The opinion of the court was delivered by: Legge, Justice.
Plaintiff, a property owner and taxpayer of the City of Orangeburg, brought an action on March 28, 1952, against twenty-four (24) other property owners of said city to collect from them certain taxes, together with interest and penalties, which he alleged they owed the said city. Joined as codefendants were the city and certain of its officials.
On April 5, 1952, the City of Orangeburg and the official defendants served notice of motion to strike certain allegations of the complaint, and on the same date all defendants demurred upon the ground, among others, that the complaint showed misjoinder of causes of action. The motion and demurrers came on to be heard before the Honorable J. Henry Johnson, Presiding Judge, on or about November 24, 1952, and at the time of the hearing the defendants served notice of amendment of the demurrer by adding, as additional ground, that the complaint did not state facts sufficient to constitute a cause of action, for the reason that it appeared on its face that plaintiff's right of action, if any, was by way of mandamus alone. Judge Johnson, by order dated November 24, 1952, granted the motion to strike, sustained the demurrer for misjoinder, and ordered that the action be divided into separate actions pursuant to Section 493 of the 1942 Code, Code 1952, Section 10-644, but did not require the plaintiff to serve amended pleadings. In this order he held the other grounds of demurrer to be without merit, and overruled them; and the parties to this appeal are in disagreement as to whether or not he intended thereby to pass upon the additional ground above mentioned. In his order of June 25, 1955, settling the case for appeal in that regard, Judge Johnson states that his recollection is that the demurrers ruled upon by him were those served on April 5, 1952, and that he has no recollection of having considered or ruled upon the additional ground of demurrer filed on November 24, 1952. His statement is conclusive of the matter. State v. Sessions, 225 S.C. 177, 81 S.E.2d 287; Brown v. Hill, 228 S.C. 34, 88 S.E.2d 838.
Following Judge Johnson's order, all of the defendants answered, pleading general or qualified denials and estoppel. By consent order in each case, all of the actions were referred to James F. Dreher, Esq., Special Referee, to hear and determine all issues of law and fact. At the first reference, on December 10, 1953, the parties stipulated, among other things, that the decision in the case against the City of Orangeburg and W.M. Ayers would be determinative of all the cases involving property-owner defendants stipulated or proven to be "manufactories" within the purview of Article VIII, Section 8, of the Constitution of 1895, and that the decision in the case against the City of Orangeburg and L.E. Miller would be determinative of all of the remaining cases. At the next reference, on January 28, 1954, demurrers to the several complaints were interposed upon the same ground that had been presented as the "additional ground" of demurrer to the complaint as it stood before Judge Johnson on November 24, 1952, to wit: that the complaint did not state facts sufficient to constitute a cause of action, for the reason that it appeared on its face that the plaintiff's right of action, if any, was by way of mandamus alone.
The Special Referee made no express ruling on the demurrers. Holding that the tax exemption ordinances in question were invalid because admittedly no election for the purpose of ratifying them had been held as required by Article VIII, Section 8, and expressing doubt that these actions were maintainable by a private individual, he found that taxes were due to the City of Orangeburg by each of the property-owner defendants in certain amounts, and recommended that the court issue an order in each case declaring the ordinances unconstitutional, directing the City of Orangeburg to collect the taxes so found to be due, and requiring the city to hold the funds so collected subject to the payment of the costs of the actions, including a proper fee for plaintiff's counsel, and holding the causes open for ascertainment of the proper amount of such fee and for such further administrative orders as might be necessary.
Upon the exceptions to the Special Referee's report the matter was heard before the Honorable T.B. Greneker, Presiding Judge, from whose decree of May 15, 1954, the plaintiff and the defendants Ayers, Miller and the City of Orangeburg now appeal. We quote from the decree:
"I have carefully gone over the numerous exceptions made by the plaintiff and find that they are without merit; therefore, I am overruling all of them. However, there are exceptions made by the defendant, City of Orangeburg, and some of the defendants, that have given me a great deal of concern. Generally, these exceptions are to the effect that the Court is without authority to grant the relief demanded in the complaint.
It is contended by the plaintiff that the exceptions made by the defendant, that is, to the effect that the Court is without authority, have been decided by Judge Johnson in the demurrer previously heard and that the issue is res adjudicata. It is contended by certain defendants that the demurrer in this respect was never passed on and it was the intention of Judge Johnson to leave the question open. I do not believe that it is necessary for me to decide this contention, for the reason that if it should appear that the action is improper, then it is the duty of this Court to so find.
"The plaintiff, as an individual, based his suit on the proposition that the ordinances of the City of Orangeburg of February 14, 1947, and November 22, 1949, purporting to exempt certain property owner defendants from City taxes under the conditions heretofore expressed, were unconstitutional and without authority. The suit not only prays for the Court to find the ordinances unconstitutional, but asks judgment against the defendant delinquent taxpayers in favor of the plaintiff for the benefit of the City of Orangeburg, and for the preservation of the City's tax liens, and asked for an appointment of a receiver to foreclose the City tax liens.
"I fully agree with the Special Referee that these ordinances are unconstitutional and are null and void. However, the action is brought as an equitable proceeding which, in my mind, is improper in the light of Section 65-2701 of the 1952 Code of Laws of South Carolina, to wit:
"`All taxes, assessments and penalties legally assessed shall be considered and held as a debt payable to the State by the person against whom they shall be charged and such taxes, assessments and penalties shall be a first lien in all cases whatsoever upon the property taxed, the lien to attach at the beginning of the fiscal year during which the tax is levied. Such taxes shall be first paid out of the assets of any estate of deceased persons or held in trust as assignee or trustee or the proceeds of any property held on execution or attachment. The county treasurer may enforce such lien by execution against such property or, if it cannot be levied on, he may proceed by action at law against the person holding such property.'
"Therefore, it would appear that this section eliminates the granting unto the plaintiff of equitable relief, for in my mind, a tax lien cannot be foreclosed by action unless the legislature has provided for such a remedy and I know of no ...