The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1892-02-17


up seriatinl, but we will consider tie
questions we think raised by them il
what seems to Us the most natural order.
I. Is this one of the cases which comes
within the purview Of sections III and
26e of the general statutes in which i IS
provided that no court or any judge Of
any court shall issue any writ or injunc-
ton, mandamus or other writ or order or
process of any kind? The prohibition III
session III is only in cases of the collec-
ton of taxes and in sec. 269 it IS only Ill
cases of any officer of the State charged
with duty in the collection Of taxes.
No reference is made in either section to
either restriction Oh the court in the mat
ter Of assessments Of taxes, and the latter
section, 269, in the words the person
against whom any taxes shall stand
charged upon the books Of the county
treasurer" ought certainly to be held to
refer to such taxes as are there properly
and regularly charged. In the clse of
the State VS.. County Treasurer, i South
Carolina, $40, the statute as it therein
stood was held constitutional by a divided
court, Oh. J. Moses dissenting. This was
case against the county treasurer for
writ of prohibition il which the opinion
Of the court was delivered by Associate
Justice Willard, and in which Associate
Justice Wright concurred. In the case
of the State VS.. Gilliard, II South Caro-
lima, 3o9, the application was to the
court for a writ of mandanlus directed to
the county treasurer commanding him to
receive bills of the bank Of South Caro-
lima for taxes.
In this case, Chief Justice McIver, then
associate justice, concurred solely OH the
ground that the constitutiouality of the
act had been settled by the case of the
State VS.. the County Treasurer, supra.
In Chenille VS.. Tribble, 25 S. c., 10,
the action was brought to enjoin the
county treasurer from collecting certain
taxes for railroad purposes. The consti-
tutiouality of these provisions was again
the subject Of discussion Mr.. Justice
Mc-Iver concurred with Chief Justice
Simpson as to their constitutionality, the
former solely on the ground that the mat
ter had been settled in the preceding
cases. Mr.. Justice MCGOWAN, associate
justice, dissented in an opinion in
which he quoted from the dissenting
opinion of Chief Justice Moses III the
State vs.. the County Treasurer supra, the
following language: The power to tax is
the most extensive and unlimited Of all
the powers which Legislative body can
exert. It is without restraint except by
constitutional limitations
"To tie up the hand that can alone
resist its unlawful encroachments would
not only render uncertain the tenure by
which the citizen holds his property, but
make it tributary to the uncertain demand
of the Legislature.
The language is quoted to show the i'm
portance Of a strict construction Of these
sections of the General Statutes which
prohibit the courts from exercising pow
ers given to them by the constitution to
protect the citizen in his right of prop
erty against the demands ofa public off,
Ger which he claims to be without author
ity of law.
It will be noticed that all three Of those
case arose in reference to the officer
charged with the collection of taxes; in
the first case the prayer was for wri. of
prohibition; in the second for a writ of
and in the third for a writ of
In ex parte Lynch, IS South Carolina,
81, the application wa. for 1nandamus
against the comptroller general, an officer
whose duties refer to tue listing and as
sessment of property for taxation. Con-
stitutional questions were raised in the
cases. The n1anda1nus was refused but it
is important to notice that in the case no
claim was made that the prohibitions of
sections III and 269 applied to the comp
troller general. There was no interference
with the collection Of taxes.
It has never been questioned that the
validity of all assessment of property for
taxes, so far as depends on the regularity
of proceeding on the part Of the auditor
and other officers who are charged there
with, can be tested by .he court in an
other way than by action to recover each
the tax paid under protest as provided in
section 26S of the General Statutes.
It is we'll settled in this State that in
any court in which title is set up to land
which has been sold for taxes the valid
itv Of the tax title can be called into ques-
ton.
The tax title under section 3I3 of the
General Statutes IS only presumptuous
evidence that every prerequisite ofthe law
has been compiled with.
The proof Of irregularities may be made
bv evidence akiunde and thereby the as
shows to have been irregular
end void and the title derived from it to
be invalid.
The question has never been made
whether the method prescribed in section
26S, General Statutes, is necessary OF even
applicable il cases of a regular method Of
proceeding by officers charged with the
assessment of property as contradistin-
guished from officers charged with the col
lection Of taxes.
We hold therefore that there is nothing
in sections III and 26o which prohibit the
courts from exercising proper control over
officers charged with the listing and as
of property of citizens for the
purpose Of tax returns when thew proceed