Chamblee v. Tribble , 1885 S.C. LEXIS 79 ( 1885 )

The opinion of the court was delivered by

Mr. Ciiiee Justice Simpson.

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 due or not, and under which the Circuit Judge determined that it was his duty to dismiss the complaint.

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 conceded that should the general assembly at any time attempt to levy a tax for any purpose except a public one, the act would not only be unconstitutional, but would, be transcending the powers of the general assembly in a direction the most dangerous and fatal. The mistake, however, in appellants’ argument, as it seems to us, is not in the principle itself, but in its application. The argument assumes that if the tax be an illegal tax, that section 269 does not apply, and therefore the case is discussed as if the question before the court was, is this a legal'or illegal tax? If that was really the question before us, the authorities cited and the argument based thereon wmuld be pertinent, but this is not the question; on the contrary, the real question is, were the defendants below attempting to collect a tax legal or illegal when the injunction was applied for? If so, section 269 stayed the hands of the court at once and in express terms.

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 may be legal or illegal,' dependent upon the purpose of the collection, i. e. whether for a public or private use, but in either case is it not a tax imposed and collectible until, if illegal, the illegality is adjudged and determined by proper authority? Section 269 assumes primarily that all assessments imposed by the authority of an act are taxes, and it prevents any interference in their collection in the first instance, reserving the right of the taxpayer to have the amount paid refunded in the event that the tax is subsequently held illegal.

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 depend upon the purpose which the framers of the constitution had in view when they thus conferred the power upon the courts to issue these writs. Was it their purpose simply to perpetuate these writs, and to fix them as unalterable remedies in certain cases for all times ? Were these writs of such importance as to demand this, and was there a fear that the citizen might be deprived of this mode of relief, if the hands of the legislature were 'not tied? Or was it done simply to confer jurisdiction on the courts in cases where the law, as it stood, when an application might be made for relief, authorized them to be issued ? If the former purpose had been in view, how much easier and freer from doubt could such an idea have been expressed by simply declaring that said writs as heretofore existing should be held inviolate, and that the judges and courts should not only have power to issue them, but should never be prevented from the exercise of that power. If, however, the latter was the intent, no other language more appropriate to that end than that used could have been used.

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 any greater danger of being usurped, lost, or destroyed, than other remedies, and there was no special reason why they should have been declared perpetual and irrevocable. On the other hand, there might have been a question whether the conferring of general jurisdiction on the courts in civil and criminal cases, without more, would have embraced these writs, because of their special and limited character, and on this account there was a reason why it was proper to mention them specially, and to confer jurisdiction in terms in reference to them on the courts. When we find, therefore, a sufficient reason for their prominence in the constitution in the fact of jurisdiction conferred, would it not be a strained construction to conclude that underlying this was a purpose to limit the legislative powers of the general assembly as to these writs in the exercise of that discretion Avhich it is admitted that body possesses in general legislation, and Avhich is so necessary not only in such legislation, but especially so in shaping and moulding remedies and proceedings, to be administered by the courts for the proper protection of the citizen in his various rights ?

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.