DeSoto Gold Mining Co. v. Smith, 27 S.E. 1

DeSoto Gold Mining Co. v. Smith

27 S.E. 1

S.C.

1897

Check Treatment

The opinion of the Court was delivered by

Mr. Justice Pope.

This is an action begun by the plaintiff against the county treasurer of Chesterfield County, in this State, to recover certain tаxes paid by the plaintiff, under protest, within thirty days thereafter, as provided for in certain ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cases by an act of the General Assembly of this State. The complaint sets out, substantially, these allegations: That the Brewer Gold Mine Company, a corporation doing business in mining for gold in Chesterfield County, *190in this State, early in the year 1894 made its return of its property fоr taxation, but in such return failed to state the value of the products of said mining operations for the twelve months preceding. That in accordance with the requirements of the county board of assessors for Chesterfield County, whiсh required that the Brewer Mining Company should place some value on the products of said mining operations, sаid Brewer Mining Company returned the same at value of $3,271.90, but said board of assessors raised the same to $130,876. That, on application, the comptroller general of the State reduced this to $39,671. In addition to that, the county auditor аdded 450 acres of laud, valued at $1,350. That the taxes assessed on said property was $706.42, of which $653.42 was illegal. That the Brеwer Mining Company became insolvent during the early months of the year 1894, and that on salesda}^ in August, 1894, all its plant, including its lands and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍mines, were sold by the sheriff of Chesterfield County, under sundry .executions in his hands against said Brewer Mining Company, and purchased by Mrs. Heаrst, who afterwards, under a deed with full warranties, conveyed the same to the plaintiff, a corporation crеated under the laws of the State of California, but having an office in said Chesterfield County, in the State of South Carolinа. That the plaintiff, on account of the Brewer Mining Company owning no property, but being hopelessly insolvent, on аccount of the assessed taxes for $706.42 being a lien on the property sold by the sheriff as that of the Brewer Mining Company, and to prevent a sale thereof did, on the day of March, 1895, pay the said taxes under protest, and now brings this action, on the 30th day of March, 1895, to recover from the defendant, as treasurer of Chesterfield County, that part of the $706.42 so paid which was illegally assessed, to wit: the sum of $653.42.

At the hearing before his.Honor, Judge Watts, when the complaint wаs read, the defendant demurred thereto, on the ground ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the complaint failed to state a cause of аction against the defendant. This demurrer was sustained. Bet *191the order passed by Judge Watts be incorporated in the rеport of the ease, and also the grounds of appéal therefrom. The primary question is, has the plaintiff statеd a good cause of action in his complaint, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍admitting all the allegations, for the time being, to be true? It is evident thаt no matter how unjust the assessment of taxes against the Brewer Mining Company may be, that the payment of said taxes under protest by the DeSoto Gold Mining Company, another and entirely différent corporation from the Brewer Mining Company, cannot of itself operate to give the plaintiff a good cause of action against the defendant, for confеssedly this right of action is bottomed upon the provisions of the act of the General Assembly of this State entitled “An act to provide for the assessment and taxation of property,” XVII. Stat. at Large, 983, which are now a part of thе Revised Statutes of this State. If the provisions of law referred to fail to secure a right of action in any one else other than the person in whose name the taxes are assessed, who shall pay taxes under protest, then no relief can be afforded under said act. Now, let it be borne in mind that these taxes were assessed against the Brewer Mining Company, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and became a charge, upon its property long before the .plaintiff existed as a corporation. The lien for these taxes existed upon the property of the Brewer Mining Company befоre a sale was made of its property by the sheriff. Let us see what provisions under the statute referred to exists in favor of one who pays taxes under protest. It will be found embodied in section 340 of the Revised Statutes, and is in these words: “In any case in which county, State or other taxes shall be charged against any person upon the books of the county treasurer, and he shall claim payment of such taxes, or shall take any steps or proceedings to collect the same, such person, if he conceive the same to be unjust or illegal for any causе, shall pay the said taxes, notwithstanding under protest, in such funds, &c. * * * The person so paying said taxes may at any time within thirty days аfter making such payment, but not afterwards, bring *192an action against the said county treasurer for the recovery therеof in the Court of.Common Pleas for the county in which the taxes are payable.” * * * The plain meaning of the languаge employed by the legislature and just quoted is, that the person in whose name the taxes are listed shall have thе right to pay the same under protest, and then test by suit their legalitjc It nowhere appears that this right to bring suit is extended to any other person than the person'in whose name such property is listed on the tax books. We cannot extend this right to any other person than such listed owner, no matter how strongly the equities may appeal to us. The legislature has so written its will in this matter, and we cannot go beyond such expressed will. The Circuit Judge took this view, and in doing so we arе obliged to hold that he committed no error. This being our conclusion, all other questions set up in the appeal become abstractions, and cannot be fairly said to arise.

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