Senn v. Spartanburg County

• Citation: 7 S.E.2d 454,192 S.C. 489
• Decision Date: 06 February 1940
• Docket Number: 15009.
• Parties: SENN v. SPARTANBURG COUNTY et al.
• Court: United States State Supreme Court of South Carolina

7 S.E.2d 454

192 S.C. 489

SENN v. SPARTANBURG COUNTY et al.

No. 15009.

Supreme Court of South Carolina

February 6, 1940

Donald Russell and Luther K. Brice, both of Spartanburg, for appellants.

Lyles & Daniel, of Spartanburg, for respondent.

L. D LIDE, Acting Associate Justice.

W. G S. O'Shields was County Auditor of Spartanburg County for several years, and hence under the provisions of Section 2727, Code, 1932, was entitled to a fee of 25 cents for the entry of each deed in his office, this section containing the general law of the State on the subject. Section 4770, Code 1932, however, provided that the salaries therein fixed for the county officers of the County of Spartanburg, including the Auditor, should be in lieu of all fees of whatsoever nature or description collected by them, and that all such fees should be turned over to the County Treasurer. The latter section is a codification of acts adopted in earlier years.

Mr. O'Shields as County Auditor, however, conceiving that he was entitled to the fees in question, notwithstanding Section 4770, did on June 13, 1935, file with the County Board of Spartanburg County his verified claim against the County in the sum of $2314.25, for the entry during the period commencing July 1, 1929, and extending through June 8, 1935, of 9257 deeds at 25 cents each; and in this claim he states that Section 4770 is unconstitutional, but does not give any reason for this conclusion, nor does he refer to the section of the Constitution involved. There does not appear to have been any formal hearing on the claim, but the minutes of the Board show its disapproval thereof, upon the advice of the County Attorney.

Thereafter the claimant by his attorneys gave notice of appeal to the Court of Common Pleas for Spartanburg County from the action of the County Board. This notice of appeal sets out the basis of the claim with all sufficient detail and specifically alleges that Section 4770 is unconstitutional as being special legislation in violation of subdivision VIII of Section 34 of Article III of the State Constitution. The County Board filed a carefully prepared return to the notice of appeal wherein they set out in detail the facts relating to the filing of the claim by the County Auditor and the action taken thereon by the County Board disapproving and disallowing the claim, but they do not assign any reasons for the disallowance of the claim except the recital in the minutes of the Board that the County Attorney did not recommend payment thereof.

We quote the following statement contained in the transcript of record: "The appeal first came on for hearing before Honorable S.W. G. Shipp, Presiding. Circuit Judge, who died without filing any order in the matter. By agreement, it was then presented and argued before Honorable W. C. Cothran, Special Circuit Judge, who filed the order from which this appeal is prosecuted, upon exceptions hereinafter set forth."

Special Judge Cothran handed down his decree dated November 29, 1937, overruling the action of the County Board in disallowing the claim, and adjudging that the claimant was entitled to the payment thereof. Due notice of appeal was given by the County Board of Spartanburg County and Spartanburg County from this decree, and the cause comes before us upon the exceptions set forth in the record. Incidentally, it should be mentioned that during the pendency of the action the claim was assigned by Mr. O'Shields to Annie Myrtle Senn, who is the respondent herein.

This appeal is somewhat unique in this respect: The three questions involved, as stated by counsel for the appellants, all relate to the jurisdiction, or rather alleged lack of jurisdiction, of the County Board of Spartanburg County with reference to the claim in question; and it is, therefore, alleged that the Court of Common Pleas was also without jurisdiction; but it is admitted that none of these questions was made in the Court below. Of course the theory upon which these jurisdictional objections are now made is that they relate to the subject matter, and hence may be raised at any time, because jurisdiction of the subject matter of an action cannot be conferred by consent.

The unconstitutionality of Section 4770, Code, 1932, as being special legislation cannot now be doubted, and hence the County Auditor of Spartanburg County was entitled as a matter of law to payment by that County of the full amount of his claim in the sum of $2314.25, there being no allegation or suggestion of any error in the amount of the claim. The case of Salley v. McCoy, 182 S.C. 249, 189 S.E. 196, had not been decided when the claim was presented, as the opinion therein was not filed until December 9, 1936; but the law was definitely settled by that case and it has since been consistently followed. Indeed, the appeal here does not question the authority of the cited case and the subsequent adjudications of this Court pursuant thereto, but the instant appeal is based solely upon the theory that the claimant adopted the wrong remedy; and in effect that while he is entitled to be paid the Court cannot enforce his rights in this cause for the technical reason that he proceeded erroneously, although this objection was not suggested to the learned Judge who heard the case below.

In the case of Salley v. McCoy, supra, the position was taken that a claim against a County for services must be filed with the County Board or else be barred under the provisions of Section 3873, Code, 1932; but the Court held that the statutes relating to filing claims with the County Board do not apply to claims based on the unconstitutionality of an act of the General Assembly for the reason that administrative officers are bound by such an act until it has been judicially declared unconstitutional, although of course the County Board does act in a quasi-judicial capacity in passing on such claims as are required by law to be submitted to it. State v. Goodwin, 81 S.C. 419, 62 S.E. 1100.

The point again came before the Court in the case of Gamble v. Clarendon County, 188 S.C. 250, 198 S.E. 857, where this Court held that the Circuit Court had jurisdiction of a Sheriff's claim for fees and costs which the County retained under alleged unconstitutional statutes, notwithstanding the claim had not been first presented to the County Board of Commissioners.

In the case at bar the claimant proceeded in accordance with the case of Nance v. Anderson County, 60 S.C. 501, 39 S.E. 5, wherein a claim by a Probate Judge was filed with the County Board of Anderson County, which disallowed the claim but upon an appeal to the Circuit Court the County Board was reversed because the Circuit Court adjudged the act involved to be...