Germania Savings Bank v. Town of Darlington

27 S.E. 846, 50 S.C. 337, 1897 S.C. LEXIS 32

• Court: Supreme Court of South Carolina
• Decided: September 13, 1897
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

This is an action to recover the amount of past due coupons, taken from certain bonds, held by the plaintiff, which purport to have been issued by the proper municipal authorities of ’ the town of Darlington. Jury trial having been waived, the case was heard by his Honor, Judge Aldrich, upon an agreed statement of facts, set out in the “Case,” and he rendered judgment in favor of the plaintiff for the amount of said coupons, together with interest thereon from their maturity. From this judgment defendant appeals upon the several exceptions which appear in the record. For a full understanding of the facts, and the questions presented for decision, the reporter will set out, in his report of the case, the agreed statement of facts, the decree of the Circuit Judge, and the exceptions thereto.

1 The defendant, while not denying the execution of the said bonds and coupons, bases its defense, substantially, upon the ground that, at the time these bonds were issued, the municipal authorities of the said town had no power to issue such bonds. There is-no doubt that a municipal corporation has no powers except such as are conferred upon it by legislative authority. Our inquiry, therefore, is whether the legislature of the State has conferred upon the town of Darlington the power to issue these bonds. The contract here in question having been entered into while the Constitution of 1868 was in force, its validity must be tested by the provisions of that Constitution, and the statutes passed in conformity thereto. The provisions of that Constitution which affect this question are the following: Sec. 33, of art. 2, which reads as follows: “All taxes upon property, real or personal, shall be laid upon the actual value of the property taxed, as the same shall be ascertained by an assessment made for the purpose of laying such tax.” Sec. 1, of art. 9, which declares that the General Assembly “shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal, and possessory ,jexcept mines and mining claims, the proceeds of which alone shall be taxed; and also excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes.” Sec. 5 of the same article, which requires the General Assembly to enact laws for the exemption from taxation of certain classes of property, to wit: “public schools, colleges, and institutions of learning, all charitable institutions in the nature of asylums for the infirm, deaf and dumb, blind, idiotic and indigent persons, all public libraries, churches, and burying grounds.” Sec. 8 of the same article, which declares that the corporate authorities of a town “may be vested with power to assess and collect taxes for corporate, purposes,” and declares that “the General Assembly shall require that all the property, except that heretofore exempted, within the limits of municipal corporations, shall be taxed for the payment of debts contracted under authority of law.” Sec. 9 of the same article, which reads as follows: “The General Assembly shall provide for the incorporation and organization of cities and towns, and shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit.” And sec. 17 of the same article, which reads as follows: “Any bonded debt hereafter incurred by any county, municipal corporation or political division of this State shall never exceed eight per centum of the assessed value of all the taxable property therein.” This last mentioned section being an amendment adopted in 1884 — 18 Stat., 689.

From these constitutional provisions, it seems to me that the following conclusions müst be deduced: 1st. That all the property in the State is liable to be taxed, except such as is specially exempted by sec. 5, of art. 9, or other provisions of the Constitution, and except such as could not be taxed without a violation of the provisions of the Constitution of the United States — which latter exception is not pertinent to our present inquiry. 2d. That all taxes, whether State or county or municipal, must be laid upon the actual value of the property taxed, as the same shall be ascertained by an assessment previously made for that purpose. 3d. That such assessment must be uniform — whether made for the purpose of State, county or municipal taxation. 4th. That the corporate authorities of a town may be vested with power to assess and collect taxes for corporate purposes; but in doing so, “the General Assembly shall require that all the property, except that heretofore exempted, within the limits of municipal corporations, shall be taxed for the payment of debts contracted under authority of law.” 5th. That while there is no express provision authorizing the General Assembly to invest the municipal authorities of a town with power to borrow money and issue bonds to secure the same, yet this is necessarily implied by the provisions of secs. 9 and 17, of art. 9, above quoted. 6th. That this power to borrow money and issue bonds is limited by sec. 17, of art. 9, providing that, after 1884, the bonded debt of any municipal corporation “shall never exceed eight per centum of the assessed value of all the taxable property therein.”

2 These being the conclusions deducible from the provisions of the Constitution, the next inquiry is, what powers have the General Assembly undertaken to confer upon the corporation of the town of Darlington in reference to creating a bonded debt? By the act of 1884 — 18 Stat., 923 — the mayor and aldermen of the town of Darlington were authorized to borrow money, and issue bonds or scrip therefor to an amount not exceeding $5,000, provided, “that no bond shall be sold for less than its par value.” That act, sec. 16, also provided “That the said mayor and aldermen shall have the power and authority to impose taxes each year for the use of said town, that is to say, not exceeding fifty cents on each $100 worth of real and personal property being in the limits of said town, except the property of churches, charitable associations, and institutions of learning. The value of such real and personal property for the purposes of taxation shall be fixed and assessed as hereinafter provided.” In sec. 17, provision is made for the appointment annually of three citizens of the town by the corporate authorities “to assess the value of real estate for taxation,” and prescribing the time within which, and the manner in which, such assessment shall be made. Sec. 18 requires the owners of personal property within the corporate limits to make a return of such property to the town clerk within a prescribed time, and if no such return is made within the time prescribed, then it is made the duty of said clerk “to assess such personal property for taxation, and his said assessment shall be final.” The section also contains a provision that if the mayor and aldermen are dissatisfied with the return made by the owner, he may be required to come before them, “and fairly account for the personal property of such owner;” and if he neglects or refuses to do so, then his personal property shall be assessed for taxation by the mayor and aldermen at its true value. By the act of 1889 — 20 Stat., 503 — sec. 16 of the foregoing act was amended by adding thereto the following provision: “That if the said mayor and aldermen should hereafter issue bonds for the purpose of aiding in the construction of railroads, then they may impose an additional tax to raise a sufficient amount to pay the interest on said bonds, which additional tax shall not exceed fifty cents on each $100 worth of real and personal property as above provided;” and sec. 29 of the act of 1884 was further amended by allowing an issue of bonds for the purpose of aiding in the construction of railroads to any amount, “and that no bond shall be sold for less than its par value.” All of the other provisions of the act of 1884 remained unchanged. From this review of the several statutory provisions upon the subject, read in the light of the constitutional provisions above referred to, it is very manifest that the General Assembly intended to invest the corporate authorities of the town of Darlington with authority to issue bonds in aid of railroads, and also with power to lay assessments on the taxable property within the corporate limits of the said town for the purpose of levying taxes thereon to raise money to pay the interest on such bonds. It is true, that the act conferring the power to issue bonds does provide that the corporation may issue bonds in aid of railroads “to any amount,” but in order to avoid any conflict with the constitutional provision limiting the amount of the bonded debt of any town to eight per centum of the assessed value of all the taxable property therein, that provision of the act must be qualified by such constitutional provision, and so read that the authority will be confined to the issue of bonds to any amount not exceeding the limit prescribed by the Constitution, upon the well settled principle that a statute will never be construed unconstitutional when it can be in any possible way reconciled with the provisions of the Constitution. Fletcher v. Peck, 6 Cranch, 87; Butler v. Pennsylvania, 10 How.; 415; besides many other authorities to the same effect, amongst which our own case of Pelzer v. Campbell, 15 S. C., 581, may be cited.

3 If this be so, then the next inquiry is whether the defendant corporation in issuing the bonds in question has exceeded the power thus legitimately conferred upon it. The amount actually issued being conceded to be $73,000, the practical question is whether that amount exceeded the constitutional limit — “eight per centum of the assessed value of all the taxable property therein” — that is, within the municipality which has undertaken to incur the bonded debt in question. To determine this question, two inquiries are presented: 1st. To what year assessment must reference be had? 2. Where, as in this case, two assessments have been made, differing in amount — one by the town assessors for the purposes of municipal taxation, and the other by the proper officers for the purpose of State and county taxation — which of these two assessments is to be adopted as the basis of the calculation? As to the first of these questions, the bonds having been issued in April, 1890, it is clear that, under the case of The State v. Cornwell, 40 S. C., 26, the assessment of 1890, made in the early part of the year, is the one to which reference must be had, as that is the assessment made next preceding the issue of the bonds. By reference to the assessments made for that year it appears that the assessment made by the town assessors for the purposes of municipal taxation amounted to $1,019,685, while the assessment made for the purposes of State and county taxation amounted to $831,265 — hence the vital importance of the second of these questions, as to which of these two assessments should be adopted, as the basis of the calculation; for if the former be adopted, it is clear that the amount of bonds issued did not exceed the constitutional limit, while if the latter be adopted, it is equally clear that such limit was exceeded.

4 It does not seem to me that this important question has ever been authoritatively decided in this State. The case of Ross v. Kelly, 45 S. C., 457, relied on for this purpose, only decides that in the absence of any legislation conferring upon a municipal corporation the power to make assessments of real estate, within the corporate limits, for the purpose of municipal taxation, it must adopt the assessment made by the proper officers for the purpose of State and county taxation, and cannot adopt an assessment made by an.assessor appointed by the corporate authorities of such municipality. But the Court in that case does not decide, and could not properly have undertaken to decide, under the facts there presented, that where a municipal corporation has, as in this case, been invested with power to appoint assessors and provide for the assessment of property, within the corporate limits, for the purpose of municipal taxation, an assessment made by those appointed for that purpose by the municipal authorities is illegal. It seems to me, therefore, that the question, at least so far as authority is concerned, is still open. It is true that, in that case, one of the Justices of this Court — the writer of this opinion— while concurring in the conclusion reached by Mr. Justice Gary, who prepared the leading opinion, did go further and express the opinion, to which he still adheres, that, in accordance with the manifest scheme of the Constitution to secure uniformity, as well in the assessment as in the taxation of property, there could be but one lawful assessment of property, whether for State, county or municipal purposes, which must represent the actual value of the property; for otherwise the same property might be represented as having two actual values differing in amount — which, to use the mildest term, would be anomalous, if not absurd. This possibility has been converted into a fact in this case, as shown by the admissions in the agreed statement, as it there appears that the two assessments differed largely in amount. While, therefore, I do not think that this question has, heretofore, been authoritatively decided, yet, when it is squarely presented, as it is now, I am still of the opinion that there can be but one lawful assessment of property for taxation, and that must, necessarily, be the assessment made by the proper officers for the purpose of State and county taxation, for it, certainly, could not be claimed that either the town of Darlington or any other municipal corporation has been or could be invested with authority to make assessment of property for the purpose of State and county taxation.

5 From this it would follow that the issue of the bonds here in question was without constitutional authority; but it seems to me that this is a case in which the maxim, communis error facit pis, may and should be applied for the protection of an innocent holder of negotiable paper. That maxim has been distinctly recognized and applied in the case of Herndon v. Moore, 18 S. C., 339, and there is greater reason for applying it here than in that case.. In the first place, the point above considered was never raised, or even hinted at, in any case, so far as I am informed, prior to the case of Ross v. Kelly, supra, which was decided on the 25th of November, 1895, upwards of five years after the bonds here in question were issued. On the contrary, the General Assembly, from year to year, was passing acts empowering various municipal corporations to appoint their own assessors, and otherwise provide for the assessment of property for the purpose of municipal taxation, which, so far as appears, were acted upon without question by taxpayers or others. The defendant corporation itself had exercised and acted upon the authority thus supposed to be legally conferred, and had collected and disbursed, from year to year, taxes collected under assessments made by the town assessors, without question from any source. More than this, the Supreme Court itself has upon more than one occasion rendered decisions in which it was assumed, though the point was neither raised nor decided, that the assessment made by assessors appointed by the town authorities was the proper and lawful assessment to which reference should be had in ascertaining whether the bonded debt of a town exceeded the constitutional limit. This was notably the case in State v. Tolley, 37 S. C., 521. In view of all this, it seems to me that this is eminently a case proper for the application of the maxim, communis error facit jus; and upon that ground I think the issue of bonds here in question should be sustained.

6 Appellant contends, however, that even if the assessment made by the town assessors could be adopted as the basis of the calculation, still the amount of bonds issued was in excess of the constitutional limit, as the assessed value of the property of the Darlington Manufacturing Company should be deducted from such assessment, and if so, the amount of bonds issued would exceed eight per centum of the assessed value of all the taxable property therein. I am at a loss to perceive any just ground for the deduction claimed. It is contended that this ground is to be found in the provisions of sub. 23 of sec. 169 of the Gen. Stat. 1882, which declares that any person who, since the 1st of January, 1872, has invested or may invest capital in the manufacture of cotton or other fabrics specified within this State, shall, for the period of ten years from the date of his investment, be entitled to receive from the State treasury a sum equal to his State taxes, and from the county treasurer the amount of his county taxes (not including, however, the two mills tax for school purposes), and from the treasurers of all municipal corporations the amount of his municipal taxes, “which shall be levied and collected upon the property or capital employed or invested directly in such manufactures or enterprises; not including herein the tax levied upon the land upon which the factories may be erected.” While this section, or rather subdivision of this section, has been expressly repealed by the act of 1885 — 19 Stat., 333— yet as the repealing act contains a clause saving the rights of persons who had previously acquired the same under the provisions of the subdivision as originally enacted; and as it is conceded that the Darlington Manufacturing Company had gone into operation prior to the passage of the repealing act, it may be conceded, for the purposes of this discussion, that the persons who invested their capital in said company may still claim the rights conferred by sub. 23 of sec. 169; but it does not by any means follow from this that the property of the Darlington Manufacturing Company is not taxable, and hence should not be included in the assessment. In the first place, if the General Assembly had undertaken, in express terms, to exempt the property of that company from taxation, the effort would have been futile, because in plain violation of the provisions of sec. 1 of art. 9, by which the General Assembly is required to provide by law for the assessment and taxation “of all property, real, personal and possessory,” except such classes of property, specifically mentioned, as may be exempted bylaw from taxation; and it certainly cannot be pretended that the property of the Darlington Manufacturing Company falls within any of those classes. But, in addition to this, the General Assembly has not undertaken to exempt any of the property of the company from taxation. On the contrary, the express terms of the subdivision of the section above referred to plainly show that the property of the company should not only be assessed for taxation, for State, county, and municipal purposes, but also that the taxes imposed should be paid into the respective treasuries to which they belonged; and the only effect of this statutory provision was to allow those who had paid such taxes, to receive from the respective treasuries a certain portion — not the whole — of the taxes which they had paid; for the section expressly provides that they are not entitled to a return of the taxes paid on the land, nor to the two mill school tax. It is very manifest, therefore, that the section necessarily contemplated that such property should not only be assessed for taxation, but that taxes must be paid thereon, for otherwise the scheme of the statute could not possibly be carried out. The real and only purpose of this statutory provision was to give a bonus to those who had invested their capital in manufacturing enterprises, for the purpose of encouraging such enterprises. It seems to me, therefore, that there is no escape from the conclusion that the property of the Darling-ton Manufacturing Company was taxable property within the corporate limits of the said town, and was, therefore, properly and necessarily included in the assessed value of such property.

Again, it is contended that there is nothing in the Constitution which forbids the General Assembly, when it grants a charter to a municipal corporation, from exempting any classes of its property from taxation. Even if this proposition were conceded, which we are not now prepared to do, a sufficient answer would be that there is no provision in the charter of the town of Darlington which exempts, or authorizes the municipal authorities to exempt, from taxation any species of property, except such as falls within the classes specified in the Constitution. On the contrary, in sec. 16 of the act of 1884, supra, it is expressly provided: “That the said mayor and aldermen shall have the power and authority to impose taxes each year for the use of said town, that is to say, not exceeding fifty cents on each $100 worth of real and personal property being in the limits of said town, except the property of churches, charitable associations, and institutions of learning. ” (Italics mine.) This provision has never been altered or amended, as we have been able to discover, except by the provision in the act of 1889, above referred to, authorizing the imposition of an additional tax, not exceeding fifty cents on each $100 worth of property in the corporate limits, to pay the interest on bonds issued in aid of railroads.

All the other points made by this appeal are satisfactorily disposed of by what is said by the Circuit Judge in his decree, and I am content to rest my conclusions upon what is there said.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.

Mr. Justice Pope concurs in the result only. MR. Justice Gary concurs in the result only.