State ex rel. Marshall v. Starling
| Decision Date | 24 March 1880 |
| Docket Number | CASE 837. |
| Parties | THE STATE, EX RELATIONE MARSHALL, v. STARLING. |
| Court | South Carolina Supreme Court |
1. County commissioners cannot be required to give a check unless there are funds in the treasury appropriated for the particular subject to which the claim belongs.
2. Excesses in any specific appropriation, in the county treasury for a fiscal year, are applicable to other county claims for that year; an excess over all claims goes over to the next fiscal year.
3. Funds being in the county treasury for the fiscal year ending October 31st, undrawn, but insufficient to pay audited claims for that fiscal year, and no funds being yet collected for the fiscal year commencing November 1st, upon petition filed in January, a mandamus was granted requiring the county commissioners to draw their warrant for one-third, or the October portion, of a trial justice's salary, which was fixed by law and due for the quarter ending December 31st.
4. A salary fixed by law need not be audited, as the county commissioners have no discretion to allow or reject it; when funds are in their treasury, applicable to its payment, it is their duty to draw a check therefor.
Original application to the Supreme Court, January, 1880.
Application for a writ of mandamus requiring W. D. Starling, N J. Dubard and T. A. Scott, county commissioners of Richland county, to pay the salary of the petitioner.
Mr. F W. Fickling , for relator.
Mr. John R. Abney , for respondents.
This is a petition by J. Q. Marshall, a trial justice in the city of Columbia, for a writ of mandamus to compel the county commissioners of Richland county to draw their check upon the treasury of the county in his favor for $200 for his quarter salary, as trial justice, for the months of October, November and December, 1879, which became due and payable on January 1st, 1880.
The respondents made return, insisting that the rule should be discharged on the grounds-
First . That the relator did not, as he should have done, allege in his petition that there were county funds in the treasury applicable to his claim.
Second . Denying statement of fact as to the alleged promise to issue check for the claim.
Third . Denying that there is any money in the treasury " appropriated for or applicable to the payment of said claim."
Fourth . That out of the taxes for the last fiscal year, the relator had received all his salary except for the month of October, while other creditors of the county had received nothing.
Fifth . That there is no excess from the last fiscal year to come over into this fiscal year.
Sixth . That no taxes have been collected for the present fiscal year.
The return is not traversed, and the facts stated must be assumed to be true.
The relator filed a reply in the nature of a demurrer, making only questions of law.
The county commissioners' act (15 Stat. 989,) provides " that the county commissioners shall not draw any order upon the county treasurer unless he has the funds in the treasury appropriated for the particular object to pay the same, and to enable him to determine whether there is the specific fund upon which to draw, the county commissioners shall indicate on the face of each order the nature of the claim in payment of which it has been given."
And again, Section 23, page 993: " And it shall not be lawful for any county treasurer to pay any claim against the county except upon the checks of the county commissioners, which shall bear upon their face not only the number, amount and name of the party in whose favor they are drawn, but the nature of the claims for which they are drawn, and the fiscal year in which they were contracted or incurred ."
The county commissioners connot be required to give a check unless there are funds in the treasury appropriated for the particular subject to which that claim belongs. The general rule is that the actor must state everything necessary to make out his case, but whether particular funds are in the treasury may not be known to the claimant, is matter of evidence, and the omission of the allegation is not necessarily fatal.
The question is, were there funds in the county treasury January 1st, 1880, applicable to the class of claims to which that of relator belongs? As a fact it is denied, and it can only be determined by applying the law to the statements of the return. The scheme of the act seems to be, that the commissioners, subject to the limit fixed by the legislature shall indicate how much money in the year ought to be raised for the county, and distributed among the different objects as provided by law-subject to the controlling duty of keeping distinct the amount collected and the disbursements of each fiscal year. If in any of the sub-divisions of the funds, other than that for fees, disbursements, & c., there should be more than enough to pay all dues of the class for which it was set...
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