Mason v. Williams
| Decision Date | 25 July 1944 |
| Docket Number | 15666. |
| Parties | MASON v. WILLIAMS et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Spartanburg County; G. Dewey Oxner Judge.
Action by Martha E Mason (C. M. & W. P. Mason, as her administrators substituted), suing in behalf of herself and all other taxpayers of the City of Spartanburg who may come in and contribute to the costs of the action, and for and in behalf of the City of Spartanburg, against I. T. Williams and Fidelity & Deposit Company of Maryland, to recover damages allegedly resulting to city and its taxpayers by reason of alleged failure of city clerk and treasurer to send out required notices and to issue executions to the tax collector and to proceed to collect or see that certain paving assessments were collected until after the abutting property liens therefor had expired. From a judgment for defendants the plaintiffs appeal.
The order of Judge Oxner adopted by Supreme Court is as follows:
Claiming to be a taxpayer of the City of Spartanburg, and to sue for herself, the city, and all its other taxpayers, Mrs. Martha E. Mason, on February 14, 1938, brought this action against I. T. Williams, city treasurer, and Fidelity & Deposit Company of Maryland, surety on his bond, for damages in the amount of the penalty of the bond for its alleged breach by the treasurer's failure to collect certain paving assessments before the abutting property liens therefor expired. While the action was pending, the original plaintiff died, and her administrators were substituted.
The complaint (carrying as exhibits all legislative Acts and city ordinances claimed to govern the making and collection of paving assessments) predicated the treasurer's alleged duty to collect abutting property assessments upon a resolution of the city council of March 21, 1932, entitled "A Resolution Relating to the Collection of Abutting Property Assessment Tax," which, after reciting prevalent delinquency, resolved "that the city treasurer be and he is hereby instructed to notify each delinquent in writing the amount due and unpaid, and that if such account *** is not paid within fifteen days from the date of this notice he shall proceed at once to collect same as provided by law."
The city treasurer denied that it was his duty to collect paving assessments, and plead affirmatively that the delay in levying executions for them resulted from the reliance, in good faith, by him and the city council upon the advice of the city attorney that paving assessment liens continued for ten years after ratification.
The surety company asserted this same defense, and, further, that the bond sued on was issued only after the city had represented that the treasurer was not responsible for failure to collect such taxes and assessments.
Plaintiff moved to strike out these defenses, and prevailed in the Circuit Court. On appeal, the Supreme Court reversed, restoring the stricken defenses, and holding specifically:
Other defenses were upheld, but since I have reached conclusions determinative of the case upon the foregoing, it is unnecessary to further discuss or refer to the others.
Jury trial was waived and the cause referred. It is now before me on defendants' exceptions to the report of the referee, who recommended judgment against them on substantially the same grounds and theory that led the Circuit Court to strike the defenses restored by the Supreme Court.
The exceptions are unnecessarily numerous and argumentative, many of them repeating in variant phraseology assignments of error covered by others. Since those charging error in not finding and holding that the delay in issuing paving assessment executions resulted from reliance on the erroneous advice of the city attorney as to the duration of the lien, and the intention of the city council to indulge the property owners to the limit of the life of the lien as defined by the city attorney's incorrect opinion, must be upheld, I shall not discuss in any detail, or expressly pass upon other exceptions which may also have merit.
A careful reading of the referee's report discloses that he followed plaintiff's counsel into the error of failing to accept and follow the law of the case as clearly defined by the Supreme Court. Our only inquiry must be whether any of the defenses held sufficient by that Court are sustained by the evidence.
However, it may not be amiss to point out that, notwithstanding plaintiff's original contention in pleading and argument that it was the treasurer's duty to collect paving assessments, her counsel in argument before me conceded that there is nothing in the record to show any such duty, acquiescing in the referee's holding to that effect, and contending now only that it was the treasurer's duty to issue executions within thirty days after delinquency.
While the overwhelming weight of the evidence shows that, during Williams' tenure as treasurer, it was never his duty to issue paving executions until expressly so instructed by the city council and that standing instructions had been given to issue no execution until just before the expiration of nine years and thirty days after ratification, it may not be amiss to further point out that the period for which recovery is sought is from July, 1930, to October, 1933; that the assessments involved were ratified in 1927 and 1928; that they were approximately two years delinquent when he came into office; and had there been a duty on the treasurer, prior to the 1930 depression, to issue executions thirty days after delinquency, it was a duty resting not on him, but on his predecessor.
Moreover, since issuing an execution neither creates nor preserves any lien, and since it is conceded, as well as conclusively proved, that it was not the city treasurer's duty to levy, and since the testimony of practically all the members of the city council was to the effect that no levy was to be made, of what avail the issuance of an execution when no levy was to follow? How can we assume damages resulting from failure to issue an execution which was not to be levied? How can we reason that the mere issuance of an execution, with no following levy, would induce some property owners to pay assessments which would otherwise not be paid? To so hold would be to permit damages highly speculative to be recovered on grounds wholly conjectural.
Ignoring the holding of the Supreme Court that parol testimony was admissible to explain the intention of the city council in the resolution of March 21, 1932, the referee undertook to interpret that resolution without the aid of the very clear and positive testimony showing that it was not intended to authorize the treasurer to issue executions without further instructions, and held that the members of the city council "had no right then, or now, to ask the courts to hold that when these resolutions were adopted, they were merely trying to pull a bluff."
The testimony, almost if not quite undisputed, by its whole trend and greater weight, corroborated by attendant circumstances, and the universal tendency to delay collection of debts by forced sales of property during the appalling depression then prevailing, compels my conclusion that it was the undoubted and unanimous intention of the city council that no paving assessment executions should be levied, or sales made thereunder; and that the resolution of March 21, 1932, was not intended to authorize the treasurer to issue executions.
Mr. Ben Hill Brown was mayor of Spartanburg from 1925 to 1937 inclusive, and his testimony is clear, strong and convincing, and not contradicted in any way. He was head of the financial department. In 1931, he employed Mr. Rothrock, not as special tax collector, but expressly to do what he could toward collecting paving assessments. In addition to calling on the debtors, it was Rothrock's job to get up information on delinquent assessments and apply to the treasurer for an execution when the liens were about to expire, assuming the lien to endure for nine years and thirty days from ratification of assessment. Both Rothrock and the former mayor so testified; and, further, that he was working directly under the mayor, who went over the delinquent assessments with him almost daily. There is no testimony that he applied for any execution that Williams didn't issue. On the contrary, it is clear that both understood with certainty that no executions were to be issued until the nine-year-and thirty-day period were about to expire. The former mayor testified that both were under instructions not to issue executions until then; they were...
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