Ex parte Hart

• Decision Date: 14 March 1939
• Docket Number: 14841.
• Citation: 2 S.E.2d 52,190 S.C. 473
• Parties: Ex parte HART et al. Appeal of BOWEN et al., County Attys.
• Court: South Carolina Supreme Court

2 S.E.2d 52

190 S.C. 473

Ex parte HART et al. Appeal of BOWEN et al., County Attys.

No. 14841.

Supreme Court of South Carolina

March 14, 1939

Nicholls & Russell, of Spartanburg, Barron, Barron & Walker of Union, and C. S. Bowen, of Greenville, for appellants.

E M. Blythe, James L. Love, and Benj. A. Bolt, all of Greenville, for respondent.

STABLER Chief Justice.

For a statement of the preliminary facts necessary to an understanding of the questions presented by this appeal reference must be had to the opinion in the case of Ex parte Greenville County, a Municipal Corporation of the State of South Carolina, Respondent, In re ex parte W. E. Bowen and Dakyns B. Stover, County Attorneys, Appellants, S.C., 2 S.E.2d 47, filed along with this opinion. As in the foregoing case, this appeal is likewise being prosecuted by the appellants from the order of Judge Rice declaring null and void the orders of Judge Sease dated June 2 and June 3, 1937. Thirty-six exceptions have been taken to the order appealed from. It will not be necessary to deal with them seriatim. The issues arise upon the demurrer and the answer of the appellants.

It is said that J. Ed Hart, as a citizen and taxpayer of Greenville County, suing for himself and all others similarly situated had no right to institute the proceeding to vacate and set aside the judgment rendered in favor of the appellants allowing and directing the payment of their fees. It is argued that the county of Greenville is the real party in interest, and that if it wished to question the judgment its remedy was an appeal from Judge Sease's order of June 3rd. Our attention is directed to Section 397, 1932 Code, wherein it is provided, among other things, that actions must be prosecuted in the name of the real party in interest. It will be recalled that Greenville County was not a party to the proceedings had before Judge Sease on June 2nd and June 3rd, when its rights were being passed upon, and therefore was in no position to appeal.

The question under discussion appears to be a novel one in this state, but it has been held in quite a number of jurisdictions, and correctly so, in our opinion, that if a county has a cause of action for an injury sustained, which should be enforced for the protection of its citizens or taxpayers, and its governing board unjustifiably refuses to assert such cause of action, any citizen, because of his indirect interest, may sue, in behalf of himself and others similarly situated, the person against whom the cause of action exists, and thereby enforce the rights of the county. In such case it is proper to make the corporation a defendant as trustee for all of its members. 14 Am.Jur., page 237, Sec. 77; Zuelly v. Casper, 160 Ind. 455, 67 N.E. 103, 63 L.R.A. 133; Clark v. George, 118 Kan. 667, 236 P. 643; State ex rel. Buchanan County v. Fulks, 296 Mo. 614, 247 S.W. 129; Gosso v. Riddell, 123 Or. 57, 261 P. 77; Northern Trust Co. v. Snyder, 113 Wis. 516, 89 N.W. 460, 90 Am.St.Rep. 867; Webster v. Douglas County, 102 Wis. 181, 77 N.W. 885, 78 N.W. 451, 72 Am.St.Rep. 870; Land, Log & Lumber Co. v. McIntyre, 100 Wis. 245, 75 N.W. 964, 69 Am. St.Rep. 915.

Generally it should be shown by allegation and proof that the corporate authorities have neglected or refused to proceed, after being requested so to do, or that a request to them to proceed by judicial remedies would be unavailing.

The rationale of the general doctrine under discussion is so well expressed in the case of Estate of Cole, 102 Wis. 1, 78 N.W. 402, 404, 72 Am.St.Rep. 854, that we quote from that case: "The direct injury to be remedied where the taxpayer intervenes and sets the judicial machinery in motion for that purpose, is not personal and direct to himself, but to the corporation. The question is, are the members of the corporation as a whole aggrieved? If so, rather than that justice shall fail, the court will take jurisdiction of the subject of controversy at the instance of a taxpayer. The fact that the threatened injury or the wrong done is to the corporation, and that its governing body or officers, who should move in the matter, neglect or refuse to do so, creates a necessity for some other way to remedy the mischief, and in that situation the circumstance of a person being a taxpayer and interested in the protection of its rights, is a sufficient test of his competency to challenge the threatened wrong, or wrong actually done, in a court of justice. *** There is no other way to successfully and efficiently meet that situation. In such cases, where officers neglect to do their duty, the wrong need not by any means go unredressed, so long as there is a single taxpayer with courage and public spirit enough to set the judicial machinery in motion. He may stand in court in place of the unfaithful public officials. The court, in him, will recognize the interests of the corporation as a whole, and with the evidence produced before it, calling for action by its decree, compel the performance of duty by all within its reach."

The petition in this proceeding contains no allegation that the County Board of Commissioners had been requested to institute the action, but the record shows convincingly that if such a request had been made it would have been unavailing.

Ordinarily we readily concede that the duty of determining when a suit should be brought being vested in the county board, it cannot be controlled or exercised by a taxpayer. The discretionary power is vested in the county board of determining when a suit shall be brought, but that means legal discretion. Where it clearly appears that that power is abused, the governing body places itself outside the protection of the rule stated, and may be compelled to act, or in some instances further remedies may be resorted to. As was said in Land, Log & Lumber Co. v. McIntyre, supra [100 Wis. 245, 75 N.W. 967]: "If a county or other corporation has a plain cause of action for an injury done to it, that should be enforced for the protection of its members, and its governing body refuses to perform its plain duty in the premises, our system of jurisprudence is by no means so weak that justice can thereby be defeated. On the contrary, any member of the corporation, by reason of his indirect interest therein, suing in behalf of himself and all similarly situated, may set judicial proceedings in motion, making the corporation a defendant, as trustee for all of its members, and thereby enforce the rights of the corporation."

It logically follows from what we have said, that the petitioner, Hart, under the peculiar and unusual circumstances of this case, was sufficiently affected with an interest to maintain this proceeding, especially so in view of the fact, as we shall attempt to show, that the order issued by Judge Sease on June 3rd was invalid because of lack of jurisdiction of the county of Greenville, which was not a party to the proceeding in which that order was rendered.

It is necessary only to refer to the case of Ex parte Hart et al., 186 S.C. 125, 195 S.E. 253, to show that the order of June: 2nd is void.

It is likewise our opinion that the order of June 3rd is invalid. The proceedings were wholly ex parte, and the order resulting therefrom undertook to pass upon the interest of Greenville County, when it was not a party and not before the court.

We are...