Opinion
15139
April 8, 1940.
Before MERCHANT, J., County Court, Spartanburg, February, 1940. Exceptions overruled and appeal dismissed.
Action by J.H. Rothrock, as special tax collector for the City of Spartanburg, against D.L. Oakman, for delinquent taxes assessed against defendant on property within the corporate limits of the city with penalties and costs thereon. From an order overruling defendant's demurrer to the complaint, the defendant appeals.
The complaint and order of Judge Merchant, directed to be reported, follows:
COMPLAINTThe plaintiff, J.H. Rothrock, as special tax collector of the City of Spartanburg, complaining of the defendant, D. L. Oakman, alleges:
1. That the City of Spartanburg is a municipal corporation of the State of South Carolina; and that as a body politic it is an integral part of the sovereign state, with power and authority to impose taxes on all real and personal property within the corporate limits of the City of Spartanburg for corporate purposes, and to sue for the collection of said taxes, together with penalties thereon as a debt of the party against whom the same shall be charged.
2. That J.H. Rothrock is the duly appointed, qualified and acting special tax collector of the City of Spartanburg charged with the duty and empowered to collect in its behalf all such delinquent taxes and penalties thereon due by defaulting taxpayers to the City of Spartanburg; and that, as special tax collector of the City of Spartanburg, plaintiff has been duly authorized and directed to prosecute the within action in behalf of the City of Spartanburg.
3. That defendant is a resident of Spartanburg County, South Carolina.
4. That defendant is indebted to plaintiff as the delinquent tax collector of the City of Spartanburg on account of delinquent and unpaid taxes legally assessed, levied, and charged against defendant on property within the corporate limits of the City of Spartanburg with legal penalties and costs thereon in the aggregate amount of $3.74, as shown by the verified statement of unpaid taxes and penalties hereto appended, marked "Schedule A" and made a part of this complaint.
5. That no part of said debt has been paid; that demand has been made upon defendant for payment; and that payment has not been made.
Wherefore, plaintiff prays for judgment against defendant in the amount of $3.74, together with the costs and disbursements of this action.
SCHEDULE A -------------------------------------------------------------- Year Property Assessed Amount Penalties Total Valuation of Tax and Costs -------------------------------------------------------------- 1935 Personal $30.00 $1.56 $2.18 $3.74 -------------------------------------------------------------- Total, $3.74 -------------------------------------------------------------- ORDER OF JUDGE MERCHANT This is an action commenced in this Court by plaintiff, J. H. Rothrock, as special tax collector of the City of Spartanburg, against the defendant, D.L. Oakman, by service of summons and verified complaint.In due course, the defendant interposed a demurrer to the complaint, and it is upon defendant's demurrer that the case now comes before this Court. The demurrer, which has been fully argued before this Court by counsel for the respective parties, contains multiple grounds, but appears to raise only two main questions. These are: (1) The right and capacity of plaintiff to maintain the action, and (2) the sufficiency of the facts alleged in the complaint to constitute a cause of action. The questions will be disposed of seriatim.
Under a fair construction of the complaint, the following ultimate facts are alleged: The complaint in concise but sufficient language sets out that the City of Spartanburg is a municipal corporation of the State of South Carolina; that, as a body politic, it is an integral part of the State, with power to impose taxes on all real and personal property within its corporate limits for corporate purposes, and to sue for the collection of such taxes, with penalties thereon, as a debt of the party against whom the same shall be charged; that J.H. Rothrock is the appointed, qualified, and acting special tax collector of the City of Spartanburg charged with the duty and empowered to collect in its behalf of such delinquent taxes and penalties due by defaulting taxpayers to the city; that, as such special tax collector of the City of Spartanburg, he has been authorized and directed to prosecute the within action in behalf of the City of Spartanburg; that the defendant Oakman is indebted to plaintiff in behalf of the City of Spartanburg for delinquent and unpaid taxes and penalties in the aggregate amount of Three Dollars and Seventy-four Cents ($3.74) on account of taxes for the year 1935 levied upon personal property of defendant within the corporate limits of the city, assessed for taxation at a valuation of Thirty ($30.00) Dollars, upon which the amount of tax is One Dollar and Fifty-six Cents ($1.56) and penalties of Two Dollars and Eighteen Cents ($2.18), making an aggregate amount of Three Dollars and Seventy-four Cents ($3.74) due by defendant; that no part of said debt has been paid; and that demand for payment has been made and refused. Plaintiff prays for judgment against defendant for Three Dollars and Seventy-four Cents ($3.74), together with the costs of this action.
Brief reference is here made to certain general statutes of the State which appear to be applicable to the first question raised by the demurrer. Section 2569, Code of Laws of South Carolina, 1932, amongst other things, declares that all taxes, assessments, and penalties legally assessed shall be considered and held as a debt payable to the State by the party against whom the same shall be charged.
Section 2863 of the Code, 1932, amongst other things, provides that the State may bring suit in Court for back taxes at any time within ten years from the date when they should be paid.
Section 7470 of the Code, 1932, provides, amongst other things, that in municipalities containing more than 5,000 inhabitants, the city, for the purpose of collecting city taxes and penalties, shall have the power to enforce the payment of same against defaulting taxpayers to the same extent and substantially in the same manner as is provided by law for the collection of State taxes and penalties, except that executions to enforce the payment of such taxes shall be issued by the clerk and directed to the chief of police or other officer designated by the city for that purpose.
It has been held under these sections that the city is an integral part of the State and in proper proceedings has a right to sue for the collection of taxes. City of Greenville v. Textile Hall Corporation, 185 S.C. 406, 194 S.E., 66.
In the case of DePass v. City of Spartanburg, 190 S.C. 22, 1 S.E.2d 904, 911 (an action to set aside a tax sale held June 7, 1937, by the City of Spartanburg to satisfy city taxes on certain property for the years 1930 through 1935), the Supreme Court, in granting the relief sought, said: "The assessed taxes are a debt due to the State by the owner of the property. Section 2569, Civil Code, 1932, declares that: `All taxes, assessments and penalties legally assessed shall be considered and held as a debt payable to the State by a party against whom the same shall be charged.' The City has its right of action against the owners of the property when the taxes were assessed thereon."
Under the above-cited statutes and decisions of the Supreme Court of this State, the following conclusions are inevitable:
(1) That all taxes, assessments, and penalties legally assessed are a debt payable to the State by the party against whom the same shall be charged and are personal liabilities of the taxpayer;
(2) That the State may bring suit in Court upon such personal liability of the taxpayer and recover judgment for delinquent taxes and penalties at any time within ten years from the date due;
(3) That the City of Spartanburg is an integral part of the State, and as such, has the same right to sue for the collection of back taxes and penalties as does the State; and
(4) A right of action exists in behalf of the City of Spartanburg in the instant case for the collection of past-due taxes and penalties due the city by the defendant Oakman for the year 1935.
See, also, Weatherly v. Medlin, 141 S.C. 290, 139 S.E., 633; Fuller v. Payne, 96 S.C. 471, 81 S.E., 176, Town of Cheraw v. Turnage, 184 S.C. 76, 191 S.E., 831.
The defendant takes issue with the right of the plaintiff to maintain the within action in behalf of the City of Spartanburg. Section 7470 of Code of 1932 specifically provides that enforced collection of municipal taxes and penalties shall be by the chief of police or other officer designated by the city for that purpose. The complaint in this case alleges as a fact that the plaintiff is the duly appointed, qualified, and acting special tax collector of the City of Spartanburg charged with the duty and empowered to collect in its behalf all delinquent taxes and penalties due by defaulting taxpayers, and that, as special tax collector of the City of Spartanburg, plaintiff has been duly authorized and directed to prosecute the instant action in behalf of the City of Spartanburg. It therefore appears that the plaintiff has been designated by the City of Spartanburg as its fiscal authority to collect in its behalf delinquent taxes and penalties, with specific authority to prosecute actions of the kind here involved. Where there is a duly constituted fiscal authority for the purpose of collecting taxes, it is proper that an action of this kind be brought by such fiscal officer in his name in behalf of the State or its subdivisions. See State ex rel. Daniel v. Textile Hall Corporation, 185 S.C. 406, 194 S.E., 66; City of Greenville v. Textile Hall Corporation, supra. The general rule on this point is stated in 61 C.J., 1060, thus: "Subject to the general rules as to parties in civil actions, and the particular statutory provisions of the various jurisdictions governing actions for taxes, suits for the collection of delinquent taxes are usually to be brought in the name of the officer authorized to collect the tax." In view of the authorities cited and the allegations of the complaint, it seems clear that the complainant has the capacity to prosecute this action against defendant for the collection of past-due taxes and penalties. The present action is in behalf of the City of Spartanburg, and, needless to say, judgment in favor of plaintiff would inure to the benefit of the city.
The second question raised by plaintiff that the complaint fails to state facts to constitute a cause of action has in the main been settled by the preceding portions of this order. As stated above, the complaint alleges, as ultimate facts, that the defendant is indebted to plaintiff as the special tax collector of the City of Spartanburg in the amount of Three Dollars and Seventy-four Cents ($3.74) for delinquent and unpaid taxes levied for the year 1935 on personal property of defendant within the corporate limits of the City of Spartanburg duly assessed for taxation at a valuation of Thirty ($30.00) Dollars, the amount of the tax being One Dollar and Fifty-six Cents ($1.56) and the penalties and costs being Two Dollars and Eighteen Cents ($2.18), making a total of Three Dollars and Seventy-four Cents ($3.74).
It is the settled rule of pleading in this jurisdiction that only ultimate facts need be alleged. The rule as applied in a suit for the collection of taxes is stated in the case of State v. Cheraw D.R. Co., 54 S.C. 564, 32 S.E., 691, 696, as follows: "As stated in 25 Am. Eng. Enc. Law, 320: `The complaint or declaration should show a prima facie valid tax, and the property against which, and person upon whom, it is a charge. It should show the jurisdiction of the Court over the subject-matter, and that the property is delinquent. It need not aver how and by whom the levy and assessment were made'."
I find that the complaint now under consideration fully meets the requirements of this rule. All necessary ultimate facts have been alleged by the plaintiff. The tax ordinance of the city for the year 1935 need not be set out in the complaint in haec verba, as argued by defendant. It is sufficient that its substance be alleged. The complaint here does so.
All grounds of the demurrer raised by defendant have been considered and are overruled. The demurrer of defendant admits the truth of all allegations of fact in the complaint. Upon the facts alleged, it is clear that plaintiff is entitled to judgment against defendant for the amount of Three Dollars and Seventy-four Cents ($3.74), together with the costs of this action.
It is therefore ordered that the demurrer of defendant be, and the same hereby is, overruled; and it is further ordered that plaintiff, J.H. Rothrock, as special tax collector of the City of Spartanburg, have judgment against the defendant, D.L. Oakman, for the amount of Three Dollars and Seventy-four Cents ($3.74), together with the costs of this action.
Messrs. DePass DePass, for appellant, cite: As to manner of levy and collection of taxes: 54 S.C. 574; 96 S.C. 471; 81 S.E., 176; 185 S.C. 406; 194 S.E., 66. Capacity to sue: 44 C.J., 4660. Allegations necessary in complaint: 61 C.J., 1398; 54 S.C. 578; 32 S.E., 691; 64 S.C. 564; 32 S.E., 691; 49 C.J., 545; 104 S.C. 268; 34 S.C. 541; 21 S.C. 323; 63 S.C. 325.
Messrs. Johnson Johnson, for respondent, cite: Capacity to sue: 185 S.C. 406; 61 C.J., 1060. Pleadings: 190 S.C. 22; 1 S.E.2d 904; 141 S.C. 290; 139 S.E., 633; 96 S.C. 471; 81 S.E., 176; 184 S.C. 76; 191 S.E., 831; 34 S.C. 564. Collection of cost and penalty: 185 S.C. 443; 194 S.E., 330. Appeal: 175 S.C. 254; 178 S.E., 819.
April 8, 1940. The opinion of the Court was delivered by
This appeal is from an order dated February 16, 1940, overruling a demurrer to the complaint in the action, which was commenced in the Spartanburg County Court on July 7, 1939. Also involved is the appeal of the defendant from an order of the same Court settling the "case" (Transcript of Record) for the appeal.
The order overruling the demurrer directed that judgment be entered against defendant in the amount sued for, and costs. Upon the filing of such the defendant, appellant here, served notice of a motion for modification of the order to the end that the movant be allowed to answer; and there were served with the notice an affidavit and exhibits thereto. The motion for modification was granted, whereby the portion of the order rendering the money judgment was rescinded and the defendant was given leave to answer; this by supplemental order dated February 24, 1940.
Although the notice of appeal to this Court refers to the original order and the supplemental order, the latter was favorable to the appellant and he very naturally has not excepted thereto or otherwise attacked the propriety of it in any particular. But he insisted upon inserting in the record for appeal the motion papers upon the supplemental order, which the trial Court, by the allowance of amendments proposed by respondent, refused to permit. From the last-mentioned order "settling the case" and dated April 23, 1940, the defendant also appealed, but we think his exceptions thereabout are not well founded and they are overruled. It is necessary only to point out that no exception challenges the correctness of the supplemental order so that it need not be considered by this Court, wherefore the proceedings thereon have no proper place in the record for this appeal. See the rules of this Court and the decisions found in West's Digest, Appeal and Error, 559, 560.
All of the numerous exceptions of the appellant have been carefully considered but are found to be without merit. Discussion of them would add nothing to the well-considered order dated February 16, 1940, of his Honor, the County Judge, which is adopted as a part of the judgment of this Court and will be reported. For a full understanding of it the complaint will also be reported.
All exceptions are overruled and the appeal dismissed.
MR. CHIEF JUSTICE BONHAM, MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.