*1 such disci- Board should not be confirmed and ings Court deem may appropriate. order issued plinary issued. no return to the rule so has made Respondent to the a letter written by respondent It from appears and that he is Board he has a of alcoholism that problem event, the record sus- In not law. practicing any presently that has tains the of the Board respondent accepted findings his monies from clients and failed to out carry professional alcoholism incident thereto. Whether due to responsibilities causes, such mis- or other these incidents show professional as to the recom- justify conduct the part respondent mendation the Board that he be indefinitely suspended from the law. practice be, he is, therefore, Wooten

It ordered that Harley from of law in is, the practice hereby indefinitely suspended surrender to the State, and he forthwith Clerk this heretofore issued to him. this the certificate to Court practice CORPORATION, Respondent, v. The PREMIUM INVESTORS al., Appellants et TAX SOUTH CAROLINA COMMISSION 642) (193 (2d) S. E. *2 McLeod, Gen.,

Messrs. Daniel R. Allen, Jr., Atty. Joe L. Jr., Gen., G. Lewis Asst. Argoe, Columbia, Attys. Appellants, *3 M. Jr., Harry Columbia, Lightsey, Esq., Respond- ent, 3, 1973. January

Littlejohn, Justice: herein,

Investors Premium Corporation, plaintiff this action The South brought against Carolina Tax Com- defendant, mission, under South Carolina Code of Laws § 65-2662 to recover documentary taxes (1962) stamp paid under in the amount of $12,107.62. This amount protest notes, taxes due on represents documentary stamp executed by various borrowers favor of to funds plaintiff procure to insurance pay premiums, and due powers attorney, executed incident to the notes assist in to in case collecting of default. in his trial order that the found several loans judge contained,

were which by evidenced notes promissory among He further provisions, found that attorney. the notes subject were to the note promissory documentary Code, tax stamp 65-688 of but imposed § were not to the powers attorney of attor- subject tax ney 65-690 of documentary stamp imposed by § Code. The trial it was concluded that not the intent judge “a tax on documents con- which legislature impose tain limited which are incidental powers document, where such primary purpose particularly document is already to a subject documentary stamp in another form.”

On appeal, plaintiff admits for the liability stamp involved, taxes due on the *4 whether, The issues in this involved are under appeal § Code, the 65-690 of the of attorney docu- powers require tax, and, so, if is the borrower or the lender mentary stamp liable for under 65-681 Code. payment §

The and an facts essential material to of understanding here are in be issues involved not legal dispute may stated as follows: is a The service set premium up

(1) plaintiff company 37-1301, et seq., under Code of Laws provisions § Carolina, 1962, as amended. of South lends to individuals (2) plaintiff funds to in- pay surance which are premiums, the borrower on repaid by an installment basis. transaction, Pursuant to the

(3) the borrower an signs insurance premium service which agreement, sets forth all conditions the loan. It is essentially note. promissory addition, In section 9 of the

(4) agreement reads:

“POWER OF ATTORNEY 9. Hereby constitute and irrevocably Investors appoint Premium Columbia, P. O. Box Corp., South Caro- lina, as in Fact my/our with Attorney an (coupled interest), with full of substitution to and direct require listed, cancellation of said insurance or policies renewal any thereof, or all rewrite receive sums to assigned Investors Premium to Corp. execute and deliver behalf of the forms, all documents, undersigned and notices relating listed in furtherance this policies and the agreement, said are directed to such companies hereby recognize any direction, or be the made requirement by same said my it, in Fact or for be Attorney any substitute such substitute named or expressly created law. sum Any operation received from an insurance shall be credited to the company hereunder, balance due and if there is any excess over the balance due it shall be to the paid insured. The insured shall remain liable for deficiency.” any Code, Section 65-681 of the amended,

(5) reads as follows: levied, shall be

“Imposition. collected paid —There bonds, of the several respect debentures cer- or tificates of stock and indebtedness documents, and other instruments, matters and mentioned things and described 65-682 to 65-684 and 65-688 65-690 or for or §§ §§ vellum, respect which parchment paper upon instrument, them, such matter or are writ- thing, any ten makes, issues, sells, or printed by who any person signs, *5 or for whose benefit

removes, them or or consigns ships sold, removed, made, issued, consigned are signed, use they in said sections.” taxes the several specified or shipped amended, reads of the 1962 Code 65-690 Section (6) as follows: au- of attorney granting of attorney.-

“Powers power —-A in of the some for on behalf act to do thority perform in the otherwise vested is not authority which grantor, cents.” be taxed fifty shall grantee, is whether the on this power The first appeal question the requires forth in section 9 agreement set attorney documentary stamp of a of attorney payment power of the Code. under 65-690 § section be no but that quoted There can question refers Plaintiff hereinabove, attorney. is a power his the in attorney” complaint; as a to it “power OF ATTORNEY” it as “POWER designates plaintiff calls it a itself; trial judge power the instrument order; it fits the such in his treats it as attorney in Black’s Law as defined attorney of a description power in the find no merit ed. We Dictionary, 1968). (4th that it is for the contention, counsel plaintiff, as argued of a restricted agency agreement more in the nature “really Likewise, there is little attorney.” than a true power the note incident to it is in the contention that purely appeal utilized. never be instances may and in most transaction same is included of attorney that the power The fact no is of significance. instrument with the note no attorney grants power that plaintiff argues is there- did not already the note grant which authority terms of the statute under the from the tax fore exempt of at- no can be doubt There (§ 65-690). note. not included authority additional torney grants hereafter by it can solve problem If disagrees, plaintiff section and relying of eliminating simply note. solely upon

The trial would look to the judge legislative intent to determine a if such limited power of should be attorney taxed.

This Court has dealt with the tax in documentary stamp case, several cases. In each has been characterized as a levied in being simply tax relation to an act done within State an making instrument. South Carolina Electric 407, & Gas v.Co. Pinckney, 217 S. C. 60 S. E. 851 (2d) Textron, Inc. v. 244 (1950); Livington, 380, S. C. 137 S. E. Textron, 267 386, In (2d) (1964). at supra, 137 270, S. E. at the Court (2d) says: “Liability pay stamp tax, thereof, and the amount as a rule determin general able from the form and face of the instrument in question.” statute,

In a construing be should language given its and ordinary without resort popular significance subtle and forced construction for the purpose its v. Co., Martin Nationwide Mut. limiting operation. Ins. 577, Textron, 256 S. 183 S. E. C. 451 (2d) (1971); supra. A court can neither nor construe a legislate statute which Finch, is clear. v. 310 F. Ferguson 1251 C. S. C. Supp. (D. 1970). has

The made no distinction legislature between what call “limited we might powers attorney” “gen eral If it had been powers attorney.” the legisla only tive intent that general be taxed it powers attorney could have so stated. It is common that a vast knowledge if not a vast percentage, are majority, powers of a limited nature. The intent of would the legislature ap and there is no pear plain room for construction. judicial We conclude that the insurance service premium agree- ment includes a taxable attorney. of who is liable for the tax must question hinge Code, 65-681 of the which sets up imposi §

tion of the tax and provides: levied, “There shall be collected ... and paid by any per- makes, issues, sells, removes, son who or signs, consigns made, . or use are . . benefit they them or for whose ships sections.” in said (Emphasis taxes the several specified added.) Brewer, C. in Brewer v. S. has said

Our Court “or” used the word E. that 129 S. (2d) (1963) alternative, one means ordinarily marks an statute are of the two, opinion not both. We the other of but alternative, must “or”, an while marking this statute is, That it a substitute. be construed as introducing also to the Tax of choice available does not set an alternative up canWe necessity. an alternative of Commission but allows alternative, must we yet in a find no purely equal *7 logic “or” and the alternative it to the some give significance intro- meant “or” as find the legislature We provides. the in the event holding pri- a substitute ducing taxpayer is liable mary impracticable. taxpayer that the insur of this Court It is therefore the ruling must instrument service agreement anee premium note, as a and (2) documentary stamps (1) have is the borrower primarily and that attorney, as a power the lender being of the taxes with liable for the payment liable. secondarily Code, for the provide et of the 65-681 seq.,

Section on notes and documentary stamps of both payment It is of attorney. on powers documentary stamps world, and common the banking lending knowledge record, in the that the it is an affidavit corroborated is for and must docu initially pay maker of a note liable a loan. before a lender will note tax mentary stamp process to a bor for a lender to make a loan It would be unusual The lender has rower who refused to affix stamps. is the loan unless the tax paid to refuse to make right token, a a similar one to whom power the transaction. By it unless the is submitted refuse may accept of attorney is on it. paid documentary stamp nor the does make the lender the statute not Though collector, it effec- a tax attorney recipient tually the tax imposes the lender in upon note, the case of a or the in the case grantee attorney, if such lender or grantee participates the transaction without having required payment.

From a practical it is standpoint, virtually impossible the Tax Commission to collect the tax from all borrowers or grantors. It is and is not practical too difficult for the Tax Commission to pursue matter by investigating records of the few lenders comparatively grantees. and/or No undue burden is placed the lenders upon gran- tees by them to see that the tax requiring is paid. alter- is native that the lender or Here, must grantee tax. pay the grantee of the did powers not require and, the taxes grantors pay accordingly, grantee liable.

The order of the lower court is reversed and judgment shall be entered favor of the Tax Commission.

Reversed.

Moss, J.,C. and Lewis Brailsford, JJ., concur. Bussey, J., dissents. :

Bussey, (dissenting) Justice Pertinent to the disposition this is the proper appeal *8 Commission, Tax from Fuller v. following language 128 14, S. C. E.S. 478: the relied the

“(W)here language to upon bring par- ticular or within law is is person subject the or ambiguous an ex- reasonably that would susceptible interpretation clude the taxed, or to be person subject the sought well- established rule that substantial general doubt requires any should be resolved and in against government favor 179], States v. Merriam S.U. taxpayer (United [263 69, 44 S. Ct. 68 L. Ed. In the 240). that application rule there other are con- general recognized principles which are and lend struction pertinent may controlling Double or taxation succession to the multiple upon weight. law, same is not favored in the and a construction property tax statute such double be imposes a that taxation will if not clearly required.” added.) avoided (Emphasis Di- Numerous cases collected in West’s South Carolina 245, Statutes, in Key under No. are accord with gest, that substantial doubt as to any legis- general proposition of a has be lative intent statute to resolved taxing against in favor of the and government taxpayer. It is also settled that there a always well quite pre a a double tax intent to sumption against legislative impose not a as that the courts will construe statute imposing or a double unless such intention is clear its terms from v. S. C. Tax Commis Wingfield by necessary implication. sion, 116, E. in 147 S. C. S. 854. The opinion this case cites and discusses numerous authorities accord with this proposition. mind, least, is, a most substantial my

To there to say intended the document doubt that the ever legislature a be both note promissory here involved should taxed as Therefore, I feel a conscientiously and as of attorney. correctly dissent. The majority opinion quite impelled involved, is here essen- that the agreement, states service nature note and that the essential tially being promissory course, document, is, of as a it taxable promissory are instrument aids to merely Other note. provisions note. of the promissory of the payment the enforcement alia, the holder security any the note assigns Inter which become dividends might unearned premiums all To or financed. the insurance policy policies under payable of the nature of partakes the service agreement this extent or default promissor breach Upon a chattel mortgage. law as to chattel mort- maker, under settled principles or dividends would unearned premiums to any title gages, of the instrument. See cases holder vest automatically Mort- Chattel Digest, South Carolina West’s collected one of the 162. The of attorney, No. Key gages, *9 numerous clauses in the service there agreement, put and obviously the sole incidental of purpose enabling the instrument, maker, holder of the default the upon by cancel the insurance and collect from insurer that to which the holder then has by Thus, the lawful title. while in nominally acting maker, fact for the in reality it is for itself to obtain of acting that to which possession it is entitled. lawfully

As brief, if this suggested of inci- respondent’s type dental contained power document, in a which is essentially other than a power attorney, the document to subjects taxation, double it would follow other logically many security instruments used in commercial fi- commonly transactions, nancial incidental would containing powers, likewise be subject double taxation. Could such possibly have been the intent of the General I most Assembly? seriously doubt it.

No case has been cited either directly point by appel- lants or A more case than respondent. point any nearly other disclosed research is that Personal by Finance Co. al., New v. York et Lyons Conn. A. (2d) 652. This case was decided under law York of New where the transaction involved A New particular originated. York forbade statute a finance to take from a bor- company rower confession of of attor- “any judgment any power that a the finance ney”, further violation provided loan would render the void and the company transaction The note uncollectible. borrowers executed a promissory and chattel which latter contained a pro- mortgage, lengthy default, vision to seize authorizing mortgagee, upon sell con- mortgaged personal property. mortgagors tended a in vio- that such was provision attorney, power statute, trans- lation of the New York thus rendering void, and action trial court so held. and held that

Upon Court reversed appeal, Supreme such not in sale was nature *10 York the New statute. and not violation of York law after default New out that under

Court pointed the absolute owner became the mortgagee of the mortgagor re- of redemption subject only right of the property, of sale and that under in the mortgagor, maining its and not own was selling property the mortgagee of mortgagors. as the agent decision as persuasive I this logical regard contained incidental, of attorney nominal power purely fact, not, of attor- a power here the service agreement I statute. intent of the taxing within purview ney lower court. would judgment affirm JOHNSON, MUTUAL FARM Appellant, v. STATE T. Lucile COMPANY, Respondent INSURANCE AUTOMOBILE 806) (2d) E.

(193 S. notes but denies that many $11,521.00 in taxes are due on the stamp corresponding number of accompanying powers attorney.