State v. Goodwin

• Decision Date: 16 November 1908
• Citation: 62 S.E. 1100,81 S.C. 419
• Parties: STATE ex rel. PEOPLE'S BANK OF GREENVILLE v. GOODWIN, County Sup'r, et al.
• Court: South Carolina Supreme Court

62 S.E. 1100

81 S.C. 419

STATE ex rel. PEOPLE'S BANK OF GREENVILLE v. GOODWIN, County Sup'r, et al.

Supreme Court of South Carolina

November 16, 1908

Petition for mandamus by the state, on relation of the People's Bank of Greenville, against J. P. Goodwin County Supervisor, and others. Petition granted in part, and denied in part.

See also, 59 S.E. 35, 361.

J. A McCullough, for petitioner.

Oscar Hodges and H. J. Haynsworth, for respondents.

WOODS J.

In this petition for mandamus, the People's Bank of Greenville alleges it purchased for valuable consideration and without notice of any defects, if any exist, a number of claims, listed in the petition, against the county of Greenville, which had been audited and approved by the county board of commissioners. The petition further alleges: "That although the county had and now has funds applicable to the payment of the said claims, J. W. Walker, county supervisor, and being the predecessor of the present incumbent and the old board of county commissioners, refused to take any steps towards paying the said claims, but denied the validity thereof, and the present respondents, after demand made upon them, refuse to take any steps towards the payment of the said claims, and J. P. Goodwin, county supervisor, refuses, after demand made upon him, to draw his order or warrant upon the county treasurer upon the funds in his possession applicable to the said claims or any of them, and the respondents, after demand upon them, have failed and refused to do the acts required of them by law, looking towards the payment of the said claims or any of them, and they deny the validity of the said claims, or that the county, if liable on account thereof, and the county commissioners of Greenville county refuse to levy a tax to pay the said claims or any part thereof, as they are required by law to do, and they further refuse to include the said claims or any part of them, in the budget of expenses incurred for ordinary county expenses and report the same to the Comptroller General of the state, by him to be submitted to the General Assembly, in order to provide the necessary taxation for county purposes, and they have attempted to repudiate the said claim and have refused, and still refuse, to take any action whatsoever, looking towards the recognition and payment thereof." The prayer is: "That J. P. Goodwin, county supervisor, be required to draw his order or warrant upon the county treasurer for such funds as may be in his hands, applicable to the said claims or any of them. (2) That the board of county supervisors of the said county be required to levy a tax in payment of the said claims. (3) That the said board of county commissioners be required to include in the budget, or estimate of the amount of money necessary to pay the expenses incurred by the said board and for ordinary county expenses, the claims aforesaid, and report the same to the Comptroller General of the state, to be by him submitted to the General Assembly in order that their payment may be provided for. (4) That the respondents and each of them be required to do any and all acts required of them by law looking towards the recognition and payment of the said claims. (5) For such other and further relief as petitioner may be entitled to."

The return shows there are no funds in the hands of the county treasurer applicable to the claims set out in the petition, which are for past indebtedness, and section 609 of the Civil Code of 1902 prohibits the respondents, as public officers, from applying the funds arising from the taxes for the current year to the payment of indebtedness contracted in any previous fiscal year. Section 809 of Civil Code forbids the supervisor to draw checks unless the county treasurer "has reported funds in the treasury to pay the same," and it forbids the county treasurer to pay checks drawn in violation of its provisions. There is therefore no ground to ask for mandamus to require the issuing and payment of a check for the amount of petitioner's claims. By section 5, art. 10 of the Constitution, the General Assembly was authorized to vest in the municipal authorities of a county the power to lay taxes for corporate purposes, but the General Assembly has not seen fit to confer the power on the county board of commissioners, except a limited power to lay a special tax of one mill for roads. 23 St. at Large, p. 1012. Therefore this court cannot issue a mandamus to require that board to do an act not within its official duty or power. In Supervisors v. U. S., 18 Wall. 77, 21 L.Ed. 771, the court says: "It is very plain that a mandamus will not be awarded to compel county officers of a state to do any act which they are not authorized to do by the laws of the state from which they derive their powers. Such officers are the creatures of the statute law, brought into existence for public purposes, and having no authority beyond that conferred on them by the author of their being. And it may be observed that the office of a writ of mandamus is not to create duties, but to compel the discharge of those already existing. A relator must always have a clear right to the performance of a duty resting on the defendant before the writ can be invoked. Is it then the duty of the board of supervisors of a county in the state of Iowa to levy a special tax, in addition to a county tax, of four mills upon the dollar, to satisfy a judgment recovered against the county for its ordinary indebtedness? The question can be answered only by reference to the statutes of the state." U.S. v. Clark, 96 U.S. 37, 24 L.Ed. 696; U.S. v. County Court of Macon County, 99 U.S. 582, 25 L.Ed. 331. It is true the principle thus stated in Ralls v. U. S., 105 U.S. 733, 26 L.Ed. 1220, has been generally recognized and followed: "It must be considered as settled in this court that when authority is granted by the legislative branch of the government to a municipality or a subdivision of a state, to contract an extraordinary debt by the issue of negotiable securities, the power to levy taxes sufficient to meet, at maturity, the obligation to be incurred, is conclusively implied, unless the law which confers the authority, or some general law in force at the time, clearly manifests a contrary legislative intention. The power to tax is necessarily an ingredient of such a power to contract, as ordinarily, political bodies can only meet their pecuniary obligations through the instrumentality of taxation." U.S. v. Clark Co., supra; Quincy v. Jackson, 113 U.S. 337, 28 L.Ed. 1003; Scotland Co. v. Hill, 140 U.S. 44, 11 S.Ct. 697, 35 L.Ed. 353. But this principle has no application here, because the claims here are not extraordinary debts, but ordinary county claims for current expenses of the class for which the General Assembly undertakes to provide by a direct legislative levy. City of Cleveland v. U. S., 111 F. 341, 49 C. C. A. 383. Besides, it will be found in all the cases above cited in which the power and duty to levy a tax to pay a debt has been implied from the authority to make the debt, the officers to whom such power and duty have been attributed were authorized by law to levy taxes, for the general purposes of the municipality. For the courts to undertake to create the machinery of taxation would be to usurp a legislative function. This court therefore has no power to issue a mandamus to require the levy of a special tax to pay the petitioner's claims.

But the petitioner alleges the claims now in controversy against the county having been approved by the county board of commissioners, the court should issue its writ of mandamus requiring the board to include the claims in its estimate to be submitted under section 799, Civ. Code 1902, which reads as follows: "The county board of commissioners shall prepare an estimate of the amount of money necessary to pay the expenses incurred by said boards and for ordinary county expenses, and report the same to the Comptroller General of the state, on or before the 5th day of January of each year, to be by him submitted to the General Assembly, in order to provide the necessary taxation for county purposes." This section was clearly intended to embrace past indebtedness. The purpose of the estimate is to enable the General Assembly "to provide the necessary taxation for county purposes," and taxation is as essential for the payment of past indebtedness as for payment of current expenses. But it is not necessary to resort to the spirit of the act. By its express language, the section require "an estimate of the money necessary to pay the expenses incurred by said boards, and for ordinary county expenses." The expenses already incurred by the board clearly embrace all claims legally approved by the board up to the date of the estimate. Ordinary county expenses are those to be incurred for the current fiscal year.

The respondents, however, allege these claims should not be included in the estimate required by the statute: (1) Because a number of the claims were fraudulent, and the rest, for other reasons affecting the merits, were not valid against the county; (2) because the claims exceeded the appropriation and the tax levied for the year in which they are alleged to have been incurred; and (3) because they were approved by preceding county boards of commissioners without being itemized and verified. As to the merits of the claims, it is well settled by a number of decisions of this court that the action of the county board of commissioners in approving or disallowing a claim against the county, presented in such form as to give the board jurisdiction, is an adjudication. Richland v. Miller, 16 S.C. 236; State v Kirby, 17 S.C. 565; Jennings v. Abbeville, 24 S.C. 543; State v. Appleby, 25...