Fourth National Bank v. City of Greenville ( 1912 )

March 25, 1912. The opinion of the Court was delivered by This action was instituted in the Court of Common Pleas for Greenville county on March 5, 1910, for the recovery of $912.64, with interest from May 10, 1909, on account of municipal taxes alleged to have been wrongfully and unlawfully collected by the defendant from the plaintiff on May 10, 1909, and paid under protest. The plaintiff's claim is based upon these facts: As a National bank it was organized and started business in July, 1908. In February, 1909, it lodged with the county auditor a list of its stockholders, in conformity with sec. 316, vol. I, Code of Laws, and sec. 5219 Revised Statutes, United States, upon which taxes 1909 were to be assessed at the valuation of $56,525, as afterwards fixed. The city taxes at that time were collectible in January and February of each year, instead of in the fall as State and county taxes are. Assessment rolls are made up by auditor, usually in August, for State and county purposes. The city authorities had fallen into the custom of adopting the assessments for State and county taxes of the year previous, and adding thereto, through a committee of assessors, property acquired during the previous year and not upon the assessment roll of that year. During January, 1909, the property of the plaintiff did not appear upon the county duplicate for 1908, and was assessed or attempted to be assessed by the local assessors at $55,200, and added to the copy of the county duplicate used for the collection of city taxes. The payment of city taxes without penalty was extended from time to time, the last period expiring May 10, 1909. No execution was issued against plaintiff. On May 10, 1909, plaintiff paid taxes and took a receipt, the same showing taxes were paid under protest.

On March 5, 1910, this action was commenced.

The plaintiff attacks the tax upon the ground that the entry upon the tax book of the city was unauthorized, and that the stockholders, and not the bank, was liable for city taxes.

Upon the close of plaintiff's testimony, the defendant offering none, both sides asked for a directed verdict. The Circuit Judge held that there were no issues of fact for the jury and withdrew the case from the jury, heard argument upon the legal issues, and subsequently filed his decree, rendering judgment for the plaintiff for the full amount demanded.

Defendant appeals upon substantially the same grounds he asked the Court to direct a verdict on, and plaintiff asks affirmance of decree on additional grounds, as well as those which Judge Gage based his decree on. Judge Gage's decree sets out the case fully, and should be reported with the exceptions with the case.

As to the first exception, we see nothing in this. As pointed out by Judge Gage the statute law on the subject consists in secs. 412 and 413, Code of Laws, and acts of February, 1903, at 23 Statutes 972, and clearly refers to city taxes as well as county taxes, and has been so construed by this Court in Telegraph Co. v. Winnsboro,71 S.C. 235, 50 S.E. 879, and in the case of Wood,Mendenhall Co. v. City of Greer, 88 S.C. 251. It was not a cheerful and voluntary payment on the part of the plaintiff, but more in the nature of extortion or a hold-up under forms of law. It paid under protest, as under the laws it could not stay the collection of taxes by application to the Courts. In order to prevent the penalty that would have been added and the issuance of execution to enforce the collection, the plaintiff exercised the remedy given it when an illegal tax was attempted to be exacted, paid it under protest and brought suit at law.

As to the third ground we cannot add anything to what has been so well expressed by Judge Gage in reference to this ground: "The City of Greenville is required by law to collect its taxes from the stockholders of the bank on the assessment as finally determined by the county board of equalization, and may still collect it from the stockholders under that assessment," — the taxes for the year 1909. Milster v. Spartanburg, 68 S.C. 26,47 S.E. 141.

The exceptions are overruled and judgment of Circuit Court affirmed.