*1 INC., MILLS, NEWBERRY Taxpayers and all other similarly situ ated, Appellants, Ray DAWKINS, v. J. Newberry Treasurer of County, Buzhardt, and Thomas F. City Finance Director and Treas urer of City Newberry, Respondents. S.
(190 (2d) 503) E. *2 Blease, Stone & Esq., C. Eugene Griffith, Griffith, Hightower, Newberry, Appellants, for Allen, Jr., Gen., McLeod, Daniel Joe L. Atty.
Messrs. R. Gen., Columbia, Jr., G. Lewis Asst. Attys. Argoe, Hunter, New- R. T. and William Aubrey Harley, berry, Respondent, Holcombe,
Neville Holcombe, Esq., of Bornar and Cure- *3 ton, of Curiae, Amicus Spartanburg, 6, 1972.
July
Littlejohn, Justice: Mills, Newberry
This action was the plaintiff, brought by situated,” Inc. “all similаrly against other taxpayers City Fi- Treasurer of Newberry County against Newberry. of the City nance Director Treasurer that the action brought “pur- complaint expressly alleges the Code of 65-2662 and Section 65-2663 of suant Section as These sec- for Carolina for 1962 amended.” Laws South taxes under pro- of the Code permit taxpayer pay tions the tax validity and therеafter contest the bringing test The lower court of the amount paid. an action recovery referred as Mills (hereinafter denied the relief. Newberry appeals. “plaintiff”) shall refer term “valuation”
Throughout opinion while determination the true value to the determination term “assessment” shall refer the tax value the property. their ad valorem manufaсturers file our statutes
Under *4 Commis- the Carolina Tax tax returns with South for tax assess- value determining sion for the of purpose the audi- their returns with other file ment. Most taxpayers of Carolina of Laws South of counties. Code tors the various 65-1644, 65-1647.1, 65-1502, 65- 65-64 (17), (1962) §§ 1752. manufacturer, with the Com- filed its return
Plaintiff, a return, the addition to year. for the 1970 tax mission Commission, a copy the form by made a provided the financial balance sheet was plaintiff’s required. Using sheet, Tax Division of return and the balance the Property found the prop- Commission actual value plaintiff’s be A tax $4,804,700.50. erty (realty plus personalty) $507,805.50 value of was assessed. This represents figure it is and realty; actual value the personalty 10%+ or local tax rate is to which the figure applied millage in order to determinе the actual tax liability.
At before the Commission hearing plaintiff protested both the assessment. Plaintiff contended valuation the ratio used the Commission was by that (1) (10%+) than used local authori- that greater by Newberry County ties in other in that the county; assessing (2) method the assessment Commission’s of valuation made void.
The did evidence of “true value” plaintiff present con- Commission. The Commission overruled plaintiff’s tentions and ruled should that the indicated above figures be ceritified to and used County auditor of Newberry from collecting plaintiff.
An as 3 of Title appeal permitted by 65 of the Chapter Code, was taken to the Tax Board of Review. The Board foqnd that real had been plaintiff’s assessed by value, the Tax at Commission of actual while other 10% real been Newberry had assessed county at 5 of% The Board ordered actual value. plaintiff’s prop- be at 5 and that assessed erty plaintiff’s personal property % This resulted in assessed at a tax value decrease 10%. $507,805.50 $445,170. from The actual value was left at $4,804,700.50. values as determined the Tax Board of Review were entered subsequently upon the tax rolls of and taxes for the Newberry County, county the city were levied thereon. Newberry the taxes under Plaintiff paid protest brought action for the the Court of Common Pleas recovery Section 65-2661 et Plain- Newberry County. (Code seq.) *5 tiff concedes that some are due and asks that the mat- ter be remanded to the Tax Commission for revaluation and reassessment. attacks сomplaint of the constitutionality system
whereunder plaintiff’s was taxed. asks the It court to “declare assessment void its its entirety issue order for reassessment.” It based on the due process and equal protection clauses the State and Federal Consti- tutions, as well as the of the following provisions Constitu- tion of South Carolina:
“All to shall property subject taxation be taxed propor- tion to its Art. X I value.” 3A Art. & (formerly 6). §
“All taxes real and shall be upon laid property, personal, taxed, the actual value of the as the same shall be ascertained an made for the by assessment purpose Ill, such tax.” Art. 29. laying §
“The General shall law for a uni- Assembly provide by taxation, form and rate of assessment and and shall equal just secure valuation prescribe taxation regulations real, of all ...” Art. personal possessory, X 1.§ counties,
“The authorities school townships, corporate cities, districts, towns and may be vested villages pow- er and collect taxes for to assess such corporate purposes; taxes to be uniform respect persons . within the same . .” jurisdiction body imposing XArt. 5(1). § of this
The bаsic for the determination Court questions are as follows: assessment ratio of for taxation be ap-
I. Can a different than is applied personal property? plied made Commission as II. Is the assessment Tax Review, the Board of because amended void to determine the valuation and method used as- resulting sessment ? affirmed of Review above, Tax Board
As noted *6 on plaintiff’s the Commission rate set by the 10% rate on the plain ordered the but personal the rates These are same reduced to tiff’s real property 5%. in assessing per the authorities county used by generally therefore The first question sonal and real property. property the Tax Commis used by difference in rates with the deals to as statutorily permissible and sion. Is it сonstitutionally and real property at personal property sess plaintiff’s 10% at 5%? of assess-
Plaintiff that the use of different rates argues isment in view of the constitutional impermissible provisions set forth above. Plaintiff also that this vio- argues practice Code, the lates Section which directs that 65-64(17) “shall assess and and Commission all real equalize tangible of manufacturers.” property find no
We constitutional or that statutory provision pro- hibits the assessment of real at a from property different rate All is property. is “a personal uniform required and rate of assessment and taxation.” This has equal requirement been as follows: interpreted
“Generally, within constitutional limitations, the state has classify or for power persons property purposes of taxation, and the exercise of such is not forbidden power by the constitutional that taxation be uniform requirement and the tax is uniform on provided all members of equal the same class and the classification provided is reasonable and 84 C. S. Taxation arbitrary.” 112. p. § J. Watts,
The trial v. Morgan judge, relying 255 S. C. 212, held 178 S. E. that “the (1970), 1, of Article Section do nоt prohibit classification therefore, for tax purposes, use of a higher to determine the tax value for ratio personal than is not that applied constitutionally pre- cluded.” of the Tax Board of
The order Review requires Com- use the same ratios manufacturers’ mission to realty and as personalty used the local authorities for realty per- sonalty other There is taxpayers. therefore equality uniformity the assessment as required the constitu- tions statutes.
The due process and equal clauses South protection Carolina and United States Constitutions do not require different result. 16A C. S. Constitutional Law §§ J. 650. It follows that the first without merit question must decided adversely contention. plaintiff’s The second be decided deals with Com- quеstion valuation, mission’s method af which contends plaintiff stated, Tax constitutionally Com- impermissible. Briefly mission uses the cost of the and carries that original *7 forward each as the fair market value of figure year the As items of or are re- property. equipment taxable property there is no placed, the valuation of the change the replacеment factor being somewhat an allowance for and obsolesence. The that this depreciation asserts plaintiff in a results failure to ascertain fair patent market value and that because of the assessment is void. resulting
Such not without view of the con- argument appeal above, stitutional set and in forth view of Code 65-1648, Section all which to be vаlued requires Nonetheless, “at its true value in for taxation. money” plain- tiff’s cannot be sustained. exceptions Section a if
Code 65-2661 he conceives permits taxpayer, his state or a “to or levy county unjust tax the cause,” to such taxes under Hav- illegal any pay protest. so, done he an ing may bring action under Section 65-2662 for the of these taxes. recоvery Section 65-2663 makes this to right remedy applicable municipalities. Inc.,
This is styled, Mills, action “Newberry situated,” etc., other taxpayers similarly as though it were a class action. The indicates that complaint seeks the return of taxes plaintiff paid declaratory and/or uncertain nature of Regardless relief. it complaint, states that the action is to Codе Sec- clearly brought pursuant tions 65-2662 65-2663. It is an law therefore action at for the The lower held court recovery paid. correctly not that it was a class action. 65-2684 that an
Code Sections 65-105 and provide to the Commission aggrieved taxpayer may apply rule, the Tax for relief. As Board Review a must exhaust all relief available administrative before party Co., relief in the courts. v. Allstate Ins. Warren seeking E. This 152 S. rule (1967). S. C. (2d) applies and 65-2663. Mere under Sections 65-2662 actions brought Elliott, 147 E. dith v. 247 S. C. S. (1966). Plaintiff’s coveted relief hinges upon allegation of its it that valuation was invalid since constitutionally' not statutorily was —and —re actual true It was therefore incumbent or valuation. quired bodies to the administrative below plaintiff prove Tax Division’s valuation оf its the Property to the true value of the not actual value or was equivalent This has failed to do. No evidence of the plaintiff property. of fair market value was plaintiff’s property actual value Plaintiff failed to the Tax Commission. estab presented did “book value” method lish that produce of its property. valuation proper to the value of was plaintiff’s Evidence pertaining *8 before the trial Such valuation hearing judge. offered at the later than on a date 18 months the date based involved. was to. The objected The evidence was held the judge properly because this to be “meritorious court will not objection the of the Tax to Commission presume findings speculate such facts been or the Board had or evidence presented.” in more than the method used deter Of importance In the valuation is the result reached. the ab mining sence some other the Commission of proof value, “actual” the set the stand. value Commission must This action in effect asked the lower court to the review ac-
tion of the Commission and the Tax Board Review. a sense it is an incorrect, If a valuation is then appeal. actual value should be proven that body by law charged with duty the value. determining As we noted in Wasson v. S. C. S. E. Mayes, the task of (1969), checking returns thou- sands of and merchants manufacturers and at the arriving true value of their in accordance with the appli- cable and constitutional is statutory admittedly provisions a most tedious and difficult one. Absolute with re- accuracy spect and complete valuation are equality uniformity attainable. practically method used Apparently the Commission has proven generally satisfactory.
It of interest that Neville Holcombe of the attorney Bar filed a amicus Spartanburg has brief curiae in Court support the first plaintiff’s position question treated herein. Not of the on whose behalf taxpayers desired attack of ar- he the Commission’s method appears at the value of their of them riving because some another method about thought bring higher might of their no valuation was property. Accordingly, position taken the amicus curiae brief on the second question. The lower court determined the and its correctly issue judgment
Affirmed.
Moss, Lewis, J.,C. J., concur. Bussey Brailsford, JJ., dissent part. : Bussey, (dissenting) Justice I most dissent as to the respectfully disposition first stated question majority opinion. answer to this which this Court has not heretofore needed question, to ex- decide, intent of the pressly depends meaning sections of several our Constitution with ad dealing valorem taxes. It is law that in elementary constructon of constitutional words are presumed to used
17 in their It is further ele- ordinary peculiar meaning. that where the mentary such clear language plain, there is neither room nor need for unambiguous, construction. these rules to the con- Applying elementary control, which here stitutional we must in- provisions reach the conclusion evitably that all real and per- sonal, must be taxed in alike within the which jurisdiction the tax is It follows that the taxation of imposed. tangi- ble at twice the rate personal property imposed upon in the is a violation of same jurisdiction patent ad valorem tax our Constitution. provisions
It is not even asserted that there is or unclear anything about these constitutional but evеn ambiguous provisions, if there construction, were any need for ambiguity any the authorities relied the lower court and in the upon by majority are not in do not opinion point simply sup- port Watts, conclusion reached. The case of v. Morgan 212, 255 S. C. 178 S. E. is cited and the (2d) (1970), lower court was in that case from swayed by quotation v. Blue Rural Electrical F. Byrd Ridge Cooperative, turn, Cir. whiсh cited (4th 1954), opinion, Bell, and relied Duke v. Power Co. 156 S. C. upon 152 S. E. 865. None of these decisions at point instant issue. each instance the court was concerned * * * law for property, exempted by “municipal pur- taxes, ad from valorem imposition poses”, pursuant X, 1 of the literal Article Section the Con- language An cases stitution. examination of these shows thаt clearly of the “classification of for tax speaking pur- was not whether the ad val- the Court considering poses” tax of our Constitution orem property permitted but rather whether the exemptions such classification per- such in conflict with the equal protection mitted under were Federal clauses of the State and Constitutions. It follows nor its throw that neither Morgan progenitors any light controversy. the present upon
Reliance is also had from 84 language quoted Taxation C. S. 112. While p. at first such glance § J. *10 would language have some appear possible bearing upon issue, a present the cases in of cited sampling support text, mind, to my completely destroys any persuasive- ness that the text might otherwise hаve. Cited are cases 308, such as Carolina Music v.Co. Query, 192 S. C. 6 S. E. 473, taxes, with ad (2d) valorem but dealing property license instead. is, however, issue are with which we concerned precise Taxation, dealt
specifically 89, 84 C. S. 26 p. § J. I from which quote: 26. Discrimination between and Realty Personalty.
“§ “Under constitutional all provisions requiring to be taxed aby uniform rule or that all taxes shall be reasonable, has been it held that there proportional can be no between real and discrimination personal property invalid;” that tax alone levied either class
An examination
of
of
cases cited
the text
support
of this section shows that without any
whatsoever
exception
states,
wherein
the constitutional language governing
of ad valorem
at all
imposition
taxes on
similar
to the
State,
constitutional
of
have held that
language
real and
must be taxed alike and
tangible personal property
Carolina,
not be
may
treated
The States of North
differently.
Massachusetts, Illinois,
Wisconsin,
Georgia,
Ne
Michigan,
braska and
have
Colorado
so held. Redmond v. Town of
Tarboro,
122,
845;
106 N.
10
C.
S. E.
v.Wiley
Salisbury,
397,
111
542;
N. C.
16
E.
Pocomoke
Biddle,
S.
Guano v.
212,
996;
158 N. C.
73
E.
v.
Charlotte,
S.
Jamison City of
682,
904;
E.
239 N. C.
80 S.
Colvard v.
(2d)
Ridley, 218
490,
732;
Howard,
Hutchins v.
Ga.
128 S. E.
211
(2d)
Ga.
Assoc,
183;
830,
S. E.
State B.
L.
89
v.
(2d)
Georgia
&
Savannah,
63,
etc.
Mayor,
67;
109 Ga.
E.
35 S.
re
of
616,
of
208 Mass.
Opinion
Justices,
;
19 Evansville, Baker Co. v. 261 Mfg. City Wis.
N. v. W. Bros. Board (2d) (1952); Grainger County 180 Neb. 144 N. W. Equalisation, (2d) ; v. Ochs Town Hot Sulphur Colo. (1966) Springs, 456, 407 P. 677 (1965). Ohio, Maryland
It that New appears Jersey differ now treated may personal property ad for the valorem taxes virtue consti ently purpose tutional Prior to the several constitutional amendments. States, amendments in all of them like the other States these mentioned, held then constitutional hereinabove existing *11 to to ad valorem respect similar ours provisions quite real and preсluded being personal property treated for National v. differently tax Can purposes. Corp. Commission, State 418, 287; Tax 220 A Md. 153 Con (2d) Donahue, 224, tinental Can v.Co. 5 Ohio N. St. 215 (2d) 400; Davis, E. State ex rel. Struble v. 132 Ohio (2d) St. 555, 684; 566, N. E. Swits v. 9 37 N. (2d) Kingsley, J. 841, 182 A. 850.
In view of what I consider
clear
patent,
langu-
of our
age
several constitutional provisions, it is me
quite
understandable that
this Court
has not heretofore been
called upon tо
are,
decide
expressly
the precise issue. There
however,
cases,
several
not
directly
which throw
point,
at least some light
the matter.
See:
Co.
Gregg Dyeing
v.
117,
166
Query,
472,
S. C.
588,
S. E.
aff. 286 U. S.
631,
52 S. Ct.
1232,
76 L. Ed.
831;
A. L. R.
Thomas v.
Town
Moultrieville,
Council
647;
52 S. C.
E.
29 S.
Tucker,
State v.
56 S. C.
In brief it is view that the my language summary, clear, that real compelling Constitution unambiguous to be trеated have equally tangible personal property of ad valorem taxes. and alike for the purposes construction, is a com- And, need there if there were any from this or any absence of whatsoever authority plete any the conclusion reached below other to support jurisdiction authority being and sustained by majority opinion, to the сontrary. of the matter. But is to mind conclusive my
The foregoing whether least, is, a most as grave question there say or is in violation here the discrimination involved view my clauses of the Constitution. the equal protection matter, however, to discuss or decide unnecessary it is I would reverse serious and complex question. quite issue court as to the hereinabove of the lower judgment discussed.
Brailsford, concurs. J., BARTELL, George the Estate of Administratrix Betty Jean as Bartell, Respondent, *12 COM v. WILLIS CONSTRUCTION Allen PANY, INC., Indemnity Company, Appellants. and the Home (2d) 461)
(190 S. E.