Fourth National Bank v. City of Greenville

The opinion of the Court was delivered by Mr. Justice Watts. This action was instituted in- Lire Court of Common Pleas for'Greenville county on March 5, 1910, for the recovery of $912.64, with interest from May *89 10, 1909, on account of municipal taxes alleged to have been wrong’ful-ly 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 and1 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 comity 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 M-ay 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 üpon 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 *90 Circuit Judge held that there were no issue's- 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 ask-ed 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. 1 As to the first exception, we see nothing ini this. As pointed out 'by Judge Gage the statute law on the subject consists in secs. 412 and 413, Code of Daws, 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. 2 As to the third ground we cannot add anything- to what has been so well expressed by Judge Gag-e 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 *91 the stockholders under that assessment,”—the taxes for the year 1909. Milster v. Spartanburg, 68 S. C. 26, 47 S. E. 141. The exception® are overruled' and judgment of Circuit Court affirmed.