The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-05-25
ma n -,itarp.rda -bYs tha eontt Of Rrrprs, end In

| dends WINS illegal because the Banks had paid
bonus to the State, in consideration OF which they
were by their charter exempted from all taxation,
whether of the State or Of the city.
| On the 9th January, 1852, Mr. John c. Rurcl-
meyer applied by petition to Council to be refund
| cd the amount which ne had paid, uaoer Pfotesl'
tition was referred to the Committee of Ways and
Means, with authority to confer with the City At
| torney.
On the 10th February 1852, the Committee made
their report. and as it is based almost entiroiy
upon legal considerations, have no doubt 1T was
Nude upon conference with me, and under my ad-
vice. enclose copy of this report.
| Tho report states that the taxes paid on uvl,
dends, during the four years last past, amounted
to very large sum of money. That in fow cases
| they had been paid under what was called pro
| test. That no protest had been made to the C1ty
Council nor had there becn my coercion OF legal
process and that there WAS was much rarnGe IN fe
recommending that the prayer OF tho petitioners
be not granted and that tho parties be left to their
legal remedies should they see fit to pursue them
The report was adopted by Council and there
has been no other action Of Council thereon, e!-
cent the reference to me upon Mr. Burckmeyer's
recent petition. c..-o..,, ,e
Rich, D. S18) it was held that if one voluntarily,
with knowledge Of all the facts, paid tax which
was afterwards declared to be illegal, it could not
be recovered back. 1t Was voluntary payment
not under coercion Of legal process, and was
waiver Of all legal exception. In delivering the
opinion of the Court, Judge Butler says: 1T woulo
these, after money has been expended upon the
assumption that it was lawfully acquired, ana par.
ticularly after the payment OF 1t may nave peer
acauiesced in, during nearly the whole period o.
| the statute Of limitations"
| by one under distinct protest, on the ground o.
ilegality, while the question is being 1qdlciaMly =
tested by others, it may be recovered back II tne
tax be declared illegal. In the case 9f inns tnls
| paid into the Treasury and disbursed IN public
expenditures. As appears by the report, some
| had protested and some had not; some had pro-
tested in writing and some verbally; some on one
ground and some on another. Under these cir.
cumstances, it was deemed adyisa ble to leave tae
parties to their legal remedies, they though,
proper to resort to them, and 30 make no Gus
criminstion between the many cltlzens, an Q!
whom had been paying this tax during the Perloc
| of four years. Thus Council would refund IN al
/ cases where the courts thought the parties res
| pectively entitled to recover.
The returns Of that day are lost, and it canno,
now be ascertained in what form MIR. Burckmyo!
protested. But there can be no doubt that he die
protest, and, in all probability, in as decided
form ga any, The object Of report was to let tnt
Court determine what was In esch case sufnclen
protest. and 80 lay down the rule or rules by whicf
Council should be governed in this as we'll as II
isimilar cases.
A demand like this is barred in four years j
There be no suit, and no proof OF promise o.
acknowledgement. The most favorable view OF thu
protestants is that the statute began to run non
the time chat the tax is declared illegal. Perhap
the more correct legal view is that it began to ru,
from the time OF payment. 1t does not appear
that MIR. Burchneyer commenced SUIT y Deior' LOT
April 1885, The taxes were paid IN 1878, i64S, ioo
and 1851, and the tax was declared illegal in 1852
When therefore, this matter came before M
AGAIN. after this long lapse OF time, IN the snap
Of writ, I felt it my duty to plead the statute
limitations on behalf Of Council. Ut ls my auty =
and y case q sa ta IN
waive them, or any Of them, under particular on
cunstances, they may 30 direct.
T have no doubt MIR. Burckmeyer did apply +
the Mayor and hold conversations with him, but
not find that there was any a SINCE
report in 1862 nor any promise or acknoWiedg
ment of the claim on Their part. In other words
I do not see anything to take the case out or tn
statute, If it be insisted. on.
Ihaye endeavored to state, as correctly as! Gnu
ASCERTAIN them the facts OF this case, and M
Vows Of the law touching it. It 1s in the optlol
of Council to say whether the plea of the statut
shall be urged or waived. ,,>nu,,n
City Attorney.
REPORT OF TIE ooMm1rTEE OF WAYS AND MEANS
MADE AT A. REGULAR MEETING OF COUNCIL, Hell
| ON MTH FEBRUARY, 1859.
The Committee of Ways and Means, to whom
VIA referred the petitions Of John G: Burckmye
and Lewis Jervey, agent for Miss Rutledge, pray
ing for q release of tux paid upon dividends OF
Bank Stock, and to confer with the City Attorne
thereon, beg leaye to report that they have consl
dered the matter referred, and tnd that take
upon Bank dividends have been paid TO tn
amount of SIS, 900, during period OF folr years
and that. in few cases, they have been paid un
>der what has been called o protest upon the re
/ turn. but in the vast majority OF cases wlthou
any such objection. In no case was any Protes
made to the City Council, nor dld Cennch Pas
/ any resolution that the taxes should Do fefar4e'
4 II found to be illegal -.
These protests vary in form. In one case th
i objection is put on the.ground lthst the tax
4 unequal and oppressive, IN comparison Wlts
other subjects OF taxation, (not that It Is legal
and in others it takes more general shnpe, Will
out any specification Of reason or ground what
eyfI The Committee aro adysea that i. is e.tremol
doubtful whether the sums paid can be recovere
back in any Of these cases, inasmuch as they wer
not paid under coercion Of any legal process, ap
that this view is sustained by the principle OF tn
decision in Robinson us. the City Council, where
il Was held that non-residents Of the city who ha
4 paid ahigher price for badges than residents, un
j der an ordinance which was declared to be Illegal
4 taxVss laid in good faith by the City Council an
the;money thus collected has been expanded 70
public purposes, upon. the assumption that 40 va
lawfully acquired.
i Those who did not resist the TAI nave contrlpu
ted to the error; and to refund this large amour
now would work great injustice to those who ar
i burden upon different persons and in diferen
i proportions from what it would have fallen at tn
| time.
that the PRAYER Of the petitioner be not granted
and that The parties be left to their legal reme lies
should they see fit to prosecute them:
fHg2ed q. y, "A GORDON,
$50 l''e1s1l 20 JNO. H. HONOUR,
4 CHAS. D. CARR.