O'Shields v. Caldwell
| Decision Date | 30 August 1945 |
| Docket Number | 15770. |
| Parties | O'SHIELDS et al. v. CALDWELL et al. |
| Court | South Carolina Supreme Court |
P. D. Barron, J. R. Flynn, and Macbeth Young, all of Union, and Daniel & Russell, of Spartanburg, for appellants.
Fred J. McLure, of Union, and Osborne, Butler & Moore, of Spartanburg, for respondents.
As the title indicates, this action was brought by respondents in behalf of their county of Union, after the formal refusal of the governing board to so proceed, against Caldwell, county treasurer, and the surety upon his official bond. The latter two are appellants to this Court. The bond, in the amount of $40,000, was furnished in connection with the principal's term of office which commenced July 1, 1939 and is conditioned in usual form that the treasurer shall well and truly perform the duties of the office then or thereafter required by law.
In 1939 the General Assembly passed Act No. 120 of that year approved April 13, 1939, 41 St. at Large, p. 173, now section 4830-5 of the Code of 1942, whereby the fees of certain county officers which formerly accrued to them as part of their compensation were made the property of the county and it was provided that the officers should thereafter receive as sole compensation salaries and expenses, annually designated and provided by the supply act for said county for each year, respectively, except that the sheriff should collect for himself the fees and costs for serving, as constable, process issued by the magistrate at Union.
Thereafter this plan of county government for Union was followed by the General Assembly and there were annually designated and appropriated in the succeeding county supply acts salaries in compensation of the county officers, who accepred them respectively, until March, 1943, when there was approved on March 11th of that year Act No. 350, 43 St. at Large, p. 1088, which was entitled 'To Make Appropriations to Reimburse Certain County Officers for the Differences in Their Respective Legal Fees and Salaries and Their Respective Fees and Salaries Because of Legislative Changes Made During the Respective Terms of Office for Which They Had Already Been Duly Elected or Appointed.' The title was, in effect, repeated in section 1 of the Act and appropriations were captioned and purported to be made as follows:
Sections 2 and 3 are as follows:
It is noted that officers were included, to wit, coroner, supervisor and the Union magistrate, who were theretofore compensated only by salaries, except the magistrate's civil fees, and there is no explanation of record why they should have been included, and some of the constitutional questions hereinafter discussed are not relevant to them. Incidentally, the Probate Judge, formerly fee-paid, did not participate.
The decision of Salley v. McCoy, 182 S.C. 249, 189 S.E. 196 (), condemned as unconstitutional special acts of the legislature relating to the compensation of county officers passed prior to the constitutional amendment of 1935 which expressly removed the constitutional objection; and Scott v. Anderson County, 195 S.C. 92, 10 S.E.2d 359, approved the method of change followed by the legislature in this case, that is by the enactment of a statute independent of a county supply act (of insufficient title) whereby the transition of compensation of county officers in whole or in part by fees was made to salary alone.
The complaint contains allegations of the facts which have been summarized above and that warrants were issued by the county supervisor and honored by payment by the defendant treasurer on the day following the approval of the Act of March 11, 1943 (except to the deceased sheriff, which was paid on April 5, 1943, to his representative), before the county board had met and before knowledge of such anticipated action was known among the taxpayers, which (quoting) 'sudden, speedy, surreptitious and immediate action was a part of the intent and purpose of the defendant * * * treasurer * * * to misappropriate to himself personally and to divert to the other beneficiaries of said Act (of 1943) the amounts therein mentioned.' Then the complaint alleges, in effect, that the county and its taxpayers have been damaged in the aggregate amount of such payments as the result of (quoting) 'the negligent, careless, wilful and knowingly committed wrongful, illegal, and unlawful acts' of the treasurer acting in such capacity and by virtue of his office, wherefore judgment is demanded against both defendants for such aggregate amount with interest from the dates of payment, and costs.
The complaint also contains several allegations of unconstitutionality of the Act of 1943, but we think it necessary only to refer to its patent violation of article 3, section 30, which plainly prohibits the granting of extra compensation, fee or allowance to any public officer, agent, servant or contractor after service rendered or contract made. Lyon v. Patterson, 102 S.
C. 525, 87 S.E. 306. As mentioned, there are several other provisions of the fundamental law which were alleged to have been violated by the act, some of which were sustained by the Circuit Court judgment under review, but that mentioned is so obvious that the case need not now be burdened with the unnecessary consideration of them. It was further alleged that it was the statutory duty of the treasurer to safely keep, transfer and disburse the funds of the county for legal and constitutional purposes only, and that he was forbidden to make payment for unconstitutional purposes, section 4819, 1942 Code; and that it was unlawful for him to knowingly pay any extra allowance to any person who is paid by salary, section 3879. Other code provisions are alleged to have been violated, but they need not be separately considered. Paragraph 15 of the complaint is as follows:
And paragraph 19:
'That among other persons to whom payments were directed to be made by said Act of 1943, and to whom the defendant, W. F. Caldwell, as Treasurer of Union County, actually made such payments, was the defendant W. F. Caldwell himself; that without regard, and in addition to the other reasons herein set forth why such payments were unlawful, plaintiffs further allege that the defendant W. F. Caldwell, in his capacity as Treasurer of Union County, had actual knowledge that he personally was not entitled to the sum directed to be paid to him, and which, in fact, he did pay to himself personally; and he further had actual knowledge that such payment to himself was unjustified, unlawful, and without any legal foundation or excuse; but notwithstanding his actual knowledge of all such facts, and of the violations of law therein involved, he deliberately, intentionally, wrongfully, illegally and knowingly paid to himself from the public funds of Union County the sum of $4,687.80.'
Following the latter quotation it is alleged in the complaint that by reason of the treasurer's personal participation in such unlawful payments he knew that the other recipients were not legally entitled to the payments to them but the treasurer (quoting) 'by virtue of his office, deliberately, intentionally, wrongfully, illegally and knowingly paid to each of such persons named in said Act the respective amounts stated therein, all from the public funds of Union County, in violation of law and in breach of the official duties of the said W. F. Caldwell, as Treasurer of Union County.'
Defendants' several attorneys moved before the resident Circuit Judge to strike various allegations of the complaint as irrelevant redundant, immaterial and conclusions. The most important point of the motion was the first, that the allegations undertaking to characterize the actions of the treasurer as wilful, knowing, etc., were subject to it; but, as will hereinafter be developed,...
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