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

| WI Poi"tioHS uOlllS DuSl-
ness III this state. The case now un-
der consideration was then brought by
thc Ware Shoals Company, domes-
tic corporation, to secure the iude-
ment or the court as TO domestic cor
poratlns, and if the supreme court had
Followed its first decision in the
British and American case it would
nave nullificd the law of 1904 COM
pletely. But Attorney General Lyon,
representing the Comptroller Gener-
al, liled a petition for rchearing in
the British and American case, and
not only secured the rehearing but
secured decision reversing the for
mer decision of the court. Now the
court follows this up with another de-
clSl"n sustaining Inc Act of 1904. The
opinion in the Ware Shoals case was
tllcd today. 1t is written by Chief
Justice Pope.
This was an application to the Sill
preme court in its original jurisdic-
ton for an injunction against the
Comptroller General restraining him
from proceeding under the Act of
l9O4, amended in 1905, to assess and
charge against the petitioner a tax Of
onc-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 t" proceed to collect same as di-
rcrtcd in The Act. A rule to show
cause why the injunction should not
be granted was issued on March %,
l9o7, and temporary injunction is
sued. The petition alleged in brief
that the Act in question is mconsti-
tutionaI, null and void and that the
respondent is proceeding entirely
wlthou! authority cf law.
g In considering the cause" saws
Chief Justice Pope, eve are met at
the ouset with preliminary ques-
tions OF grave Importance. The first
OF these is whether or not this court
has jurisdiction to near the matter,
and IN ease it find the Act unconsti-
tutional, as alleged, it can then 90
forward and grant the Injunction
prayed for Section 412 of the Civil
Cote "l 1902 provides: 'Thc collrc-
ton of taxes shall not be stayed or
prevented by an injunction, writ or
order issued by Il court or iudma
thcrc"f.' The Chief Justice points ont
that the Constitution gives the Sill
preme court the right to issue writs,
orders of mandamus, injunction, etc.,
and the question arises whether the
legislature in view of this conslitu-
t'onal grant of power can prevent the
court from issuing writ restraining
tn" collection of taxes. The question
mas been cXhauStively considered in
several eases cited. the court holdinm
that such action on the part of the
legislature was valid. In all these
eases, however, the petitioner had an
adequate remedy at law, paying I'M
der protest and suing for recovery.
IN all eases this remedy might not be
adequatc.' says tn, Chief Justice.
For instance. suit cannot be
brought against the stale without the
state : consent. and this principle
may he applied to this case. since the
lax IN question is not collected like
other taxes. but is collected by the
II '"mptlnllcd 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 4l2, Of the Civil Code. He
holds that the right to enjoin the col
lection Of illegal taxes is not taken
away by tine statute cited.
Considering, then, the constitutions
aity Of the License Tax Act OF 1904,
the Chief Justice notes the points on
which its validity is questioned and
decides, rs in the British and Amer
'ean Mortgage Company's case that
the Act is constitutional, and the pc
titlon Is therefore dismissed.