs of mandamus, prohibition, &c. Not that these writs shall remain inviolate, as is said of the right of trial by jury — not that they shall never be suspended except in certain contingencies as is provided in reference to habeas corpus — but simply that the courts should have the power to issue them when, of course, it is proper and legal that they should be issued. The framers of the constitution knew full well how to perpetuate and fix a right beyond the reach of all attack, either from the legislature or any other power, when they so desired, as is shown by the provisions above referred to in reference to the right of trial by jury and the writ of habeas corpus, and also by many other provisions found in the bill of rights securing rights to the people.
Besides, what reason could there have been why these special writs should have been placed under the guardianship and protection of the constitution more than any other modes of relief? They were certainly not more important, more effective, nor in
Independent of all this, however, we have two cases decided by our OAvn court, which, while they remain of force, are direct and conclusive on the question. State v. Treasurer, 4 S. C., 520, and State v. Gaillard, 11 Id., 309. It is true, the first case was decided by a divided court, Chief Justice Moses dissenting, and in the second Mr. Justice Mclver concurred only because he felt himself bound by the first as authority, at the same time declaring that if the question Avas res integra, he could not concur. The dissenting views of íavo such eminent jurists, when the question has come up again, are well calculated to make us pause to review the ground upon Avhich these cases stand, but in such review we must remember how important is the doctrine of stare decisis in the administration of justice, and how ruinous also is uncertainty and vacillation. And unless in such revievv the error is apparent, manifest, and dangerous in its tendencies, it is better to yield than to overrule.
It is the judgment of this court that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. As I cannot concur in this judgment, its importance makes it proper that I should state briefly the reasons for that dissent.
The lands of a number of the citizens of Anderson County, residing in the townships of Yarennes, Hall, Dark Corner, and Centreville, of that county, were levied and advertised for sale under some process in the nature of a tax execution issued by the treasurer of the county, to enforce the collection of certain assessments upon a subscription voted by a majority of the electors of the said townships respectively, to aid in the construction of the Savannah Yalley Railroad. The plaintiff in this action, being one of those whose lands were advertised, instituted this action in behalf of himself and a number of others in the same condition against the treasurer and auditor of the county and “The Savannah Yalley Railroad Company” to restrain and enjoin the sale of their lands under the process aforesaid, alleging that they never authorized the said subscriptions; that thei;e was no law, or tax levied pursuant to law, to authorize the said levy and sale; that the charter of the company and the whole proceedings were irregular and void, and the acts under which they were instituted unconstitutional. The defendants answered substantially that all the proceedings were regular and authorized, but insisted that the court could not, under any circumstances, grant the relief prayed for, but was prohibited from doing so by the act of December 24, 1878, entitled “an act to facilitate the collection of taxes,” reenacted as sections 268 and 269 of the General Statutes.
The case was heard by Judge Witherspoon, who dismissed the complaint, saying: “I am constrained to conclude and decide that the assessment and levy upon plaintiffs’ property was made by defendants to collect taxes as contemplated in section 269 of the General Statutes, and that the collection of said taxes by levy and sale of plaintiffs’ property cannot be enjoined by this court under said section. This court having no jurisdiction in the premises, neither the constitutionality of the acts of the leg
From this judgment the plaintiffs appealed on various grounds, but for our present purpose it will not be necessary to set out any but the following:
“Because his honor erred in holding that the township assessments or subscriptions levied or assessed on plaintiffs’ property in aid of the Savannah Valley Railroad were taxes.
“Because his honor erred in holding that' the assessment and levy ffpon plaintiffs’ property were made by defendants to collect taxes.
“Because his honor erred in holding that the sale of plaintiffs’ property could not be enjoined under section 269 of the General Statutes.”
It is obvious that the merits of the case were never reached. Whether or not there were good grounds for the relief prayed for by the plaintiffs, we do not know, for that inquiry was cut off upon the view that the property was advertised for sale under an execution for the collection of taxes, and the enforcement of such an execution, no matter whether irregular, illegal, or unauthorized, could not be enjoined by the court under section 269 of the General Statutes, which, among other things,, provides as follows : “There shall be no other remedy in any case of the illegal and unlawful collection of taxes or attempt to collect taxes' * * other than that herein provided. * * * And no writ or process of any kind whatever, staying or preventing any officer of the State charged with a duty in the collection of any tax, whether such tax is legal or not, shall in any case be granted by any court or the judge of any court; but in all cases whatever the person against whom any tax shall stand charged upon the books of the county treasurer, shall be required to pay * * and thereupon shall have his remedy under the provisions of the next preceding section,” &c. (which will be adverted to hereafter).
As this provision of the statutes apparently lay in the way of the plaintiffs, before the merits of their case could be considered, and the Circuit Judge had placed entirely upon it his decree dismissing the complaint, after the first argument this court ordered the question of the constitutionality of the aforesaid provision to
Section 15, article IV., of the constitution declares that “the Courts of Common Pleas shall have power to issue Avrits of mandamus, prohibition, scire facias, and all other Avrits (including injunction) Avhich maybe necessary for carrying their poAvers fully into effect.” And yet it is maintained that this positive declaration of the constitution may be absolutely nullified by an act of the legislature which provides that “no writ, order, or process of any kind whatever, staying and preventing any officer of the State, charged with a duty in the collection of taxes from taking any step or proceeding in the collection of any tax, whether such tax is legally due or not, shall in any case be granted by any court or the judge of any court,” &c. It seems that the view, sustaining this act in prohibiting judges from granting writs of injunction, sometimes called “the great preventative remedy of equity,” is, that the legislature has the right to determine in what cases the jurisdictional power conferred by
It is true that there are two cases in our books which have been cited as sustaining the constitutionality of the law. But although there are nominally two cases, there is in fact but one, that of State v. Treasurer (4 S. C., 529); for the other, State v. Gaillard (11 S. C., 309), was avowedly and entirely placed on the authority of the first. “When cases follow in line for no better reason than because they have a case to follow, the authority is to be found in the first decision and not by counting up the number in the line.” I must say that I cannot consider the law settled as announced in the case of State v. Treasurer, supra. It seems to me that the decision is not only unsupported by authority, but is of dangerous tendency. It was made in 1871, a time not favorable for intelligent, dispassionate judicial inquiry. As before stated, it was made by a divided court, Mr. Justice Willard delivering the judgment with the concurrence of Judge Wright, and Chief Justice Moses dissenting. It would now, however, accomplish no good purpose to again open the argument, which is well stated in the dissenting opinion of Chief Justice Moses in the case of The Treasurer as also in that of Mr. Justice Mclver in the case of State v. Gaillard, supra. I hope the case will be formally overruled.
But assuming that the prohibition upon the action of the courts, in regard to restraining the collection of State and county
’ It strikes me that cases of this kind are not within the purview of the sections which restrain the judges in the matter of collecting ordinary taxes, and to so construe them will be in effect to amend the law, and in doing so to extend it and go beyond the reasons upon which it was based and contrary both to its spirit and intent and the express terms of several of its provisions. It is perfectly manifest that the act was not passed with any special reference to the collection of railroad assessments, considered as taxes, for the first act upon the subject, that which was considered in the case of State v. Treasurer, was passed as far back as 1870, when there was not in the State, nor ever had been, and it could not be foreseen that there ever would be, such an anomalous thing as a township subscription for a railroad voted by a majority of the electors. The same may be said of the act of 1878, to facilitate the collection of taxes (16 Stat., 785). It is very well known that the object of that act was to prevent the payment of taxes in depreciated funds or money, such as the bills of the old bank of the State, or any other except those which the treasurer was by law authorized to receive, and without the remotest reference to closing the mouths of the judges in the matter of .collecting railroad assessments in the form of taxes. So that it is perfectly plain, that if the law restrained the judges from interfering with the collection of such assessments, it must be from the terms of the act itself being broad enough necessarily to cover such a case.
Are the terms .of ..the sections aforesaid so broad and explicit
Can any one read this section and affirm with certainty that the remedy therein provided was - intended to extend, and by fair construction does extend, to anything other than what are strictly State or county taxes, levied for the benefit of the government and payable into the State treasury ? These assessments were not made directly by the legislature for the benefit of the State or county government, but by the president and directors of the Savannah Yalley Railroad Company, who had by the joint reso
It seems to me that this.direction of the proceeds of the assessments, at once repealed, quoad these plaintiffs, all the latter part of the section quoted, which is italicized, and that they could not pay under protest and avail themselves of the alternative remedy therein provided, to pay and recover back from the State, if the tax should turn out to be illegal. I do not see that in such case where the money has been paid to the company the comptroller general could “issue his warrant for the refunding of the taxes so paid,” &c. If not, then there cannot be said to be an adequate alternative remedy for these plaintiffs, and that being (as stated by Judge Haskell in State v. Graillard) the only thing which makes the law constitutional, it would seem to follow that no practical adequate remedy being provided of which these plaintiffs may avail themselves, the act excluding the judges from inquiry, cannot extend to them, or, if so, that it is clearly unconstitutional. The act which stands only because it affords an alternative remedy, surely cannot stand in the way of these to whom it gives no such remedy. If the parties cannot in any event recover back the money from the State, then they have no adequate alternative remedy, and if the judges are excluded from even hearing their alleged grievances, they would be left absolutely remediless and at the mercy of a company having the assistance of the officers and the use of all -the machinery of the State.
But it is said that these assessments are taxes, and the prohibition is general, forbidding inquiry into the legality of any kind of a tax. It is true, that in the acts and joint resolutions of the legislature these exactions are sometimes called “subscriptions,” sometimes “assessments,” and sometimes “the Savannah Valley Railroad tax,” but it is quite certain that they are not State
Sections 268 and 269 are manifestly but parts of the same scheme: the first undertaking to provide an alternative remedy by the State refunding, if the tax should turn out to be illegal; and the second forbidding all “other remedy.” And the point is, that when the circumstances are such that the “other remedy” is not given by the first, it follows that the second, taking away that by injunction, does not apply. And in this case the exactions, whether they are called “taxes” or not, are ordered to be paid over to the railroad company in such way as to take them out of section 268, making the State liable to refund them, and in doing so deprives the parties of any adequate alternative remedy. If I am right in this, and it seems to me that there cannot be two opinions, then this decision certainly makes a great advance beyond what was decided in the cases of The Treasurer and of G-aillard, for in both of them the taxes being public State taxes, there was clearly the right to make the State refund, and for that very reason it was held that the act only “postponed” the question of illegality, leaving that to be determined in the “other remedy.” A Tennessee act of 1844 declares a deed'made in pursuance of a public “sale for taxes” prima facie evidence of
If it should be the decision of this court that section 269 must apply to this case simply because these exactions for a railroad are called “taxes,” without inquiring whether the parties are entitled to the alternative remedy against the State, it will indeed be a speedy realization of the fears of Chief Justice Moses expressed in his dissenting opinion in the case of The Treasurer: “This concedes an unlimited control to the legislature of the whole judicial magistracy of the State, which, in the end, might be so exercised as to suppress its entire authority. If it can declare in what ease a particular form of action shall be a remedy for an alleged complaint, and ignore its application to other cases, in which, at the adoption of the constitution, it was employed as a medium through which a wrong was to be redressed, may it not step by step disarm the courts of all their authority, and at last leave it but a tribunal to carry out the behests and mandates of the legislative will ? The power to tax is the most extensive and unlimited of all the powers which a legislative body can exert. It is without restraint, except by constitutional limitations. To tie up the hand that can alone resist its unlawful encroachments, would not only render uncertain the tenure by which the citizen holds his property, but make it tributary to the unrestrained demands of the legislature,” &c.
I think this court should now declare section 269 of the General Statutes to be unconstitutional; or if it is too late to do so, that it should declare that said section was never intended to apply to a case like this, where the provision for an alternative remedy against the State does not exist; and that the decree should be set aside and the cause remanded to the Circuit, to be heard like other cases, only upon the merits involved.
Judgment affirmed.
Concurrence Opinion
I concur, because the constitutionality of the provisions contained in section 269 of the General Statutes has been determined by authority to which I am bound to yield.