Foster v. Mallory

• Decision Date: 11 February 1942
• Docket Number: 15372.
• Citation: 18 S.E.2d 740,199 S.C. 144
• Parties: FOSTER v. MALLORY et al.
• Court: South Carolina Supreme Court

18 S.E.2d 740

199 S.C. 144

FOSTER v. MALLORY et al.

No. 15372.

Supreme Court of South Carolina

February 11, 1942

H K. Osborne and Thomas B. Butler, both of Spartanburg, for appellants.

Odom Bostick & Taylor and L. G. Southard, all of Spartanburg for respondent.

E. H HENDERSON, Acting Associate Justice.

The respondent, Dewey D. Foster, was formerly the Judge of Probate for Spartanburg County. Prior to the year 1922, the Probate Judges of that county received the fees and costs provided by law, and paid for clerical help and for certain other expenses for the operation of the office.

In 1922, the General Assembly passed an act, the part of it relating to Spartanburg County now being Section 4770 of the Code, providing a salary for the Probate Judge of that county in lieu of fees of whatever nature or description, and clerical help in the sum of $1,200, to be paid to bona fide clerks; all fees to be collected by the officer and turned over to the county treasurer.

Pursuant to this act, which became effective January 1, 1923, the Legislature in enacting the county supply bill for 1923 included, for the first time, a provision for the payment of a salary to the Probate Judge, and for the payment of clerical help in his office. In each annual supply bill thereafter varying amounts have been appropriated as salary for the Probate Judge and for his clerical assistance.

This action was commenced by the respondent on June 16, 1938, to recover the sum of $18,141.91, representing the difference between the amount of the fees alleged to have been collected by the county during the six years immediately preceding the institution of the suit and the amount of salary paid to the plaintiff as Probate Judge during that period; and it was alleged that the act of the Legislature taking away his fees was invalid as being in conflict with Article 3, Section 34, of the Constitution.

In their amended answer the defendants set up six defenses, but we are here concerned with the second and the sixth defenses only.

We shall take up, now, the second defense.

This defense alleges, among other things, that the defendants are entitled to an offset, against the fees and costs, for clerk hire and general office expenses for plaintiff's own benefit or the benefit of his office; that practically all the matters handled through the office of the plaintiff and embraced within this action were performed by subordinate clerks in the office, whose salary was paid by the county; that the clerk hire and office expenses for the period in question amounts to $12,879.96; that prior to the passage of the salary act of 1922, the clerk hire and office expenses were paid by the Probate Judge; and that the plaintiff received the benefit of such sums as were paid by the county for clerk hire and other office expenses of the Probate Court which the plaintiff would have been required to pay under the fee system and but for the enactment of the salary statute, and that to the extent that it may be determined that plaintiff was relieved of paying clerk hire and office expenses during such period, if he had paid for them personally, defendants are entitled to an offset; and that the duties and work of the Probate Court for Spartanburg County are such that it would have been necessary, if the salary statute and county payment of clerical help and other expenses had not been enacted and provided, for the Probate Judge to have employed assistants and to have expended other sums from his own funds, and that for these reasons the defendants are entitled to such offset as represents the amounts the plaintiff would have been required to pay for the proper operation of the office.

To this defense the plaintiff demurred, on the ground that it appears upon the face of the answer that no facts are alleged giving to the defendants a right of offset, and that consequently no valid defense is stated. The demurrer was heard by his Honor, Judge T. S. Sease, and he passed an order sustaining it.

The point is not contested by the county, that in depriving the respondent of his fees and costs the salary act is unconstitutional, being in conflict with Article 3, Section 34, of the Constitution. Salley v. McCoy, 182 S.C. 249, 189 S.E. 196; Hudson v. Pickens County, 190 S.C. 490, 3 S.E. 2d 603.

Nor is any question made by the respondent as to the county's right of offset with respect to his salary, that being conceded under the cases of Gamble v. Clarendon County, 188 S.C. 250, 198 S.E. 857, and Ridgill v. Clarendon County, 192 S.C. 321, 6 S.E.2d 766.

The real question before us is: Is the county entitled to offset, against respondent's claim for fees and costs, the amounts paid by the county for such clerk hire and office expenses as were actually necessary to the proper operation of the Probate Court, and which the respondent himself would have had to pay but for the passage of the invalid salary act?

In the consideration of the demurrer the facts alleged in the answer are, of course, admitted. The facts of prime importance are that prior to 1922, the Probate Judges for Spartanburg County, under the fee system, themselves paid whatever expense was necessary for the proper operation of the office; that since 1922, practically all the work of the office has been done by clerks, and the compensation of such clerks has been paid by the county; and that it would have been necessary for the Probate Judge himself to have employed help and to have paid for at least some of this expense, if the salary act had not been enacted.

The situation is the same, we think, in so far as it relates to the necessary help, whether the county paid that amount to the Probate Judge and he in turn paid it over to the clerks, or whether the payments were made directly to the clerks. There is no difference in principle between the actual receipt and disbursement of the money by the Probate Judge on the one hand, and the payment on the other by the county to one whom the officer would have been obliged to pay. If the expense was necessary, the Probate Judge received the benefit of the funds so paid.

The compensation of the respondent has been increased to the extent of the amount of clerical and other expenses actually necessary in his office. He will, if his view prevails, receive the fees and costs, and in addition the amount he would necessarily have paid out for clerk hire and expenses.

The invalid salary act should not result in a loss to an officer; at the same time there is no reason why it should result in an increase of his compensation at the expense of the county.

We think that the county should be allowed to show, if it can, that the clerk hire and expenses, or part of it, were necessary, and that the Probate Judge would have had to pay it; and that the county is entitled to offset, against the claim of the plaintiff, whatever amount of the clerk hire and expenses paid for by the county was necessary for the proper operation of the office and which would have been paid for by the plaintiff if the salary act had never been passed.

The allegations of fact in the answer, admitted on the demurrer, that it was necessary that such payments be made, and that the plaintiff would have paid for them but for the salary act, differentiate this case, in our opinion, from other decisions of this Court.

In the Gamble case, above, the opinion written by former Chief Justice Stabler held that the county was not entitled to offset the salary paid to the sheriff of Clarendon County, and, after discussing the matter of salary, said: "What we hold with reference to the payment of salary items, also applies to the items for clerk hire and traveling expenses." [188 S.C. 250, 198 S.E. 866]

On the question of the offset of salary the majority of the Court did not concur, but in the opinion which on this point became the majority opinion of the Court, the right of the county to offset the salary was upheld. This prevailing opinion did not discuss the question of the clerk hire and expenses, but stated:

"I am unable to concur in the opinion by Chief Justice Stabler in this case insofar as it sustains the demurrer to that portion of the second defense which pleads a credit or offset to respondent's claim to fees and costs to the extent of the salary paid him.

*****

"I feel that on the above two grounds, the demurrer to the second defense should be overruled, as far as the salary items therein set forth are attempted to be offset."

It follows that the portion of Chief Justice Stabler's opinion denying the offset of the clerk hire and traveling expense was concurred in by the entire Court. Since the majority of the Court, however, did not adopt the reasoning of Chief Justice Stabler for disallowing the salary offset, it appears that the Court held that, under the facts and circumstances of that case, the offset for clerk hire and expenses should not be allowed.

There is a marked difference in the facts of the instant case. Here the admitted fact is that the clerk hire was necessary, and that Mr. Foster would have had to pay it but for the salary act. No such allegation appears in the Gamble case, and there is no proof whatever on that point.

This same difference in the facts, as presented by the allegation and the proof, exists in the Ridgill case, above.

The...