Gillespie v. Pickens County

• Decision Date: 27 May 1941
• Docket Number: 15267.
• Citation: 14 S.E.2d 900,197 S.C. 217
• Parties: GILLESPIE v. PICKENS COUNTY.
• Court: South Carolina Supreme Court

14 S.E.2d 900

197 S.C. 217

GILLESPIE v. PICKENS COUNTY.

No. 15267.

Supreme Court of South Carolina

May 27, 1941

Appeal from Common Pleas Circuit Court of Pickens County; L. D Lide, Judge.

Action by Jesse Gillespie against Pickens County for tax execution fees, wherein a counterclaim was filed. From the judgment both parties appeal.

The decision of the trial court follows:

Jesse D. Gillespie, the plaintiff herein, is the County Treasurer of Pickens County, and has held that office since July 14 1925. Hence under the general law of the State, Section 2854, Code 1932, he was entitled as such treasurer to the sum of $1 for each tax execution or warrant issued by him, the same to be paid by the defaulting tax-payer. However, there were certain special acts passed relating to Pickens County which are embodied in Section 4728, Code 1932, wherein after stating the salaries of county officers, including the treasurer, it is provided that all fees shall be paid into the treasury of the county; and the execution fees which were due the treasurer under the general law were received by the county and used as a part of its ordinary funds.

This action was commenced on February 2, 1939, by the treasurer to recover his execution fees; and the plaintiff prays judgment against the defendant for $1 for each tax execution issued by him as treasurer and collected from the delinquent taxpayers "as will be shown by the public records of Pickens County." The defendant answered, setting up numerous defenses, including the statutes of limitations, and denying all liability. By agreement of counsel the cause was by order referred to E. P. McDaniel, Esq., Clerk of this Court, as Special Referee, for the purpose only of taking the testimony. Pursuant to this order the testimony was taken and reported and includes an audit showing the amount of the execution fees and the years wherein they were collected.

By agreement of counsel the cause came on to be heard before me in open court in Greenville, on December 2, 1939, and after argument of counsel was taken under advisement.

In addition to the oral arguments very helpful briefs were filed by counsel for the respective parties, and later at my request additional briefs were filed on a certain point.

The entire amount of the execution fees collected and received by the county for the period set forth in the complaint is $13,835; but of this amount the sum of $5,520 was collected more than six years prior to the commencement of this action and hence as to this amount the bar of the six-year statute of limitations is complete. Indeed, it is not controverted that the cause of action for these fees accrued more than six years before the commencement of this action; and the six-year statute of limitations, as contained in Section 388, Code 1932, was clearly controlling, because this is an action upon an obligation or liability, express or implied, and obviously does not come within the provisions of Section 387, the twenty-year statute.

It also appears from the evidence that there is some question about the regularity of the issuance of these particular executions, or some of them, but that we need not consider, since the bar of the statute is sufficient to eliminate these items, which would leave then for consideration the sum of $8,315. But there is another deduction which should also be allowed, to wit, the sum of $630, representing collections on executions for delinquent taxes for the year 1937, and these executions according to the evidence were received by the tax collector on June 13, 1938, subsequently to the act of the General Assembly, approved and effective May 6, 1938, Acts, 1938, No. 909, page 1826, which admittedly is a valid and constitutional act, having been enacted after the approval of the 1935 amendment to the constitution, allowing special laws with reference to the amount and manner of compensation of county officers; and this act provided that fees such as those in question here should be paid into the treasury of Pickens County for credit to its ordinary funds, and that in lieu of the retention of such fees, etc., the officers of the county should be paid such salaries as may be prescribed by the General Assembly and annually appropriated by it for such purpose. Manifestly then the sum of $630 should be deducted, which leaves a net amount of $7,685, actually in dispute herein.

It is, of course, admitted that the special acts relating to Pickens County, embodied in Section 4728, Code 1932, are unconstitutional, null and void, under the provisions of Article III, Section 34, of the Constitution, as it stood prior to the amendment of 1935. See Salley v. McCoy, 182 S.C. 249, 189 S.E. 196, and the numerous cases following this decision. Hence the plaintiff is entitled to recover the sum in question, unless he is barred from doing so by reason of the statute of limitations enacted by the General Assembly, approved May 9, 1938, Acts, 1938, No. 947, page 1893. This act provides that no action against the State of South Carolina or any county therein shall be brought by any past, present or future officer or employee of the State or County for the recovery of any salary, fees, costs, commissions, mileage or other charges or obligations, etc., on account of services rendered, where the cause of action shall accrue after the approval of this act, unless the action be brought within the period of one year from the date of the accrual of the right of action, provided that in all cases where such right of action shall have accrued on or prior to the effective date of this act (May 9, 1938) and is not barred by the statute of limitations in effect prior to said date, the claimant is required within a period of not exceeding six months to bring suit upon such claim and not thereafter. But there is a further proviso to the effect that the provisions of the proviso relating to a cause of action which accrued on or prior to the effective date of the act shall not change or affect the provisions of another act of the General Assembly approved March 17, 1938 (Acts, 1938, No. 760, page 1631). The act of May 9, 1938, contains the usual repealing clause, except that it states that the provisions of this act shall not be construed as repealing any of the provisions of the act approved March 17, 1938.

If the statute of May 9, 1938, is valid and constitutional, the plaintiff's cause of action would be completely barred, because it had accrued prior to May 9, 1938, and no action was brought within six months thereafter, the instant case having been commenced as above stated on February 2, 1939, more than eight months after May 9, 1938. The constitutionality of this act, however, is attacked by counsel for the plaintiff, it being contended by them that the act is in violation of Article III, Section 34, subdivision IX, of the State Constitution, to the effect that where a general law can be made applicable no special law shall be enacted; and that it is also in violation of the equal protection and due process clauses of the State Constitution, (Article I, Section 5) and of the Federal Constitution (the Fourteenth Amendment and Article I, Section 10).

There are several specific grounds stated in support of these constitutional objections, but since I am of opinion that the statute is unconstitutional, in so far as it relates to claims against counties which had accrued on or before May 9, 1938, because it applies only to forty-two counties of the State, this is the only particular ground which will require any extended consideration.

The act of May 9, 1938, definitely excludes from its operation the four largest counties of the State (in population), to wit, Charleston, Greenville, Richland and Spartanburg. For as will be seen by reference to the act of March 17, 1938, this specific statute provided that no action against any county of the State having a population as shown by the United States official census of 1930 in excess of 85,000, or against any county of the State which may be shown by any future such census to have a population in excess of that number, shall be brought by any former, present or future officer, including county auditors and county treasurers, etc., on account of any claim for salary, wages, fees, costs, etc., unless the action shall be begun within one year from the date of the accrual of the right of action; provided, that in all cases where such right of action shall have accrued on or prior to the effective date of the act (March 17, 1938), and the same is not barred under the present statute of limitations, an action may be brought within a period of three months from the effective date of this act but not thereafter. The United States official census for 1930 shows that the following counties had a population of 85,000 or more, to wit, Charleston 101,050, Greenville 117,009, Richland 87,667, and Spartanburg 116,323. Hence by its terms the act of March 17, 1938, relates to these four counties only, with the provision that counties hereafter coming within that population class will automatically be brought under the act.

Hence it is clear beyond a peradventure that the act of May 9, 1938, by its express terms does not relate to the four counties of Charleston, Greenville, Richland and Spartanburg, but applies only to the remaining counties, and also to the State of South Carolina itself as a political unit.

Does then this act violate the provisions of the constitution relating to special acts? Manifestly a statute of limitations is one where a general law can be made applicable, in the very nature of the case. Of course, this does not mean that there must be one statute of limitations for all cases of whatsoever nature or kind, for obviously the Legislature has the...