The appellant, Textile Hall Corporation, an eleemosynary corporation, owns a building and the land on which it is situate in the City of Greenville, South Carolina, which is used in the main for public purposes. By an Act approved May 27, 1936, (No. 910, Acts of 1936), the General Assembly directed the auditor of Greenville County to remove said property from the tax books of the said County, and the Clerk of the City of Greenville was likewise directed to remove said property from the tax books of the City of Greenville, for the purposes of taxation; and all acts or parts of acts inconsistent with that act were repealed.
Following the enactment of this Statute, this property of appellant was removed from the tax books and recognized to be exempt from County, municipal and school taxation; but in the early part of the year 1944, respondents, as tax officers, attempted to deal with the property as if it were subject to taxation. Upon the filing of the sworn petition herein, an order was issued out of the Court of Common Pleas for Greenville County requiring the respondents to show cause *Page 304 why they should not be required to strike the name of appellant from the tax books of Greenville County and of the City of Greenville as regards its textile hall, known as No. 322 West Washington Street in the City of Greenville, South Carolina. In other words, the order required the respondents to show cause why it should not be adjudged that the appellant's property hereinbefore referred to is not subject to such taxation, and why an order should not be issued requiring and directing the respondents in their official capacities so to treat the property.
Demurrers and returns to the rule were filed by respondents. The demurrer of the respondents W.H. Riddle and A.W. Hill (presumably in their official capacities) reads as follows:
I "That the complaint fails to state facts sufficient to constitute a cause of action against the defendants in that it appears upon the face of the complaint that this is an action to stay the collection of taxes by an injunction or order and that the plaintiff has a complete and adequate remedy at law and no other under Chapter 109, Article 3 of the Code of Laws, State of South Carolina, 1942.
II "That the complaint fails to state facts sufficient to constitute a cause of action in that it fails to allege that the property described in the complaint is exempt by the Constitution, in that all property in the State is liable to be taxed except such as is specially exempt by the Constitution of the State, and therefore the complaint is fatally defective.
III "That the Special Act No. 910, page 1666 of the 1936 Statutes of South Carolina, declaring the Textile Hall Corporation *Page 305 an eleemosynary corporation is illegal and invalid, and does not relieve plaintiff from the assessment of its properties for tax purposes:
"(a) It is a special law where a general law could be made to apply. It is therefore violative of Subdivision IX of Section 34, Article 3 of the 1895 Constitution of South Carolina.
"(b) It is violative of Subdivision III of Section 34, Article 3 of the 1895 Constitution of South Carolina, in that it attempts to amend or extend the charter powers and rights of said corporation.
"(c) It attempts to grant special charter or corporate rights to plaintiff in conflict with these permitted and authorized under the general statutory law of the State authorizing the incorporation of eleemosynary corporations."
It is unnecessary that the demurrer of the respondent, B. F. Dillard, City Clerk and Treasurer of the City of Greenville, be set out.
Following the service of the demurrers and returns of the respondents, the appellant moved to strike the demurrers (and also the answers or returns) upon the ground that the same were frivolous, and relied upon the following specifications:
"1. The defendants as public officers, cannot plead as excuses for failure to obey a Statute of South Carolina, that the Act is unconstitutional.
"2. The defendants as public officers cannot plead as excuses for failure to obey a special Statute, that another Statute of general application requires such violation, especially when the only plain meaning of the words used in the special Act is that an exception (and exemption) was created. *Page 306
"3. This is not an attempt to stay the collection of taxes, but the assessment thereof, and chapter 109, Article 3 of the Code of Laws, 1942, does not apply.
"4. If it were an action to stay the collection of taxes, it would not be contrary to the above Article (Section 2807,et seq.) of the Code of 1942 under the decisions of the Supreme Court, because plaintiff has no other adequate legal remedy.
"5. The other grounds are reserved."
The order of the Circuit Judge appealed from states:
"Under my view of the matter, it will only be necessary for this Court, in disposing of the matter to pass upon plaintiff's motion to strike defendants' demurrers as frivolous and that part of defendants' demurrers which question plaintiff's right to equitable relief, when it has a complete and adequate remedy at law."
Under the principles very clearly laid down by this Court in the case of Greenville County Fair Association, Inc., v.Christenberry et al., 198 S.C. 338, 17 S.E.2d 857, I do not think that in an action of the present character the respondents are in a position to question the constitutionality of the 1936 Act exempting the property of appellant from taxes; and in my opinion this action, liberally construed, was not an action to enjoin the collection of taxes but one to delete from the tax books the name of appellant insofar as the property hereinbefore referred to is concerned, said property having been unlawfully placed on the tax books, therefore, Section 2807 of the Code of 1942, prohibiting Courts by way of injunction, writ or order, to stay the collection of taxes, is not applicable. And it follows that Sections 2808 and 2809 of the Code of 1942 have no applicability. In this connection, and as sidelights, see State ex rel. Daniel et al. v. TextileHall Corporation, 185 S.C. 406, 194 S.E., 66; Town *Page 307 of Myrtle Beach v. Holliday, Tax Collector et al., 203 S.C. 25,26 S.E.2d 12.
Following the majority opinion to a logical conclusion, if the auditor of a county should arbitrarily place a church upon the tax books, although under the Constitution such property is exempt from taxation, the church would have to pay the tax under protest and sue for a refund thereof. It will not be questioned that the duty of an administrative official to obey the dictates of the General Assembly is not less than his duty to obey a constitutional mandate. As far as he is concerned, it is merely a question whether his duty is laid down by lawful authority.
I cannot believe that it was the intendment of the legislature that Sections 2807-2809 of the Code would have any applicability to a situation such as exists in this case. The principle of law in this case does not involve "the collection of taxes"; we are confronted with the broader issue whether a public official who is charged by law with the performance of a ministerial act can ignore the legislative mandate, and thereby deprive the Courts of jurisdiction to protect the citizens against the consequences of his admitted violation of the applicable statute. It is merely incidental in this case that the consequences of the violation of the statute deals with the subject of the statute; the underlying question is whether in any case a County or State administrative official can defy the legislative arm of the Government without subjecting himself to judicial restraint in the form of compulsion to do only what the legislature has directed him to do.
Where property is placed on the tax books in the face of a statute specifically exempting it from taxes, it is an arbitrary act on the part of the tax officials which should not be dignified by so broad a construction of said sections of the Code as is given by the majority opinion. *Page 308
For the foregoing reasons, I respectfully dissent from the majority opinion in this case. The demurrers of respondents should have been stricken and the returns to the rule declared to be insufficient; and the property of the appellant as described in the petition and rule to show cause should have been declared not subject to county, municipal or school taxation; and the respondents in their official capacities should have been required and directed to make the proper entries to this effect upon the official books in their possession and to perform each and every official function necessary to carry such order into effect.