Mason v. Williams

• Decision Date: 28 May 1940
• Docket Number: 15091.
• Citation: 9 S.E.2d 537,194 S.C. 290
• Parties: MASON v. WILLIAMS et al.
• Court: South Carolina Supreme Court

9 S.E.2d 537

194 S.C. 290

MASON v. WILLIAMS et al.

No. 15091.

Supreme Court of South Carolina

May 28, 1940

Donald Russell and C. E. Daniel, both of Spartanburg, for appellants.

DePass & DePass, of Spartanburg, for respondent.

BAKER Justice.

This is a reargued case. The opinions heretofore filed are withdrawn from the files of the Court.

Action by Mrs. Martha E. Mason, suing in behalf of herself and all other taxpayers of the City of Spartanburg who may come in and contribute to the costs thereof, for and in behalf of the said City, against I. T. Williams, former City Clerk and Treasurer of the City of Spartanburg, and Fidelity & Deposit Company of Maryland, surety of I. T Williams as Clerk and Treasurer of said City.

The complaint alleges that from July 7, 1930, until October 20 1933, I. T. Williams was the duly elected Clerk and Treasurer of the City of Spartanburg, and served in this capacity for such time; that for an annual premium of $200 paid by the City, Fidelity & Deposit Company of Maryland executed and delivered to the City its surety bond in the sum of $20,000 conditioned that I. T. Williams "shall well and truly perform the duties of said office, as now or hereafter required by law, during the whole period he may continue in said office", and that this bond was in full force and effect throughout that time; that "the City of Spartanburg in collecting paving assessments was acting under the Acts of the South Carolina Legislature of February 17 1911, as amended 1912 (Exhibit 'C'), February 14, 1914 (Exhibit 'D'), and the Act of April 6, 1931 (Exhibit 'E'), and the general paving assessment ordinance of March 24, 1913, as amended 1926 (Exhibit 'F'); that said paving assessment statutes and ordinances provided that paving assessments must be collected in the same manner as is the payment of city taxes; that city taxes in the City of Spartanburg are collected to the same extent and in the same manner and under the same general statutory laws as state and county taxes, as provided by the Act of the Legislature of March 19, 1924 (Exhibit 'G'), and Sections 7437, 2882 and 7470 of the 1932 Code:" that it was the duty of I. T. Williams under the statutes of the State and the ordinance of the City of Spartanburg, "to issue executions immediately upon paving assessments becoming delinquent or within sixty days thereafter, to the chief of police or other designated official, and/or to see that said tax executions were collected"; "that the surety company knew or should have known when it executed the bond that it was the duty of the said I. T. Williams to issue executions for delinquent paving assessments and/or to see that said executions were collected according to the laws of South Carolina". Paragraphs 11, 12 and 13 of the complaint are as follows:

"11. That on March 21, 1932, the City Council of the City of Spartanburg passed a formal resolution or ordinance (Exhibit "I") requiring I. T. Williams, City Clerk and Treasurer, to notify the owners of property of delinquent paving assessments and within fifteen days thereafter to proceed at once to collect same as provided by law.

"12. That thereafter plaintiff alleges upon information and belief that the said I. T. Williams, City Clerk and Treasurer, did fail and neglect to carry out the provisions of said resolution, or ordinance and the statutes of the State of South Carolina, in that:

"(1) He failed to send out the required notices in respect to the paving assessments hereinafter set out.

"(2) He neglected, failed and refused to issue executions to the tax collector to collect the paving assessments hereinafter set out, as required by law.

"(3) He failed to proceed at once to collect, or to see that the paving assessments hereinafter set out were collected as provided by law.

"13. That as a result of said negligence, carelessness, nonfeasance and misfeasance of the said I. T. Williams, City Clerk and Treasurer, in failing to enforce or to carry out the provisions of the aforesaid ordinances and the statutory laws of South Carolina as above set out, the lien of the City of Spartanburg for the following paving assessments, duly assessed, expired and the City of Spartanburg has lost the amounts of said paving assessments, totalling $28,854.66."

The complaint continues: that by virtue and authority of the Acts of the General Assembly of April 6, 1931, 37 St. at Large, p. 1007, and February 14, 1914, 28 St. at Large, p. 586, and an ordinance of the City of Spartanburg of March 24, 1913, the said City extended its credit to the property owners, and borrowed under its name for defraying the costs of said paving, and assumed and guaranteed the payment of said paving assessments out of the general funds of the City; and that the loss of said paving assessments, as hereinabove alleged, subjects the respondent and all citizens owning property in the City of Spartanburg, to increased taxation; that as a result of the loss, the appellants, respectively as principal and surety, are liable and have become indebted to the City of Spartanburg in the sum of the bond, $20,000; and that the City Council of the City of Spartanburg has refused to enforce or to collect the said bond.

Attached to the complaint were various Exhibits, Exhibit "A" being a copy of letter from the City Attorney to the Mayor, of date August 26, 1930, approving a form of bond to be given by City employees, and the form thereof; Exhibit "B", a copy of minutes of a Council meeting (December 17, 1930) approving form of bond which had been approved by the City Attorney; Exhibits "C", "D" and "E", copies of State Statutes; Exhibit "F", copy of ordinance of the City of Spartanburg, of date March 24, 1913; Exhibit "G", a State Statute; Exhibit "H", an ordinance of the City of Spartanburg of date August 20, 1924, and Exhibit "I", copy of a resolution of the Council of the City of Spartanburg, dated March 21, 1932. (Notation: "While an exhibit to a complaint may not be used to supply a material allegation or cure a fatal defect in the complaint, it may be resorted to to make the allegations of the complaint definite and certain." Matthews v. Monts, 61 S.C. 385, at page 388, 39 S.E. 575, at page 576, quoted with approval in National L. & E. Bank v. Argo Development Co. et al., 141 S.C. 72, 80, 139 S.E. 183, 186.)

The answer of I. T. Williams sets up a general denial, admitting, however, several paragraphs of formal or undisputed matter.

He admitted so much of paragraph 6 of the complaint as alleged the execution and form of the bond, "but alleges in that connection that said bond was executed upon an application made to the said surety by the City of Spartanburg in which the said City of Spartanburg duly represented unto the said surety that this defendant was in no way responsible or liable for failure to collect past-due taxes, paving assessments, license fees, etc., and that such representation was in conformity with the duties attaching to the office of City Clerk and Treasurer of the said City of Spartanburg."

Paragraph 5 of his answer is as follows: "5. That he admits so much of paragraph eleven (11) of the complaint herein as alleges that on March 21st, 1934, the City Council of the City of Spartanburg passed a resolution or ordinance, but denies that said resolution or ordinance is correctly set forth in said paragraph, and prays reference to said resolution or ordinance."

He further answered the complaint and by way of affirmative defense, alleged: "That after due inquiry made, the City of Spartanburg was advised on two occasions in the form of written opinions rendered by its city attorney, who, under the statutory laws of this State, is made the legal advisor of said City and all its officials on all legal matters that paving assessments against property located in the City of Spartanburg continued as valid liens upon the property involved in and covered by said assessments for a period of ten years from the date that such assessments were ratified; that the said City and its employees were entitled to reply upon said opinions of the regularly elected and acting City attorney and are not liable or responsible for any error in said opinion or for any loss occasioned by reason of any error therein; that the said City and all its employees, including this defendant, so this defendant is informed and believes, relied in good faith upon the aforesaid legal opinions duly rendered by the City attorney, and that such advice of counsel given upon a strictly legal matter received and relied on in good faith is plead as a complete bar to any right of action herein."

Fidelity & Deposit Company answered similarly to I. T. Williams and in paragraph 4, after admitting the execution of the bond, but denying that said bond was executed pursuant to the "statutory laws of South Carolina", continued: "and in that connection it alleges that the bond so executed by it as surety on behalf of I. T. Williams, as City Clerk and Treasurer of Spartanburg, was executed in reliance upon and pursuant to a written application and the representations incorporated therein as made to it by the City of Spartanburg through the Mayor of said City, acting under due authority of the City Council of said City, and that among the representations included in said application, without which this defendant would not have executed said bond, was the representation that the principal on said bond was not responsible for delay or failure in the collection of city taxes, paving assessments, license fees, etc., and that said representation, constituting the inducement for the execution of said bond by this defendant and without which this defendant would not have executed said bond, constitutes a part of said bond and must be...