The order of the Circuit Judge dismissing the petition for the injunctive relief sought does no more than hold that "the remedy provided for the recovery of taxes paid under protest in Section 29 of Act No. 574 of 1928 [Code 1932, § 2548] is to be liberally construed in favor of the taxpayer so as to allow the recovery of documentary taxes paid under protest."
The opinion of MR. JUSTICE CARTER, proposing to affirm the order of the Circuit Court does not discuss the issues, but expresses satisfaction with the conclusion of the lower Court.
The amount involved in this action is small, but the principle involved is one of far-reaching interest. It would seem, then, to be desirable that the issues be stated, and reasons for the conclusion of the Court be set out.
The issue made by the sole exception is that the holding of the Circuit Court is erroneous for that the remedy provided by the Act of 1928 "is only for the recovery of license *Page 122 taxes; and since the tax in question is not a license tax, but a documentary tax, the Act * * * does not apply."
Or, stated in another way: The sole question herein is, has the appellant such adequate remedy at law as precludes his demand for equitable relief?
The claim for injunctive relief seems to be predicated upon a narrow and technical construction of a statute. No satisfactory reason is given why this course should be taken, to the manifest interference with the collection of this special class of taxes. It is stated in argument, and on denial thereof is attempted to be made, that there are now held up in the State from collection, by the injunctive processes of the Courts, several hundreds of thousands of dollars of taxes, to the serious detriment of the fiscal business of the State.
We are at a loss to understand how it will work more of a hardship upon the person who is called upon to pay a documentary tax to pay it under protest and sue to recover it, than it is to bring suit to enjoin its collection. On the other hand we readily see how the latter proceeding will seriously interfere with the orderly conduct of the State's business. It would seem then that the Act in question is entitled to the liberal construction given it by the Circuit Judge rather than the very contracted one sought by appellant.
The question herein arises upon the construction of the Act of the General Assembly of South Carolina approved March 10, 1928, Act No. 574, 35 St. at Large, pp. 1089, 1140, 1141. The Act is one "to Raise revenue for the * * * state government." It provides for the levying and collecting of license taxes on many commodities therein named, and for documentary taxes, for taxes submitted on bids for contracts, and for individual contracts, etc. The issue now up for determination turns upon the proper construction of Section 29 of the Act, in order to decide whether the remedy therein provided for the recovery of license taxes applies as well to the recovery of documentary taxes. *Page 123
The Act, and especially Section 29, has received consideration at the hands of a Court composed of three Federal Judges, in the case of Graniteville Mfg. Co. v. Query et al. (D.C.), 44 F.2d 64, 67, which case has been affirmed by the United States Supreme Court, in 283 U.S. 376,51 S.Ct., 515, 75 L.Ed., 1126. The holding of that Court is that the remedy provided relates only to license taxes, and, since no remedy is provided for documentary taxes by action at law, the right of injunctive relief is applicable.
We have the highest respect for the persons and the opinions of the learned Jurists who composed this special Court. But, inasmuch as our interpretation of the statute does not coincide with theirs, we are not bound by it. It is not necessary to cite authorities to show that the Supreme Court of this State is the first and final authority for the interpretation of the statute laws of this State. And when such interpretation is given Federal Courts are bound by it.
So much of Section 29 (Code 1932, § 2548) as is necessary to the correct understanding of the matter in controversy is quoted:
"That the collection of the license taxes imposed under the provisions of said sections shall not be stayed or prevented by any injunction, writ or order, issued by any Court or judge thereon. In all cases in which any license or tax (italics added) is required to be paid hereunder by any person, firm or corporation, and the Tax Commission shall claim the payment of the taxes so assessed, or shall take any step or proceedings to collect the same, the person, firm or corporation against whom such license taxes are charged, or against whom such step or proceedings shall be taken, shall, if he conceives the same to be unjust or illegal for any reason, pay the said taxes notwithstanding, under protest. * * *
"That the person, firm or corporation so paying said license taxes may at any time within thirty (30) days after making such payment, but not afterwards, bring an action *Page 124 against the said South Carolina Tax Commission for the recovery thereof," etc.
The learned Judge who wrote the opinion of the Federal Court says this: "From the portions of this section which we have italicized, it appears clear that the remedy provided is only for the recovery of license taxes. It is true, that in one place the language used is `license or tax'; but when the whole section is read it will be seen that only license taxes may be paid under protest and recovered, and the expression `license or tax' is either an inadvertence, or else the words `license or tax' were used as synonymous."
We venture to argue that a more reasonable supposition is that the "inadvertence" to which the above allusion applies, consists in this: The writer of the section having, in his provision against the issuing of any process to stay the collection of taxes, "inadvertently" spoken of license taxes only, in the very next sentence remedied the "inadvertence" by saying: "In all cases in which any license or tax is required to be paid," etc.
No one has suggested why the Legislature should purposely exclude the payers of documentary taxes from the benefit of the provision of the Act which permits the payment of other taxes under protest and their recovery by suit at law. Nor why the State should be hindered and delayed in collecting this particular class of taxes by injunction while enjoining the collection of every other class is prohibited.
Respondent's counsel in their brief suggest that Section 2846, Code Laws 1932, provides that the collection of property taxes shall not be stayed by injunction and provides a remedy at law for their recovery.
The Income Tax Act 1927 (Act Oct. 12, 1926, 35 St. at Large 22, § 32) provides that collection of this tax shall not be enjoined and provides a remedy at law, viz., payment under protest and action to recover. *Page 125
The Inheritance Tax Law provides for appeal from the tax commission to this Court, thereby providing a remedy at law which forestalls injunctive relief.
The Electric Power Tax Act (Act May 9, 1931, 37 St. at Large, p. 357, § 4) provides for the payment of the tax under protest, and suit to recover a remedy at law.
The Chain Store Act (Act April 5, 1930, 36 St. at Large, p. 1384) is to the same effect.
The Act of 1928, now under review, relates to many classes of taxes, besides the documentary tax. The taxes on stocks, bonds, etc.; the taxes on various articles of merchandise; and it may be remarked that in the matter of tobacco in its various forms the payment of the license taxes must be evidenced by affixing stamps to the several packages or parcels. There are included in the Act taxes on places of amusement. Here, too, stamps, designated by the Act as "Documentary Stamps" must be affixed to the tickets. Then there are soft drink license taxes, and, in certain instances, stamps must be affixed to the bottles. There are license taxes for contractors, and chain stores. The Act itself, at times, refers to these license taxes simply as taxes.
Again it is asked what sound reason has been given or can be given for the conclusion that only the documentary taxes required to be placed on debentures, etc., are to be outlawed; to be deprived of the "benefit of clergy" allowed to every other class of taxes? It is against the settled policy of the State in such cases.
We may say that in our opinion the case of WesternUnion Telegraph Company v. Query et al., 144 S.C. 250,142 S.E., 509, is not controlling here. The question involved in this case was not properly before that Court, and the reference to it which appellant cites and relies upon its obiterdictum.
We think the interpretation which we give the Act of 1928 is fully within its terms and purview. Judge Townsend *Page 126 was correct in saying that it fell within the liberal construction which he gave it. His order should be affirmed.