Fuller v. Payne

The opinion of the Court was delivered by Mr. Chief Justice Gary. This is an appeal from an order sustaining a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, in that it did not allege that the plaintiff’s property was assesssed for taxation, at more than its true value; not that she was required to pay taxes on her property, assessed upon an excessive valuation. The action herein was instituted under the provisions of section 461, Code of Laws, 1912, which provides that any person paying taxes under protest “may at any time within thirty days after making such payment, but not afterwards, bring an action against 'the said county treasurer for the recovery thereof in the Court of Common Pleas for the county in which such taxes are payable; and if it be determined in said action, that such taxes were wrongfully or illegally collected, for any reason going to the merits, then the Court before whom the case is tried, shall certify of record that the same were wrongfully collected and ought to be refunded, and thereupon the Comptroller General shall issue his warrrant for the refunding of the taxes so paid, which shall be paid in preference to other claims against the treasury.” As the appeal involves the sufficiency of the complaint, it will be reported together with the appellant’s exceptions. The first assignment of error that will be considered is presented by the third exception, which is as follows: 1 “Because his Honor erred in not holding that the plaintiff’s proportion of the tax had not been ascertained by an assessment in the manner provided by law, although the complaint alleges, that the board of assessors discriminated unjustly against this plaintiff, in that it imposed upon her unequally the burdens of taxation, by assessing her on moneys, on credits and mortgages, when they well knew, and had their attention called to the fact, *480 that there were numerous other taxpayers, whose property is under their supervision, that were liable to pay taxes on the same class of property, but upon whose same species of property said board assessed not one cent, notwithstanding the fact that the board knew that no- return thereof had been made.” Section 1, art. X, of the Constitution, provides that “the General Asssembly shall provide by law for a uniform and equal rate of assesssment and taxation, and shall prescribe regulations to secure a just valuation on all property, real, personal and possessory.” Section 3 of that article, is as follows: “No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same, to- which object the tax shall be applied.” Section 9 is as follows: “Money shall be drawn from the treasury only in pursuance of appropriations made by law.” Section- 13 is as follows: “The General Assembly shall provide for the assessment of all property for taxation; and State, county, township, school, municipal, and all other taxes shall be levied on- the same assessment, which shall be that made for State taxes.” * * * Sections 287 and 296, Code of Laws, 1912, show that the property described in the complaint was subject to taxation, and that it was the duty of the owners of such property to list the same for taxation. Section 394, Code of Laws, 1912, is as follows: “The Comptroller General shall annually give due notice to each county auditor, of the rates per centum authorized by law to be levied for the various State purposes, which rates, or per centum, shall be levied by the county auditor on the taxable property of the county, and charged on the duplicate with the taxes required to be levied and collected for other purposes.” Section 384 of the Code of Laws, 1912, provides, that “each auditor shall, on or before the first day of March, *481 make out, in tabular form and alphabetical order, a list of the names of the several persons-, companies and corporations, in whose names any personal or real property shall have been listed.” Section 386 of the Code of Laws, 1913, provides, that "it shall be his (the auditor’s) duty, if he ascertain that any personal property in his county has not been listed, to list the same and make return thereof, with the valuation thereof as fixed-by the owner or himself, and the name of the owner or person to- whom it is taxable; and he shall charge the same on the duplicate for taxation, adding fifty per cent, to the value as returned as penalty.” Section 403 of the Code- of Laws, 1913, is as follows: “Each county auditor shall add to- the value of all personal property, which the owner -or other person whose duty it is made to- list the same, shall have refused or neglected to- list, or to the value of which such person shall have refused or neglected to- swear, fifty per centum on the value, and charge the same on- the duplicate, upon which taxes- shall be collected and apportioned to- the several funds, for which taxes are assessed against such owner, in proportion to- the respective levies.” Section 405, Code of Laws-, 1913, is as follows: “Whenever any taxpayer shall fail to- make returns to- the auditor of his county, within the time prescribed by law, it shall be the duty of the county auditor to- enter on the tax duplicate, against such taxpayer, the property charged to him the previous year, with fifty per cent, penalty added thereto, except in cases of sickness o-r absence from the co-unty, when the true amount of property only shall be charged.” There is a marked distinction, where the discriminatory classification is created by the act making the appropriation, and when such classification arises from the manner, in which the provisions of the statute are administered by the fiscal agents, in assessing property subject to- taxation. Conceding that the classification mentioned in the complaint *482 would have rendered the statute, under which the appropriation was made, null and void if authorized by the legislature, it cannot be successfully contended that it. had such effect, when adopted by the fiscal agents of the county. It is not alleged in the complaint, that the statute under which the taxes were collected was unconstitutional, and, therefore, null and void, nor that the fiscal officers assessed her property, at more than its true value; nor that the rate •or per centum upon which her taxes were collected, exceeded that which the law prescribed; nor that in dealing directly with her property, there was a failure to comply with any requirements of law. We, therefore, start out with the indisputable proposition, that the taxes paid by the plaintiff, did not exceed the proportionate amount, which it was her duty to pay, and consequently was not illegal. She, however, contends that it would be inequitable, not to refund the taxes paid by her, on the ground that other taxpayers owning property similar to hers, were not required by the fiscal authorities to return it, for taxation, and that thereby a greater burden was imposed upon her, than her proper proportion of the taxes. In the first place, it cannot be successfully contended, that the taxes paid by her, on the property described in the complaint, should be refunded, as, in that event, she would occupy towards the owners of similar property throughout the State who1 had paid taxes thereon, practically the same relation which she now occupies towards those in Greenwood county, who' have not returned their property for taxation. It was inequitable and unjust for them to refuse to return their property for taxation, and pay their proportionate part of the taxes; and it would be equally inequitable and unjust for her, to be excused from paying her proportion of the 'burden imposed upon the taxpayers. Tw0‘ wrongs do> not make a right. It will thus be seen, that the plaintiff is not entitled to the remedy she has pursued. The law, however, foreseeing that taxpayers and fiscal authorities, would fail or refuse *483 to discharge their duties, has undertaken to provide adequate remedies in such cases. 2 If the owner of any personal property does not list it for taxation, it shall be the duty of the auditor to list the same, make return thereof, and add a penalty of fifty per cent, to the value as returned. And, if the taxpayer fails to make his return, it shall be the duty of the auditor to add a penalty of fifty per cent, on the property charged to the taxpayer the previous year (except in cases of sickness or absence from the county). The amount due for taxes is a debt for which the owner may be sued. Taylor v. Strauss, 95 S. C. 295. Fiscal officers may be compelled by mandamus, to1 assess property liable for taxes, as this is a mere ministerial duty, but they cannot be required to' place a particular value thereon, as this would be an interference with their discretion. State v. Morris, 67 S. C. 153, 45 S. E. 178. Furthermore, fiscal, officers are liable to indictment and subject to removal, if they are guilty of misconduct, in office, and, if they should be removed and others appointed in their places, the taxpayers who had failed to return their property for taxation, or to pay their taxes, would still Be liaBle, and proceedings could Be instituted against them, by officers appointed in their places. If there should be a resort to the remedies provided against defaulting taxpayers, by the infliction of penalties, and against fiscal officers failing to< discharge their duties, a larger amount of taxes might be collected, than if the defaulting taxpayers had made their returns and paid their taxes in the usual manner. What has been said in disposing of this exception, shows that none of the others can -be sustained. Judgment affirmed.