Salley v. McCoy

• Decision Date: 28 December 1937
• Docket Number: 14590.
• Parties: SALLEY v. McCOY et al.
• Court: South Carolina Supreme Court

195 S.E. 132

186 S.C. 1

SALLEY v. McCOY et al.

No. 14590.

Supreme Court of South Carolina

December 28, 1937

Appeal from Common Pleas Circuit Court of Orangeburg County; A. L Gaston, Judge.

Action to recover certain unpaid salary items and for certain tax execution fees by J. R. Salley, individually and as county treasurer of Orangeburg county, against S. J. McCoy and others, members of and constituting the Orangeburg County Highway Commission of Orangeburg county wherein defendants filed counterclaims. From an order of the circuit judge allowing certain proposed defenses and disallowing others including three defenses by way of counterclaim, both parties appeal .

Reversed in part and affirmed in part.

Henry R. Sims, Julian S. Wolfe, and Adam H. Moss, all of Orangeburg, Taylor H. Stukes, of Manning, and C. T. Graydon of Columbia, for appellants.

Zeigler & Brailsford and Lide & Felder, all of Orangeburg, for respondent.

BAKER Justice.

In this suit the treasurer of Orangeburg county is seeking to recover judgment against Orangeburg county for certain unpaid salary items alleged to be due him under section 2700 of the Code, and for certain tax execution fees which he claims under the provisions of section 2854 of the Code.

Although the case has not yet been reached for trial on the merits, this is the second appeal. See Salley v. McCoy et al. 182 S.C. 249, 189 S.E. 196, 215. The first appeal was from an order of the circuit court sustaining a demurrer on the part of the plaintiff treasurer to all but two of nine defenses, including two defenses by way of counterclaim, filed by the defendants.

In the opinion of this court, on the first appeal, the suggestion of the appellants (county governing board) that to sustain the demurrer there dealt with would have the effect of depriving them of a trial of the issues of fact intended to be raised by the pleadings, this court pointed out that there is ample provision in the law for the amendment of an answer, following an appeal to this court from a ruling on the pleadings, "if it should later develop that issues of fact intended to be raised in the defenses that are stricken out of the ruling on the demurrer should be raised in some other form." Italics added.

Following the remittitur to the circuit court, the defendants asked leave to amend their answer, including the counterclaims therein set up, and, under the direction of the circuit judge, submitted a proposed amended answer. The circuit judge made an order allowing certain of the proposed defenses, and disallowing others, including three defenses by way of counterclaim. Both parties have appealed from this order.

For convenience, the defendants, constituting the Orangeburg county highway commission, will hereinafter be referred to as the appellants. The county treasurer, plaintiff below, will be hereinafter referred to as the respondent.

The result of the decision on the first appeal was to leave intact the first defense, in which there were admissions of some of the allegations of the complaint, and denials of others, and also the second defense, which amounts to a plea of payment. In the proposed amended answer, the appellants set up the following additional defenses:

Third defense, that section 2700 of the Code of 1932, upon which the salary claims set forth in the complaint were based, is unconstitutional, and therefore null and void; fourth defense, that section 2854 of the Code, upon which the claim to execution fees set up in the complaint is based, is unconstitutional, and therefore null and void; fifth defense, and by way of counterclaim, that the plaintiff had collected certain tax execution fees, which he is alleged to have unlawfully retained and to have converted, and which should have been paid over to Orangeburg county; sixth defense, and by way of counterclaim, that the plaintiff had paid over to the sheriff of Orangeburg county a certain amount of execution fees collected by the plaintiff, and to which it is alleged the county of Orangeburg was and is entitled, the payment to the sheriff being claimed to be illegal; seventh defense, and by way of counterclaim, that the plaintiff had failed in certain particulars to perform his duties as treasurer of Orangeburg county in relation to delinquent taxes, in consequence of which the county had suffered losses for which damages in the sum of $200,000 is claimed.

The respondent complains of so much of the order of the circuit judge as authorizes the amendment of the answer by the addition of the third and fourth defenses above indicated. The appellants complain of so much of the order as disallows the amendment of the answer by the addition of the fifth, sixth, and seventh defenses by way of counterclaim.

At the outset it is well to define generally the scope of the issues presented in these successive appeals.

As hereinbefore stated, the action was brought by the respondent to recover salary items and tax execution fees, which he alleges are due him under the provisions of sections 2700 and 2854 of the Code.

While these sections are not so designated in the complaint, the respondent's cause of action is so stated as to be unintelligible except as a claim made under those two Code provisions. Undeniably the complaint either states a cause of action under these provisions or its states no cause of action at all; or to express the matter with specific reference to the third and fourth defenses, which the appellants now seek to interpose, sections 2700 and 2854 of the Code are valid enactments fixing the amount of compensation to which the county treasurer is entitled by way of salary and execution fees as set forth in his complaint, or they are invalid statutes, furnishing no foundation upon which a complaint may be based.

Confronted with this complaint, the county was in position to defend on the ground, in the light of the issues then presented, that the complaint sets forth no cause of action, because the alleged statutory foundation upon which it rested was nonexistent, due to the invalidity or the inapplicability of the statutes upon which the plaintiff relied. In the answer interposed by the appellants, however, there is no allegation that the Code provisions in question were unconstitutional. The denial of the plaintiff's claims was general, and as a matter of pleading could be construed to mean only that by reason of the special local laws upon which the county relied to sustain its denials, the respondent was not entitled to recover. On any other theory the county would not have answered the complaint by way of denial, but would have demurred to the same.

Upon the hearing of the demurrer to the appellants' original answer and counterclaims, the issues before the circuit court related primarily to the constitutionality of the various special local laws which undertook to reduce the salary of the treasurer below the amount fixed by section 2700 of the Code, and to deprive the treasurer of the execution fees provided by section 2854 of the Code, but the whole theory of the presentation of this case to the circuit judge involves the validity and applicability of the Code sections in question. In fact it would not be inaccurate to describe as the problem presented to the circuit court the question whether the Code sections in question are controlling as general laws, or whether they were superseded by the local laws upon which the county relied. And the disposition of the case by the circuit judge was a disposition of that question.

Recognizing this, counsel for the county presented in their brief on the first appeal, as one of the "Questions Involved":

"4. Is section 2700, Code of 1932, a general law applicable to the payment of County Treasurer and uniform in its operation?"

And by their exception No. 5, such counsel presented this question, as follows:

"5. The Court erred in holding that section 2700, Code of 1932, is a general law applicable to the payment of County Treasurers; the error being that section 2700, Code of 1932, is a special law."

And in the argument of counsel on the first appeal, the matter of the constitutionality of section 2700 of the Code is specically mentioned. Appellant's counsel, on page 12 of their brief, on that appeal, stated:

"We realize that the constitutionality of section 2700 is not before this Court at this time, and we are not asking that this section be declared unconstitutional. As a matter of fact, in our opinion, subsections 9 and 10 have no application to section 2700, but under the interpretation of the lower Court it follows, as a matter of course, that section 2700 is unconstitutional if the special acts relating to the payment of county officials in Orangeburg County are unconstitutional; and we would like to call the Court's attention to the fact that if this Act is declared unconstitutional the duty will fall on the State of South Carolina and the various counties of the State to institute actions against every county auditor and treasurer for the recovery of all sums paid them under and by virtue of this Act. The Court will readily see the chaotic condition to which this would give rise." And on page 35 of their brief appellants' counsel expressed the same thought more briefly as follows:

"We have demonstrated that section 2700, supra, and the various appropriation Acts for Orangeburg County belong to the same constitutional class, either all are constitutional or all are unconstitutional."

Thus we have the appellants' standing upon the position, fully argued before the lower court in the first instance, that the special local laws are constitutional, and upon the further position presented in this court that those laws cannot be declared unconstitutional without...