Opinion
15465
November 11, 1942.
Before E.H. HENDERSON, J., Spartanburg County, February, 1942. Affirmed in part and remanded in part for further proceedings.
Action brought by Converse College, an eleemosynary corporation chartered by the South Carolina Legislature, to enjoin the City of Spartanburg and certain of its officials from delivering to the City of Spartanburg, or to any one whomsoever, deeds for property belonging to plaintiff alleged to have been sold under execution for taxes levied by said City of Spartanburg. Plaintiff claims that, under certain Acts of the legislature, said lands are exempt from taxation. A restraining order, pendente lite, was issued, and defendants answered, raising the principal issue of the constitutionality of said Acts. The case was heard by the presiding Judge of the Seventh Circuit upon an agreed statement of facts, resulting in a decree declaring the said Acts to be unconstitutional and allowing plaintiff ten days within which to pay the taxes. By consent an order was taken by plaintiff continuing the restraining order, pending an appeal. From the judgment entered plaintiff appeals.
Messrs. Lyles Daniel, of Spartanburg, Counsel for Appellant, cite: As to Art. X, Sec. 4, Constitution of 1895, exempting certain property from taxation, not being a limitation on power of the Legislature to make further exemptions falling within exceptions contained in Section 1, Art. X, Const. 1895: Art. X, Sec. 4; Art. X, Sec. 1; 15 S.C. 481; 16 S.C. 32; 156 S.C. 299, 152 S.E., 855; 162 S.C. 218, 160 S.E., 596; 92 S.C. 469, 75 S.E., 873; 190 S.C. 270, 2 S.E.2d 777; 186 S.C. 290, 195 S.E., 539; 191 S.C. 271, 2 S.E.2d 236; 138 S.C. 445, 136 S.E., 757; 152 S.C. 445, 150 S.E., 269; 137 S.C. 266, 135 S.E., 60; 129 S.C. 171, 123 S.E., 651; 70 S.C. 433, 50 S.E., 28; Act. 839 (1932), amended in 1935; Act 900 (1936); 137 S.C. 515, 135 S.E., 538; 92 S.C. 469, 75 S.E., 873; 111 S.C. 205, 97 S.E., 58; 116 S.C. 412, 107 S.E., 581; 185 S.C. 243, 193 S.E., 644; 185 S.C. 203, 193 S.E., 649; 62 S.C. 28, 39 S.E., 785; 193 A., 46, 326 Pa., 526; 121 N.E., 63, 285 Ill., 469; 56 N.W., 782, 86 Wis. 189, Suth. Statutory Construction, 223; 46 N.E., 791, 166 Ill., 64; 174 S.C. 422, 177 S.E., 668; 162 S.C. 218, 160 S.E., 596. As to Endowment Funds losing exemption under Art. X, Sec. 4, Const. 1895, on temporary change of form into real estate: Preamble to Act 900 (1936); 63 S.C. 70, 40 S.E., 1026, 57 L.R.A., 606; 131 S.C. 144, 126 S.E., 622; 186 S.C. 337, 195 S.E., 840; 196 S.C. 79, 12 S.E.2d 851.
Messrs. Johnson Johnson, of Spartanburg, Counsel for Respondents, cite: As to constitutionality of Acts of the Legislature exempting certain property: Act No. 839, of 1932, at page 1437; Act No. 168, of 1935, at page 234; Act No. 900, of 1936, at page 1652; Const. 1895, Art X, Sec. 4; 70 S.C. 433, 50 S.E., 28; 185 S.C. 203, 193 S.E., 649; 185 S.C. 243, 193 S.E., 644; American Digest System, "Taxation", Keys 19-242.
November 11, 1942.
The questions involved in this appeal are the same as those in the case of Trustees of Wofford College, Appellant, v. City of Spartanburg et al., Respondents, 200 S.C. 315, 23 S.E.2d 9, and by the opinion of this Court in the latter, just filed, the decree of the Circuit Court was adopted as the judgment of this Court and ordered reported. The Circuit decree in the instant case is in material respects the same and it therefore need not be reported.
After careful consideration, appellant's exceptions are overruled for the reasons stated in the decree, and the judgment affirmed.
MR. CHIEF JUSTICE BONHAM and MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES concur.
December 8, 1942.
ON PETITION FOR REHEARING
The petition for rehearing of the appeal in this cause has been carefully considered and it is denied for the reasons stated in the order on a similar petition in the companion case of Trustees of Wofford College, Appellant, v. City of Spartanburg et al., Respondents, 200 S.C. 315, 23 S.E.2d 9, which order in the latter case is filed concurrently herewith.
As in that case, identical issues are made by the answer in the instant case in similar language, contained in Paragraph 15 of the complaint, which issues were not passed upon by the Circuit Court, whose decree was adopted as the judgment of this Court.
It is therefore ordered that this case be remanded to the Circuit Court for its action insofar as these particular matters are concerned, to wit, those designated (b), (c), (d), and (e), subparagraphs of Paragraph 15 of the complaint, and for that purpose only.
MR. CHIEF JUSTICE BONHAM and MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES concur.