Cleveland v. McCravy

46 S.C. 252 | S.C. | 1896

The opinion of the court was delivered by

Mr. Justice Pope.

In July, 1892, under a bill in equity in the United States Circuit Court for the District of South Carolina, one H. M. Comer was duly appointed by such court the receiver of the plaintiff corporation, under which appointment the said H. M. Comer, as such receiver, possessed himself of all the property of said railway. On the 2d day of February, 1893, the said railway company having failed to pay the State of South Carolina -the taxes legally assessed against it, the defendant, as sheriff of Uaurens County, in the State aforesaid, by virtue of sundry tax executions to him directed, against the property of said railway company for its unpaid taxes, entered upon the premises in the possession of the said receiver and seized and took possession of two engines and a train of box cars as, and which were, the property of the said railway company, so that the said two engines and train of box cars could not be used for railroad purposes. That thereupon, on the 4th day of February, 1893, the said H. M. Comer, as receiver as aforesaid, offered to pay unto the defendant, as sheriff as aforesaid, all the taxes and penalties due by such railway company on its unpaid taxes; but the said defendant refused to release his levy upon such property unless he was paid, in addition to such taxes and penalties, his commissions of five per cent, upon all such taxes and penalties, which amounted to $377.16. This latter payment (five per cent, commissions to the sheriff) was made under solemn protest of said H. M. Comer, as receiver, and was only made in order to obtain the use of said two engines and the train of cars levied upon as aforesaid. On the 4th day of June, 1893, the plaintiff, John B. Cleveland, was duly appointed the successor of the said H. M. Comer as such receiver by the United States Circuit Court for the district of South Carolina, and in the order of his appointment it was provided that such John B. Cleveland, as such successor, as receiver as aforesaid, should have the right, and it was made his duty, to sue for and recover any sum of money due by others to the corporation of which he was receiver. Thereupon, on the 17th day of January, 1894, the said John B. Cleveland, as receiver, began his action against the said George S. McCravy, as sheriff as aforesaid, as defendant, to recover the said sum of $376.16, and for $4 besides, for some costs he claimed were improperly collected at the same time the said sum of $376.16 was paid.

The defendant, as sheriff, in his answer, admitted the levy by him upon the alleged railroad property, and that he refused to release the levy thereon unless and until such $376.16 and $4 was paid, justifying his conduct by reason of the mandate of the tax execution to him directed, and that such sum of $376.16 and $4 were due him under the provisions of the laws of the State of South Carolina.

The cause came on for trial before his honor, Judge Earle, and a jury, and resulted in a verdict for the plaintiff for $380.16. After entry of judgment thereon, the defendant appealed to this court. The judge’s charge to the jury and the grounds of appeal will be set out in the report of the case. All of the exceptions are confined to allegations of error in the judge’s charge.

First. It is contended by appellant that the sheriff in this instance was entitled to collect five per cent, commissions on all moneys collected by him under tax executions, whether he has made a legal levy or not.

1 It should be remembered that the sheriff does not collect money on tax executions by virtue of his office as sheriff; it is only because, under the tax laws, he is so empowered that he can do so, for it was in the power of the legislature, if they had seen proper to do so, to delegate this power to any other official or individual. So, therefore, it seems to us that the fees and commissions, as other compensations, of the sheriff, in reference to the collection of taxes under tax executions, must be gathered from our tax laws. Now, when we turn to these laws, we find section 348 of the civil statute laws of the State is in these terms: “The treasurer for every such warrant” (the word “warrant” and the word “execution” are interchangeable in the statute) “shall have from such defaulter $1; and the sheriff shall take from such defaulter the following fees in the execution of his office, to wit: For serving each warrant, $1; besides mileage at the rate of five cents for each mile actually traveled in executing the warrant; for advertising sale, twenty-five cents; for making sale and executing deed of conveyance and putting purchaser in possession, $3; and for all sums levied as aforesaid, five per cent.: Provided, That the printer’s charges for advertising shall not exceed fifty cents for each tract of land and twenty-five cents for personal property, levied on under such execution; and the sheriff is prohibited from demanding or collecting any greater sum therefor than is-here allowed; and neither the sheriff nor county treasurer shall receive fees upon milla bona returns.” Now it seems to us quite clear that the services contemplated to be -rendered by the sheriff under this section are specific: 1. A. service by the sheriff of the warrant or execution. 2. Advertising sale, twenty-five cents. 3. Making sale, executing deed, and delivering possessions. 4. And “for all sums levied as aforesaid, five per cent.” And it would not be legal for the sheriff to collect for either one of the four items unless he had rendered a specified labor. The use of the words, “levied as aforesaid,” clearly point to the three preceding requirements. Of course, such services would have to be legally rendered, for such costs to be incurred by a delinquent taxpayer.

2 Second. We find no difficulty in reaching the conclusion that the sheriff had no right to levy those tax executions, (or any other executions, for that matter,) on this property in the hands of the receiver. When any court of competent jurisdiction takes possession of any res, every other court is ousted of jurisdiction over that res as long as such possession is maintained. Voorhies, Miller & Co. v. Hurst, Purnell & Co. et al., 46 S. C., 114. Fven in the matter of taxes to be collected, such res is protec ted against direct proceedings to collect the same, if in the hands of a receiver. Judge Earle, with his usual clearness, has stated the law correctly here. See In re Tyler, 149 U. S., 164.

3 Nor do we see any benefit which can accrue to appellant under his third ground of appeal. The only way the sheriff could collect the five per cent, for his collections on tax executions would be under section 348, supra, for certainly, under the general law of the State regulating sheriff’s fees, he would not be allowed anything like five per cent, commissions on the large amounts collected by him from this railway company, as we have just held, in considering the first ground of appeal, that the language used in section 348, supra, restricts his charges of five per cent, to moneys collected by a sale of property under the levy of a tax execution.

As to the fourth ground of appeal, it was not error of the Circuit Judge to make the charge he did, as pointed out in this exception. The issues were virtually narrowed down to legal issues, so far as defendant’s testimony was concerned. What was left to the jury to do but find for the plaintiff, if they believed plaintiff’s testimony?

4 Nor do we find any difficulty in holding that the plaintiff could maintain this action, notwithstanding more than thirty days had expired. These commissions, collected and paid under compulsion, did not go into the State treasury, but, if legal, belonged to the defendant, as sheriff. We know of no law that limits the right of action for moneys so collected by an officer as his fees to the thirty days immediately succeeding such collections.

As to the sixth ground of appeal, we cannot sustain it. Of course, all persons who have a regard for the nice performance of civil duty, recognize the propriety of corporations paying their taxes with the same promptitude as private citizens — for all should pay for the protection of the government to them, and no one is disposed to attach any blame to the very worthy sheriff, in his effort to discharge a duty he understood the law had placed upon him in his official character; but, at the same time, if the views we have hereinbefore announced forbade any attempt on his part to levy these tax executions upon this railway property while in the hands of the United States Circuit Court for the district of South Carolina, and that is the result when such court appointed a receiver of this railway property, then it was an illegal act of the sheriff to so levy those tax executions; and when the receiver paid these commissions under protest, it left that question open. The seventh ground of appeal is too general to be considered.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.