Opinion
14566
November 10, 1937.
In the original jurisdiction. April, 1937. Injunction granted.
Action by the Home Building Loan Association against the City of Spartanburg and others in the original jurisdiction of the Supreme Court for an injunction.
Report of W.C. Cothran, Special Referee, follows:
By agreement of counsel in this case, the only question involved on the part of the plaintiff is the validity of the penalty on the 1936 taxes. Of course the plaintiff does not abandon the various positions taken and which were passed upon in the report on case No. 2, 194 S.E., 139, nor does the defendant abandon the questions raised as to want of jurisdiction of the Court and as to the demurrer. All of the attorneys realize that the same questions need not be repeated in this case. In fact, they might have agreed that the report in case No. 2 should apply in full to case No. 1, as the only point involved in case No. 1 has been fully considered in case No. 2. The only difference in the two cases is that in one case the plaintiff was the owner of the property alleged to be taxable and in the other case was the holder of mortgages upon the alleged taxable property. This distinction in the two cases would not affect the conclusions reached.
Following the reasoning set forth in case No. 2 as to the penalty, I recommend that the position as taken by the plaintiff be not sustained.
In order to obviate any possible confusion in these cases, I adopt in this case, No. 1, the various conclusions and recommendations as are set forth in the report of case No. 2, especially refraining from expressing an opinion as to those grounds presented to Judge Oxner, determined by him and now on appeal to the Supreme Court.
It naturally follows that, but for the questions involved in the case now on appeal, which questions are not passed upon by me, my recommendation would be that the complaints in both cases, No. 1 and No. 2, be dismissed.
Messrs. DePass DePass for plaintiff, cite: Validity of tax sale: Sec. 2855, Code 1932: 67 S.C. 526; 180 S.C. 382; 138 S.C. 187; 61 C.J., 1556; 43 C.J., 255; 141 S.C. 207; 138 S.C. 374. Taxes paid under protest: Sec. 2846, Code 1932: 78 A.L.R., 186; 49 S.C. 188; 27 S.E., 1; 181 S.E., 453; 108 A.L.R., 209; 78 S.C. 211; 168 S.C. 112; 51 C.J., 1167. Proper parties: 61 C.J., 1663, 1664; 32 C.J., 480; 44 C.J., 4520; 69 S.E., 569; 525 So., 957; 78 S.C. 217; 171 S.C. 295., 295. Construction of statutes: 8 Kan., 448; 3 Neb. 30; 1 N. McC., 227; 138 S.C. 374; 51 L.R.A. (N.S.), 407; 141 S.C. 207; 92 S.C. 394; 75 S.E., 687; 49 L.R.A. (N.S.), 958. Messrs. Odom Bostick and Esten C. Taylor, for defendants, cite: Construction of statutes: 134 S.E., 403; 167 U.S. 196; 42 L.Ed., 134; 202 U.S. 429; 50 L.Ed., 1090; 98 Pac., 1002; 26 R.C.L., 55; 35 L.R.A., 188. Lien: 141 S.C. 302; 139 S.E., 122; 171 S.C. 326; 172 S.E., 122; 181 S.C. 453; 187 S.E., 921.
November 10, 1937. The opinion of the Court was delivered by
The issues raised by this case, which is before the Court in its original jurisdiction, are, with the exception of certain additional grounds referred to in the report, the same as those raised on the appeal from the decision of his Honor, Judge Oxner, in an action between identical parties. This case was argued together with two other cases of identical title, one of which was on appeal from Judge Oxner's decree, and were heard at our October term, 194 S.E., 139; 194 S.E., 143. As will be seen, by reference to the three cases, the issues are largely interrelated with one another.
This cause was referred to Hon. W.C. Cothran, as Special Referee, for the purpose of taking the testimony and reporting his findings of law and fact to this Court. The plaintiff excepts to the report.
For the reasons given by the Special Referee, we adopt his report as the judgment of this Court. Let it be reported. It will be observed that the only question passed upon by the special referee had to do with the validity of the penalty on the 1936 taxes, which he decided adversely to the plaintiff. The ultimate judgment in this case, however, must be in favor of the plaintiff. It is entitled to the relief prayed for in the complaint (except as to the penalty on the 1936 taxes) upon the issues not passed upon by the Special Referee, but which have been determined in its favor by this Court, in the case heard by Judge Oxner.
A permanent injunction will, therefore, be issued, enjoining and restraining the City of Spartanburg, its agents and servants, from making conveyance of the property described in the complaint, to the City of Spartanburg, or to any other person.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and BAKER concur.
MR. JUSTICE CARTER did not participate on account of illness.