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COLONIAL LIFE & ACC. INS. CO. v. S.C. TAX COMM.

May 20, 1958

COLONIAL LIFE & ACCIDENT INSURANCE CO., RESPONDENT,
v.
SOUTH CAROLINA TAX COMMISSION, APPELLANT.



The opinion of the court was delivered by: Legge, Justice.


   May 20, 1958.
As Amended June 15, 1958.

Appellant assessed against respondent, a domestic corporation engaged in the business of life and accident insurance, additional license taxes for the years 1950-1953, inclusive, in respect of dividends on shares and interest on deposits owned by it in building and loan associations located in South Carolina, Alabama, Georgia, North Carolina and Tennessee, and also in respect of interest received on bonds of the cities of Valdosta, Georgia and Tuscaloosa, Alabama, owned by it. Respondent paid under protest the taxes so assessed, plus interest, and brought this action pursuant to Section 65-2662 of the 1952 Code to recover the amount so paid.

In the court below, respondent challenged the assessments upon the following grounds:

1. That, properly construed, Section 97 of Act No. 1053 of 1950 (Act June 3, 1950, 46 Stat. at L. 2656), under which the assessment for the year 1950 was levied, and Section 96 of Article I of Act No. 379 of 1951 (Act April 19, 1951, 47 Stat. at L. 656), under which the assessments for the years 1951, 1952 and 1953 were levied, do not apply to and make taxable: (a) income from shares or deposits in building and loan associations either within or without the State of South Carolina, or (b) interest on bonds of municipalities without the said State.

2. That, as construed by appellant, the sections of the 1950 and 1951 Acts before mentioned are arbitrary, discriminatory, and not based upon a reasonable classification for tax purposes, and are therefore, as to respondent and others similarly situated, violative of the due process and equal protection clauses of the State and Federal Constitutions.

3. That Section 96 of Article I of the 1951 Act contravenes Article III, Section 17 of the Constitution of South Carolina, in that its subject is not expressed in the title of that Act.

The trial court sustained respondent's position under the first of these grounds, rejected its contentions under the other two, and decreed the relief prayed for; and from that decree the Tax Commission has appealed.

In due time after service upon it of appellant's proposed case for appeal, respondent served upon appellant proposed amendments thereto, among them the addition, as "Additional Sustaining Grounds":

1. That the trial court should have held the statutes in question, as construed by appellant, violative of the due process and equal protection clauses of the State (Art. 1, § 5) and Federal (Amend. 14) Constitutions; and

2. That the trial court should have held that Section 96 of Article I of Act No. 379 of 1951 was in contravention of Article III, Section 17 of the Constitution of South Carolina.

The proposed amendments having been disallowed by appellant, the matter came before the trial judge for settlement of the case for appeal. By his order of October 8, 1957, he excluded from the case for appeal these "Additional Sustaining Grounds", stating as his reason therefor: "I have carefully considered the arguments of the parties as covered in their briefs and I am of the opinion that the matter attempted to be raised by the Additional Sustaining Grounds is an attempt by plaintiff-respondent to raise questions on appeal which were presented in the Court below and specifically ruled upon adverse to the plaintiff-respondent. No objection was made to these rulings by plaintiff-respondent; no appeal taken therefrom, and time therefor has long since expired."

On October 14, 1957, respondent served upon appellant notice of intention to appeal from the order settling the case, and "that such appeal will be based upon appropriate portions of the record to be embodied in an Appendix to the Brief of Respondent".

On March 18, 1958, respondent served upon appellant notice that upon the opening of this court on the day when the appeal herein would be argued it would move this court for leave to file "for the consideration of the court, an Appendix to the case for Appeal as settled, to be annexed to its brief", the "Additional Sustaining Grounds" before mentioned, the trial judge's order settling the case for appeal, and respondent's exceptions to that order. The notice stated that "the grounds of such motion are that the contents of such appendix could not, under the order of the Presiding Judge dated October 8, 1957 settling the case for appeal, be included in the Transcript of Record, and that the motion may be requisite under Supreme Court Rule 8, Section 7."

Respondent's brief here is followed by an appendix, stated to have been inserted under authority of Rule 4, Section 7 of this ...


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