The herald and news. [volume] (Newberry S.C.) 1903-1937, 1907-09-24

NSN~-
pany. but by implication it applied to
all foreign corporations doing busi-
ness in this state. The case now un-
der consideration was then brought by
the Ware Shoals Company, a domes-
tic corporation, to secure the judg-
ment of the court as to domestic cor
poratins, and if the supreme court had
followed its first decision in the
British and American case it would
have nullifed the law Of 1904 COM
pletely. But Attorney General Lyon,
representing the Comptroller Gener-
al, filed a petition for rehearing in
the British and American case, and
not only secured the rehearing but
secured a decision reversing the for
mer decision of the court. Now the
court follows this up with another de-
cision sustaining the Act of 1904. The
opinion in the Ware Shoals case was
filed today. It is written by Chief
Justice Pope.
This was an application to the su-
preme court in it's original jurisdic-
ton for an injunction against the
Comptroller General restraining him
from proceeding under the Act Of
1904, amended in 1905, to assess and
charge against the petitioner tax Of
one-half Of one mill upon each dollar
Of its capital stock paid in and out
standing, amounting to $500, and up
on refusal of the petitioner to pay
said tax within the time stated in the
Act to proceed to collect same as di-
rected in the Act. A rule to- show
cause why the injunction should not
be granted was issued on March %,
1907, and a temporary injunction is
sued. The petition alleged in brief
that the Act in question is uneonsti-
tutional, null and void and that the
respondent is proceeding entirely
without authority of law.
"In considering the cause,' says
Chief Justice Pope, "we are met at
the ouset with preliminary ques-
tons Of grave Importance. The first
of these is whether or not this court
has jurisdiction to near the matter,
and in case it find the Act unconsti-
tutional, as alleged, it can then 60
forward and grant the injunction
prayed for. Section 412 of the Civil
Code Of 1902 provides: The collec-
ton of. taxes shall not be stayed or
prevented by an injunction, writ or
order issued by court or judge
thereof The. Chief Justice points out
that the Constitution gives the su-
preme court the right tc issue writs,
orders Of mandamus, injunction, etc.,
and the question arises whether the
legislature in view Of this constitu-.
tional grant Of power can prevent the
court from issuing a writ restraining
the collection Of taxes. The question
mas been exhaustively considered in
several cases cited, the court holding
that such action on the part Of the
legislature was valid. In all these
cases, however, the petitioner had an
adequate remedy at law, paying un-
der protest and suing for recovery.
In all cases this remedy might not be
adequate," says the Chief Justice.
For instance, suit cannot be
brought against the state without the
states consent, and this principle
may be applied to this case, since the
tax in question is not collected like
other taxes, but is collected by the
.Comptrolled General and paid into
the state treasury direct.
The Chief Justice then reviews the
law existing prior to the Constitution
of 1869 in regard to the recovery Of
taxes illegally paid, and the effect
of the constitutional provisions and
of Section 412, of the Civil Code. He
holds that the right to enjoin the COL
lection of illegal taxes is not taken
away by the statute cited.
Considering, then, the constitution
atty Of the License Tax Act Of 1904,
the Chief Justice notes the points on
which it's validity is questioned and
decides, as in the British and Amer
lean Mortgage Company's case that
the Act is constitutional, and the pc
tition is therefore dismissed.