stating "[t]he power of taxation is a legislative power, and knows no limitations, except those imposed expressly or by plain implication in the State or Federal Constitution," and noting "[t]he legislative power of the people of the State of South Carolina is vested in the General Assembly"Summary of this case from Weaver v. Recreation Dist.
November 11, 1942.
Before E.H. HENDERSON, J., Spartanburg County, February, 1942. Affirmed in part and remanded in part for further proceedings.
This is an action by the trustees of Wofford College, an eleesmosynary corporation chartered by an Act of the South Carolina Legislature, to enjoin the City of Spartanburg and certain of its official 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. The plaintiff claims exemption from such taxes by reason of certain Acts of the legislature of South Carolina. A pendente lite restraining order was issued; and defendant answered, raising the principal issue of the constitutionality of the Acts in question. Upon an agreed statement of the facts the case was heard by the presiding judge of the Seventh Circuit. Judge Henderson filed a decree declaring the Acts in question to be unconstitutional, and allowing the plaintiff ten days within which to pay the taxes in dispute. A consent order was taken, continuing the restraining order pending an appeal. From the judgment the plaintiff appeals.
The decree of Circuit Judge E.H. Henderson, unanimously adopted as the opinion of the Court, follows:
The plaintiff, the trustees of Wofford College, is an ellemosynary corporation chartered by an Act of the General Assembly of South Carolina; and it is operated without pecuniary profit for the education of young men.
It is the owner of an endowment fund, the income from which is used in the award of scholarships and for supplementing the income necessary for the operation of the college. Prior to 1929, a large part of the endowment fund was invested in first mortgages of real estate, most of which was located in the City of Spartanburg.
There are nine pieces of property involved in this action, all of which were acquired by the plaintiff prior to the commencement of this action, through foreclosure of real estate mortgages given to secure loans made from the endowment funds of the college. All of the properties are located in the City of Spartanburg. Some of them are improved and some of them are unimproved. In each case plaintiff alleges that the income from the property was not sufficient to pay the taxes. None of the property involved was ever occupied by the college. The purpose of this suit, among other things, is to adjudicate the claims of the plaintiff to the claimed tax exemptions. The sole legal question to be passed on by the Court at this time is the constitutionality and validity of certain Acts of the General Assembly under which the tax exemptions are claimed and which are hereinafter considered.
The plaintiff contends that by reason of certain Acts of the legislature passed in 1932, 1935, and 1936, the properties involved in this action are exempt from taxation and asks that the City of Spartanburg, its agents and representatives, be restrained from attempting to collect the taxes levied and assessed on account of the said properties because of the exemptions granted by said Acts.
Plaintiff also asks for the injunction against a collection of said taxes upon other grounds which are not before the Court at the present time.
The defendant, in their answers, among other defenses contend that the Acts of the legislature are invalid and of no effect, for the reason that they violate Article X, Section 4, of the Constitution of 1895, in that they attempt to exempt from taxation real estate beyond the buildings and premises actually occupied by the college.
The cause now comes before me on an application for an injunction, at the Fall, 1941, term of the Court of Common Pleas and has been fully argued by able counsel for both sides.
In 1932, the General Assembly passed an Act, which is as follows:
"An Act of exempt from taxation certain real estate belonging to eleemosynary institutions and educational institutions in the State.
"Section 1. Real Estate Owned by Orphanages and Educational Institutions Exempt from Taxes for Five Years. — Be it enacted by the General Assembly of the State of South Carolina: That all real estate owned, now or hereafter, by orphanages and educational institutions in this State acquired by gift, devise, or under proceedings for the foreclosure of mortgages securing loans made by orphanages and educational institutions as an investment of their endowment funds and other trust funds, until such real estate can be disposed of, be, and the same is hereby, exempt from taxation, for a period of five years unless the income from said property during that period becomes sufficient to pay the taxes.
"§ 2. 1931 Taxes to be Abated. — That all taxes for the year 1931 charged against the real estate referred to in Section 1 of this Act shall be abated by proper authority.
"§ 3. That all Acts or parts of Acts inconsistent with this Act are hereby repealed.
"§ 4. This Act shall take effect upon its approval by the Governor.
"Approved the 6th day of April, 1932."
(Acts of 1932, page 1457.)
This Act was amended in 1935, so as to make it more clear and definite. Acts of 1935, page 234.
Subsequently, in 1936, another Act was passed by the Legislature, as follows:
"An Act to exempt from taxation certain real estate belonging to eleemosynary institutions and educational institutions in the State.
"Whereas many schools, colleges, and other institutions of learning, and many charitable institutions in the nature of asylums for the infirm, deaf and dumb, blind, idiotic and indigent persons, and many orphanages, in this State having trust or endowment funds, have hitherto invested them in obligations secured by mortgages of real estate in this State; and,
"Whereas on account of economic conditions many of these institutions have been compelled to take title to such real estate; and,
"Whereas said trust or endowment funds were exempt from taxation under an expressed provision of the Constitution of this State as long as they were represented by obligations of indebtedness above referred to; and,
"Whereas in keeping with the spirit of the Constitution it is desirable that the exemption from taxation of such trust or endowment funds shall continue and shall apply to said property even though it may temporarily be represented by titles to real estate,
"Section 1. Certain Real Estate of Orphanages and Educational Institutions Exempt From Taxes. — Be it enacted by the General Assembly of the State of South Carolina: That all real estate owned, now or hereafter, by orphanages and educational institutions in this State, acquired under proceedings for the foreclosure of mortgages securing loans made by orphanages and educational institutions as investments of their endowment funds, and also trust funds, be and the same is hereby exempt from taxation, including taxes due at the time of foreclosure sale and now unpaid, for a period of five years, unless the income from said property during that period becomes sufficient to pay the taxes. Provided, That Cherokee County be exempted from the provisions of this bill.
"§ 2. All Acts or parts of Acts inconsistent with this Act are hereby repealed.
"§ 3. This Act shall take effect immediately upon its approval by the Governor.
"Approved the 6th day of June, 1936."
Acts of 1936, page 1652.
These statutes, which were passed subsequent to the enactment of Section 2578, subdivision 4, of the Code, fully cover the facts of the present case, and so the question to be decided is: Are the Acts constitutional and valid, or are they in conflict with the proviso of Article X, Section 4, of the Constitution?
That section provides: "Section 4. There shall be exempted from taxation all county, township and municipal property used exclusively for public purposes and not for revenue, and the property of all schools, colleges and institutions of learning, all charitable institutions in the nature of asylums for the infirm, deaf and dumb, blind, idiotic and indigent persons, except where the profits of such institutions are applied to private uses; all public libraries, churches, parsonages and burying grounds; but property of associations and societies, although connected with charitable objects, shall not be exempt from State, County or municipal taxation: Provided, That as to real estate this exemption shall not extend beyond the buildings and premises actually occupied by such schools, colleges, institutions of learning, asylums, libraries, churches, parsonages and burial grounds, although connected with charitable objects."
In approaching this question we must keep in mind the well-recognized principle that the Court should not declare an Act of the General Assembly unconstitutional unless its invalidity appears beyond a reasonable doubt and every presumption must be indulged in favor of its constitutionality. McKiever v. City of Sumter, 137 S.C. 266, 135 S.E. 60.
The legislative power of the people of the State of South Carolina is vested in the General Assembly. It is not a body of delegated power, as is the Congress, but its legislative power is supreme, unless limited by the Constitution itself.
The broad scope of this legislative power is very clearly set forth in the case of Duke Power Company v. Bell, where it is said: "The supreme Legislative power of the State is vested in the General Assembly. State v. Aiken, 42 S.C. 222, 20 S.E. 221, 26 L.R.A. 345. The provisions of the State Constitution are not a grant but a limitation of legislative power, so that the Legislature may enact any law not expressly, or by clear implication, prohibited by the Constitution of the State or nation. Fripp v. Coburn, 101 S.C. 312, 85 S.E., 774. The power of taxation is a legislative power, and knows no limitations, except those imposed expressly or by plain implication in the State or Federal Constitution. 26 R.C.L. 86. `The power to prescribe what property shall be taxed implies the power to prescribe what property shall be exempt, and, in the absence of a special constitutional provision to the contrary, the Legislature may exempt such classes of property from taxation as in its opinion the public policy of the State requires.' 26 R.C.L. 297, § 262; Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct., 427, 29 L.Ed. 680; Note, 19 L.R.A. 78. Within such constitutional limitations `the necessity, utility, and expediency of legislation are for the determination of the Legislature alone.' Santee Mills v. Query, 122 S.C. 158, 115 S.E. 202, 203." Duke Power Company v. Bell, 156 S.C. 299, 152 S.E., 865, 869.
The legislature, then, having very great power to exempt property from taxation, unless expressly or by plain implication limited by the Constitution itself, the question now before me narrows down to the inquiry: Is Article X, Section 4, such a limitation or restriction upon the legislative power, insofar as real estate of colleges not actually occupied by them is concerned?
This section, standing alone, would seem to leave little doubt that it was the intention of the framers of the Constitution that real estate of colleges, other than the buildings and premises actually occupied by them, should not be exempted from taxation.
All provisions of the Constitution, however, should be construed together, and if possible, meaning given to each section; and so Section 4 of Article X must be considered in connection with Section 1 of the same Article.
Article X, Section 1, provides: "Article X. Section 1. Taxation and assessment. — The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe regulations to secure a just valuation for taxation of all property, real, personal and possessory, except mines and mining claims, the products of which alone shall be taxed; and also excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes; Provided, however, That the General Assembly may impose a capitation tax upon such domestic animals as from their nature and habits are destructive of other property: And provided, further, That the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business."
We see, then, that the legislature has wide power to exempt property from taxation for educational purposes, and we must determine whether this power is restricted, as applied to real estate of colleges not actually occupied by them, by the proviso of Section 4.
A very clear statement of the relation to each other of these two Sections is found in the case of Chester County v. White Bros., where it is said: "The fundamental error of the circuit court is in holding that the phrase `municipal purposes,' used in section 1, in conjunction with property, means the same thing as `municipal property,' used in section 4 and that the exemption might have been omitted from section 1, or section 4 might have been omitted altogether, and the same meaning accomplished as is compassed by the two sections. This method of construction violates the rule which requires that the language of a constitution should receive a natural and reasonable construction, and that different portions thereof should, if possible, receive a construction which would give some meaning to each of such provisions. The construction by the circuit court would strike from the Constitution the provision in section 1, and also excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes.' The phrase `as may be exempted by law does not simply mean, `as may be exempted by Section 4, article 10, of the Constitution,' but clearly includes such exemptions as the Legislature may lawfully make for the purposes named. This provision of the Constitution implies than the Legislature has the power to exempt property from taxation for municipal or other specified purposes, provided the exemption is not expressly or impliedly prohibited by other portions of the Constitution. It is a well-established principle that the Legislature has all the power not denied it by the Constitution expressly or by necessary implication. Section 4, article 10, is mandatory, and is self-executing, so that further legislation would not be necessary to exempt from taxation all property falling within the specified classes, and the Legislature would have no power to tax what is therein exempt. But this section, in so far as it exempts property, is not a limitation on the power of the Legislature to make further exemptions falling within the exceptions contained in Section 1, Section 4 declares that the specified property shall be exempt, while Section 1 permits legislative discretion in exempting other property not named in Section 4, provided the exemption is for municipal purposes or other purposes named. The Constitution does not require that all property shall be taxed, but it only requires that all property not exempt under the Constitution, and not exempt by a valid act of the Legislature shall be taxed. So that, whenever the right of the Legislature to exempt property from taxation is disputed, the question is whether such exemption is expressly or impliedly forbidden by the Constitution. If the exemption falls within the classes named in section 4, we need go no further. If the exemption does not fall within section 4, then we may inquire if it falls within the legislative discretion to make exemptions, implied in Section 1. If the exemption does not fall directly within either of these sections, then the question might still remain whether the sovereign power of the Legislature is so far restricted by the Constitution as not to permit the exemption made — as, for example, wearing apparel, or a limited amount of provisions for the present subsistence of the family." Chester County v. White Bros., 70 S.C. 433, 50 S.E., 28, 32.
This case, and the Bell case, dealt with a municipal purpose, not with an educational purpose, and so the question of the effect of the proviso of Article X, Section 4, did not arise in those decisions.
It is true that the White case says: "But this section [Article X, Section 4], in so far as it exempts property, is not a limitation on the power of the Legislature to make further exemptions falling within the exceptions contained in Section 1"; but Section 4, including the proviso, does more than exempt property, it definitely states that real property not occupied by colleges shall not be exempted.
The White case further states: "Section 4 declares that the specified property shall be exempt, while Section 1 permits legislative discretion in exempting other property not named in Section 4, provided the exemption is for municipal purposes or other purposes named." The proviso, however, does "name" real estate not occupied by colleges and expresses a purpose that it is not to be exempted.
It will be noted that in the White case it is said: "This provision of the Constitution [Article X, Section 1] implies that the Legislature has the power to exempt property from taxation for municipal or other specified purposes, provided the exemption is not expressly or impliedly prohibited by other portions of the Constitution."
And in the Bell case, we find: "The power of taxation is a legislative power, and knows no limitations, except those imposed expressly or by plain implication in the State or Federal Constitution." Also, "In the absence of a special constitutional provision to the contrary, the Legislature may exempt such classes of property from taxation as in its opinion the public policy of the State requires."
In the case of Clarke v. Public Service Authority, the Court said: "In the matter of taxation the Legislature has full power in the absence of some constitutional provision." And, "Under our form of government the Legislature is given plenary power in the matter of taxation, subject, of course, to express constitutional limitation." Clarke v. South Carolina Public Service Authority, 177 S.C. 427, at page 444, 181 S.E., 481, at page 487.
It is clear, then, that the power to exempt from taxation for educational purposes is not altogether unlimited, but may be restricted by other provisions of the Constitution itself.
In my opinion, the proviso of Article X, Section 4, is such a restriction, when applied to real estate of colleges not occupied by them, as the two sections must be read together.
Construing them together, I think that the power of the legislature to exempt property from taxation for educational purposes does not extend so far as to permit it to exempt real estate of a college, which is not occupied by it, as Section 4 expressly states that such property shall not be exempted.
I do not think that it can be held that the words "That as to real estate this exemption shall not extend beyond the buildings and premises actually occupied," used in the proviso of Section 4, mean that, insofar as the self-executing provisions of Section 4 alone are concerned, the real estate not occupied by colleges is not by that section exempted, but that the legislature may, if it sees fit to do so, go ahead and exempt it under Section 1, for educational purposes. Such a construction, in my opinion, would nullify the very clearly expressed statement of the Constitution that such real estate is not exempted. It would not seem likely that the Constitution would declare as the fixed and settled policy of the State that the real estate of colleges not occupied by them should not be exempted, and at the same time and in the same article of the organic law should intend that the desired purpose should not be carried into effect.
I do not think that the meaning of the word "this" is confined to Section 4. The Constitution does not say "this Section"; it says "this exemption." "This exemption," in my opinion, does not mean "this exemption provided for by Section 4"; but means "this exemption of College real property authorized by the Constitution."
I am of the opinion that, taking the two sections together, the meaning is that the General Assembly may, if it sees fit to do so, exempt property for educational purposes, with the exception that the real estate of colleges and other named institutions, not actually occupied by them, is not to be exempted.
In the Epworth Orphanage case, the demurrers of the County of Clarendon and of the Town of Manning were sustained by his Honor Judge Featherstone, on the sole ground that it did not appear that the income from the property was insufficient to pay the taxes.
The statement in the Circuit Decree that the Acts of 1932 and 1936 are valid and good and not obnoxious to the Constitution was evidently not intended to mean that the Acts were valid and constitutional as regards Article X, Section 4, of the constitution, since the Supreme Court, 185 S.C. on page 252, 193 S.E., on page 647, fully explained its construction of the language used by the Circuit Judge, and says it is taken to mean that the Acts amend the Act of 1896, Section 6, and amend Section 2578, subdivision 10, of the Code; or else, that it means that its property is exempt from taxation when occupied by it and used exclusively for its maintenance and support.
The exact language of the Supreme Court is as follows:
"He holds that the acts of 1932 and 1936 [citing them] are not obnoxious to the Constitution, but are `valid and good.' This language is tantamount to saying that they alter or amend section 6 of the act of 1896, and that they alter and supersede the exceptions set forth in Section 2578 of the Code, subdivision (10), which is in these words: `All property belonging to institutions of purely public charity and used exclusively for the maintenance and support of such institutions.'
"Or else the language of the decree means to say that Epworth Orphanage comes within the class named in section 2578 as `an institution of purely public charity,' and that its property is exempt from taxation when occupied by it and is used exclusively for the maintenance and support of it."
This follows a statement that the Circuit Judge "likewise holds that `Orphanages are, of course, asylums for indigent children,' and that under the constitutional provisions pertaining to such institutions the plaintiff's property is exempt from taxation only as to that which is actually occupied by it."
In affirming the Circuit decree, the Supreme Court carefully set forth its interpretation of the decree, and after setting forth the Acts of 1932, 1935, and 1936, said that there was no allegation that the income was insufficient to pay the taxes, and "for this reason, his honor sustained this ground of demurrer."
The Court stated, also, that "we think the decree and order of Judge Featherstone, as we have construed them, are in accord with the view we have herein expressed. Therefore, they are affirmed, and the appeals in both cases are dismissed."
This case, then, in my opinion, decides only one question, insofar as it bears upon the present action, that the property was subject to taxation, because even under the Acts of 1932, 1935, and 1936, there is no allegation in the complaints that the income was insufficient to pay the taxes.
The Supreme Court did not find it necessary to pass upon the constitutionality of the Acts, following the well settled and very proper practice that the Court will not pass upon the constitutionality of a Statute when it is not necessary to do so to arrive at a correct decision of the case.
I do not think, then, that it can be said that the Supreme Court in that case held that the Acts are constitutional under Article X, Section 4, and this is borne out by the fifth headnote of the case, though that, of course, is not a part of the opinion of the Court.
In the Strong case the Circuit decree held that Section 4 of Article X, in the proviso, "prohibits any exemption of real estate beyond the grounds and buildings actually occupied by the same" [ 185 S.C. 203, 193 S.E., 650]; but it was also held that under the Acts of 1932 and 1935 there was no allegation that the income from the property was insufficient to pay the taxes.
Both the Circuit decree and the first headnote to the decision clearly state that "any attempt of General Assembly to exempt from taxation real estate other than the grounds and buildings actually occupied by charitable institution is unconstitutional and void."
The Supreme Court affirmed the order of the Circuit Judge, and said: "The issues in these two cases are practically identical with those heard and decided in the cases of Epworth Orphanage v. Wilson and Epworth Orphanage v. Town of Manning, which cases were heard by Judge Featherstone, whose disposition of them was in accord with the views announced by him in the two cases here present. His decree and order in the other two cases were affirmed by this Court ([ 185 S.C. 243] 193 S.E., 644), and the appeals in the two cases now on appeal are controlled by that opinion."
The order of the Circuit Judge was affirmed.
My conclusion is that the Acts in question attempt to exempt real estate of colleges not actually occupied by them, and that consequently they are unconstitutional, insofar as such property is concerned.
It is therefore adjudged that the Acts of 1932, page 1457; of 1935, page 234; and of 1936, page 1652, are unconstitutional and void, as being in conflict with Article X, Section 4, of the Constitution, insofar as they apply to the real estate of colleges not actually occupied by them.
It is ordered, adjudged and decreed that the injunction prayed for by the plaintiff be, and it is hereby, refused.
It is further ordered that the restraining order heretofore issued by his Honor Judge Featherstone shall remain in force and effect for a period of ten (10) days after notice to plaintiff of the filing of this decree, during which time plaintiff shall have the right to pay the taxes charged against the properties involved herein, together with any penalties and costs due thereon, and redeem the said properties from any tax sales thereof complained in this action.
Messrs. Carlisle, Brown Carlisle, of Spartanburg, Counsel for Appellant, cite: As to Art. X, Sec. 4, Const. 1895, exempting certain property from taxation, not being a limitation on the power of the Legislature to make further exemptions falling within exceptions contained in Sec. 1 of Art. X, Const. 1895: 70 S.C. 433, 50 S.E., 28; 185 S.C. 243, 193 S.E., 644; 185 S.C. 203, 193 S.E., 649; 185 S.C. 313, 194 S.E., 139; 102 S.C. 494, 86 S.E., 1069; 121 Va., 812, 93 S.E., 652; 108 S.C. 66, 93 S.E., 422; Code of S.C. Sec. 2578 (10), and Acts of 1932 and 1936; Code of 1932, Sec. 2579 et seq.; 156 S.C. 299, 152 S.E., 865; Potter's Dwarris, pages 126, 145-6; 3 S.C. 423; 185 S.C. 313, 194 S.E., 139; 196 S.C. 491, 13 S.E.2d 600; 192 S.C. 271, 6 S.E.2d 270; 192 S.C. 101, 5 S.E.2d 560; 179 S.C. 188, 183 S.E., 705; 141 S.C. 207, 139 S.E., 386; 113 S.C. 99, 101 S.E., 285; 82 S.C. 242, 64 S.E., 238; 8 S.C. Eq. (Bail.), 208; 60 Ill., 86; 143 Mich., 73, 106 N.W., 698; Cooley's Const. Lim., page 71; 77 W. Va., 144, 87 S.E., 178; 68 W. Va., 49, 69 S.E., 456. As to Rule for Construing Provisos: (a) "Provided", 104 S.C. 342, 88 S.E., 894; 131 S.C. 144, 126 S.E., 622; 186 S.C. 337; 191 S.C. 271, 2 S.E.2d 36; 195 S.C. 267, 10 S.E.2d 718; 25 R.C.L., 984; 985; 32 Cyc., 743-4; 104 Minn., 270, 116 N.W., 835; 50 Fla., 293, 39 So., 929; 26 Utah, 26, 71 P., 1060; 11 Wall, 652, 20 L.Ed., 235; 19 Wall, 227, 22 L.Ed., 80; 72 Md., 481, 19 A., 1045, 8 L.R.A., 680; 173 F., 585, 97 C.C.A., 535, 19 Ann. Cas., 1080, 26 L.R.A. (N.S.), 388; 66 W. Va., 136, 66 S.E., 104, 27 L.R.A. (N.S.), 388; 174 Mo., 125, 73 S.W. 623, 61 L.R.A., 593; Endlich on Interpretation of Statutes, Sec. 186; Sedgwich on Construction, page 226; 25 R.C.L., 985, 986, 987; 112 S.C. 528, 100 S.E., 355; 40 Ct. Cl., 408; 235 Ill., 116, 85 N.E., 320; 174 Ind., 651, 92 N.E., 374; 181 Mich., 599, 148 N.W., 381; 59 Wn., 360, 109 P., 1071; 139 N.C. 397, 41 S.E., 920; 112 S.C. 528, 100 S.E., 355-(b), "This," 28 Cyc., 286; 14 S.C. 35; 137 Ga. 531, 73 S.E., 729; 221 U.S. 559, 55 L.Ed., 853, 31 S.Ct., 688; (Ky.), 284 S.W. 415, 48 A.L.R., 1402 (c), "Exemption," 18 Cyc., 1374; (Me.), 49 L.R.A., 294; Webster's Dictionary. As to Power to Exempt being co-extensive with Power to Tax: 156 S.C. 299, 152 S.E., 865; 177 S.C. 427, 181 S.E., 481; 192 S.C. 308, 6 S.E.2d 473; Annotation, 2 A.L.R., 471; 75 S.C. 62, 55 S.E., 136; 75 S.C. 34, 54 S.E., 833; 106 S.C. 292, 91 S.E., 257; 153 S.C. 106, 149 S.E., 760; 122 S.C. 158, 115 S.E., 202. As to when "Primary Rules of Construction" are inapplicable: 104 S.C. 342, 88 S.E., 894; Potter's Dwarris, p. 202; 86 S.C. 419, 68 S.E., 561; 188 S.C. 75, 198 S.E., 184; 89 S.C. 371, 71 S.E., 992; 171 S.C. 571, 172 S.E., 857. As to Rule for construing Ambiguous Instruments: 129 S.C. 480, 124 S.E., 761; 184 S.C. 210, 192 S.E., 159; 70 S.C. 433, 50 S.E., 28; 131 S.C. 144, 126 S.E., 622; Potter's Dwarris, pp. 144-5; 134 S.C. 402, 132 S.E., 680; 139 S.C. 107, 137 S.E., 211; 114 S.C. 511, 104 S.E., 182; 116 S.C. 466, 108 S.E., 186; 131 S.C. 1, 126 S.E., 747; 56 W. Va., 18, 48 S.E., 746; 214 N.C. 634, 200 S.E. 418; 11 A.J., pp. 662, 665. As to Intent controlling construction: 1 Cranch, 137, in 41 S.C. 220, 19 S.E., 458; 13 S.C.L. (2 McC.), 12; 16 S.C. 32; 129 S.C. 480, 124 S.E., 761; Story on Constitutions, Sect. 399; Potter's Dwarris, p. 662; Id., p. 175; (W.Va.), 48 S.E., 746; 180 S.C. 491, 186 S.E., 395; 188 S.C. 288, 198 S.E., 854; 166 S.C. 99, 164 S.E., 434; 188 S.C. 15, 198 S.E., 409; 177 S.C. 286, 181 S.E., 30; 82 S.C. 242, 64 S.E., 238; 112 S.C. 528, 100 S.E., 255; 131 S.C. 144, 126 S.E., 622; 192 S.C. 271, 6 S.E., 2d 270; 130 S.C. 434; 126 S.E., 336; 180 S.C. 329, 185 S.E., 491; 195 S.C. 15, 10 S.E., 2d 160; 195 S.C. 472, 12 S.E., 2d 13; 104 S.C. 342, 88 S.E., 894; 160 N.C. 582, 76 S.E., 640; 19 R.I. 704, 36 A., 720, 36 L.R.A., 847; 117 Ga. 676, 45 S.E., 53; Cooley's Constitutional Lim., 514; 96 Kan., 50, 149 P., 977, L.R.A., 1916-A, 846; 81 Kan., 859; 106 Pa., 1082, 26 L.R.A. (N.S.), 702; Const. 1895, Art. XI, Sect. 5, Sect. 8. As to Legislative Powers — "Presumption Favors Preservation of Legislative Powers": 15 S.C. 592, 40 Am. Rep., 705; 16 S.C. 32; 4 S.C. 520; 162 S.C. 218, 160 S.E., 596; 177 S.C. 240, 181 S.E., 41; 11 A.J., p. 898; 17 A.J., pp. 668-9, Sect. 58; Potter's Dwarris, p. 117; 56 W. Va., 18, 48 S.E., 746; 68 W. Va., 49, 69 S.E., 456; (Vattel's 19th Rule), Potter's Dwarris, 128; 92 S.C. 469, 75 S.E., 873; 92 S.C. 393, 75 S.E. 866; 70 Fla., 102, 59 So., 771; (Wyo.), 222 p., 35; (Wyo.), 212 P., 771; 190 S.C. 270, 2 S.E., 2d 777; 186 S.C. 290, 190 S.E., 539; 191 S.C. 271, 2 S.E.2d 36; 138 S.C. 445, 136 S.E., 757; 181 S.C. 10, 186 S.E., 665; 99 U.S. 309, 25 L.Ed., 387; 217 N.C. 632, 9 S.E.2d 365; 219 N.C. 342, 13 S.E., 2d 618. As to Legislative and Contemporary Construction of and History of Legislation favoring Educational Institutions with Tax Exemptions: Act of 1793, Vol. V, Stat. of S.C. p. 226; (1801), Vol. V, Stat. of S.C. p. 419; Vol. V, Stat. of S.C. p. 443, 471, 484, 704, 730. . . . ; Const. 1868, Art. IX, Sects. 1 and 5; Stat. at Large for 1868 (about 6 mos. after adoption of Const.); Codification for 1873, p. 45; 14 Stat., 542 (1971); Code Sects. 2579-29, 2578-30, 2578-38, 2578-40, 2578-43, 2578-44, 2578-45, 2588, 2593; 11 A.J., 718; Sedgwich on Construction, pp. 412, 413; 14 S.C. 194, 50 L.R.A. (N.S.), 346; 40 S.C. 373, 19 S.E., 5; 11 A.J., pp. 697, 698; Potter's Dwarris, p. 147, p. 656; Endlich on Interpretation of Statutes, Sec. 73. As to Endowment Funds losing exemption under Art. X, Sect. 4, Const. 1895, on temporary change of form into real estate, pending re-conversion, in order to protect the trust: Act No. 900, 1936; 19 A.J., p. 2; 133 S.C. 103, 130 S.E., 343; 19 A.J., 4; 131 S.C. 192, 126 S.E., 189; 42 A.L.R., 417; Annotations, 42 A.L.R., 426, and 12 A.L.R., 25; 19 A.J., p. 18; 63 S.C. 70, 40 S.E., 1026.
Messrs. Johnson Johnson, of Spartanburg, Counsel for Respondents, cite: As to validity of Acts exempting from taxation real estate of colleges beyond the buildings and premises actually occupied by the colleges: Act. No. 839, 1932, p. 1457; Act. No. 168, 1935, p. 234; Act. No. 900, 1936, p. 1652; Art. X, Sect. 4, Const. 1895; 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 219-244.
November 11, 1942.
After due consideration, we are of the opinion that the Honorable E.H. Henderson, who heard this case on Circuit, has reached the proper conclusions and decision of the issues involved. This Court is satisfied with his well considered decree, which it adopts as the opinion of the Court, and which will be reported.
This opinion is written per curiam in accord with a recently adopted rule pertaining to cases in which this Court unanimously adopts as its opinion the decree of the trial Judge.
MR. CHIEF JUSTICE BONHAM and MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE, and STUKES concur.
December 8, 1942.
On Petition for Rehearing.
We have read with care the petition for rehearing in this case, and we may state that the Court gave especially thoughtful care to the consideration of the Circuit decree in that case, from which the appeal came to us, realizing its importance to the educational institution interested therein, and we find no reason to change the views expressed in our opinion.
In the presentation of the appeal to the Court, the counsel for both parties laid stress almost entirely upon the one question of the constitutionality of the Acts involved in the consideration of the issues. We find nothing in the petition for rehearing which causes us to change our judgment that the Circuit Court was correct in its holding that the Acts relied upon to sustain the exemption claimed by the appellant are unconstitutional. We therefore adhere to our conclusion and decision that the decision of the Circuit Court be and is affirmed.
However, it appears that the Circuit Judge did not specifically pass upon the issues made in Paragraph 15, sub-paragraphs, b, c, d, and e of the complaint, which sub-paragraphs of Paragraph 15 of the complaint are as follows:
(b) "The lien for taxes three or more years past due and expired prior to the attempted issuance of execution, levy and sale;
(c) "The attempted execution, levy and sale included a 10% penalty, a 5% commission to the Special Tax Collector, and a $2.00 execution cost, in violation of the law and without authority of an ordinance of the said City of Spartanburg, as required by Section 7470 of the Statutes at Large, Vol. 38, page 128, passed March 10, 1933;
(d) "No warrant of execution or levy was served upon the plaintiff or its tenants or occupants or its predecessors, and no one acting for or on behalf of the defendants ever levied upon or took possession of said property for and on behalf of the City of Spartanburg.
(e) "I.T. Williams issued said execution without authority of any law or ordinance."
It is therefore ordered that the case be remanded to the Circuit Court for its action insofar as these matters are concerned, and that alone.
MR. CHIEF JUSTICE, BONHAM and MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES concur.