Opinion
11732
April 1, 1925.
Before WILSON, J., Greenville, November, 1924. Affirmed.
Three actions, by Ed C. Curdts and Vardy McBee, by Ed C. Curdts and Robert Wilson, and by S.L. McBee, against the South Carolina Tax Commission, brought under Revenue Act 1923, § 22 (33 St. at Large, p. 28), to recover taxes paid under Section 11, subd. (e), on admissions to places of amusement conducted by plaintiffs, wherein the constitutionality of Section 11, subd. e, was attacked on grounds, first, that it was a special law where a general law would suffice, violative of Const., 1895, Art. 3, § 34, Subd. 9; second, that tax was not uniform and equal, but discriminatory, in that it exempted places of amusement located in unincorporated towns and villages having population of less than 2,000, and collegiate and public school amusements and swimming pools, where picnic grounds were maintained free, and because it exempted admissions to places of amusement where proceeds inured directly to religious, charitable, educational, or eleemosynary organizations, or to agricultural or industrial societies or associations; and, third, on the ground that it was a taking of property without due process of law, in violation of Const. S.C., Art. 1, § 5, or Const. U.S. amend. 14. From judgment for defendant in each case, plaintiffs appeal. Affirmed.
Messrs. Bonham, Price Poag, for appellants, cite: Special laws: 66 S.C. 221; 99 S.C. 381; 109 S.C. 1; 110 S.C. 517. Tax not uniform: 75 S.C. 62; 106 S.C. 190; 56 S.C. 522; 93 N.E., 304; 183 U.S. 79; 134 U.S. 232; 165 U.S. 150; 170 U.S. 283; 119 S.E., 244.
Messrs. Samuel M. Wolfe, Jno. M. Daniel, Atty. General and Cordie Page, Asst. Atty. General, for respondent, cite: Act in question: Act 1923, p. 21, Sec. 11, Bubsec. e. Act Constitutional: 122 S.C. 481; 61 S.C. 210; 8 L.Ed., 1116; 151 Pac., 398; 40 L.R.A., 1207; 21 S.C. 296; 100 S.C. 478; 108 S.C. 98; 40 S.E., 12; 220 U.S. 609; 61 S.W. 218; 96 A.S.R., 893; 15 Pa. Sup. Ct., 271; Cooley Tax, Secs. 349, 352; 103 S.E., 65; 59 S.C. 426; 67 S.C. 35; 38 S.C. 103; 110 N.W., 241; Gray Lim. Tax Power, Sec. 1424; 56 L.Ed., 350; 217 U.S. 114; 86 S.C. 96; 62 S.C. 524; 74 S.C. 207; 121 S.C. 9; 76 S.C. 28: 5 L.R.A., 559; 143 U.S. 517; 233 U.S. 331; 103 S.C. 10; 113 S.E., 345; 85 S.C. 507; 7 L.Ed., 939; 73 S.C. 195; 122 S.C. 476; 264 U.S. 286.
April 1, 1925. The opinion of the Court was delivered by
"These cases were brought to test the validity of the Act of March 26, 1923, which imposes a tax upon places of amusement. By agreement with the Attorney General, the decision in this case was to be binding upon all places in the state in like situation. The issue raised is a clear challenge to the constitutionality of the act.
"It is maintained in the exceptions that the act is unconstitutional in four particulars: First, that it is a special law where a general law would suffice; second, that the tax is not uniform and equal; third, that it is a taking of property without due process of law as inhibited by the State Constitution; and, fourth, a violation of the due process clause of the United States Constitution."
These exceptions are overruled under the authority of Budd v. State of New York, 145 U.S. 517; 12 S.Ct., 468; 36 L.Ed., 247, and for the further reason that it was clearly the intent of the Legislature, in passing the act in question, that if the proviso was declared by the Court to be unconstitutional that the remainder of the act should remain unaffected. A reading of the act clearly indicates this.
All exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES FRASER and MARION concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN did not participate.