Opinion
14982
December 13, 1939.
Before LIDE, J., McCormick, February, 1939. Affirmed.
Action by Mrs. Ruth P. Duncan, as administratrix of the estate of T.J. Price, against McCormick County, to recover amount of fees to which decedent in his life time was allegedly entitled as treasurer of the county but of which he had been deprived. Judgment for plaintiff and defendant appeals.
The order of Judge Lide, directed to be reported, follows:
T.J. Price, late of McCormick County, died intestate on July 20, 1937, and his daughter, Mrs. Ruth P. Duncan, is the duly appointed and qualified administratrix of his estate. He was the duly elected and qualified treasurer of McCormick County from the 1st day of July, 1931, and prior thereto up to July 20, 1937, the date of his death. This action was brought by his administratrix against McCormick County, and the complaint alleges that under the general law of the State now embodied in Section 2854 of the 1932 Code, he was entitled to the sum of one dollar for each execution issued by him as treasurer and paid by the defaulting taxpayer, but that these fees were received and retained by the county and used by it as a part of its general funds, and the administratrix seeks to recover the same, alleging that her intestate has been unconstitutionally deprived thereof. It is further alleged in the complaint that the exact number of these executions and the amount received therefor are not known to the plaintiff, but will appear by the records in the delinquent tax collector's office for the county and the county treasurer's records.
In due time the defendant answered the complaint, but the plaintiff demurs thereto for insufficiency of allegations to constitute a defense. This demurrer was argued before me at chambers in Columbia on February 14, 1939, and taken under advisement.
There is no doubt whatever that under the law as it now stands, and as it was during the entire period in question, every county treasurer is required to issue an execution in duplicate against each defaulting taxpayer, and for every such warrant issued the treasurer is entitled to have from such defaulter the sum of one dollar besides mileage. Sections 2853, 2854, Code, 1932. However, by Acts adopted in 1931, embodied in Sections 2878 and 4642, Code, 1932, it was provided that the fees allowed the treasurer of McCormick County should when collected be paid into the treasury of the county and were to be used for ordinary county purposes. In 1932, these special Acts relating to McCormick County were amended, Act Feb. 17, 1932, 37 St. at Large, p. 1136, but no substantial change was made, and all fees, costs, mileage and penalties when collected were required to be turned into the county treasury and the treasurer was required to keep the same as a separate fund, less the payment of advertising costs, payable upon a warrant of the county board. It is quite clear from the amended Act, as well as the original Acts, that the execution fees were intended to constitute a part of the funds of the county for the payment of its ordinary obligations.
It will no doubt now be conceded that these special Acts relating to McCormick County enacted prior to the adopting of the constitutional amendment approved in 1935 are unconstitutional under the authority of Salley v. McCoy, 182 S.C. 249, 189 S.E., 196, and the numerous cases since decided. Hence there can likewise be no doubt that T.J. Price, as county treasurer of McCormick County, was the owner of, and entitled to, the execution fee of one dollar on each execution issued by him and paid by defaulting taxpayers. The defendant, McCormick County, however, in its answer sets up the defense or defenses of waiver and estoppel, alleging that these fees were actually delivered and paid to the county treasurer himself, and that if used as general funds of the county they were paid out and disbursed by the county treasurer himself in his official capacity, and that they are not now in the hands of the defendant, and that the plaintiff cannot maintain an action to recover the same. The position of the defendant is very well stated in the interesting brief filed in its behalf as follows: "The defendant simply says that full compensation was paid to plaintiff's intestate: that the fees of his office were turned over to him as required by law; that if such fees were put into the general fund of the County and wrongfully expended, such wrongful acts were the acts of plaintiff's intestate, and were unauthorized; that the County does not now have such fees in hand for the reason that plaintiff's intestate dissipated them himself, voluntarily and without any warrant of law for so doing; and that by reason thereof he has waived his right to such fees and is estopped to demand of the County a restitution of the fees which he himself voluntarily dissipated, without compulsion and in violation of law."
Of course, when the defendant says that the fees were dissipated "without any warrant of law," I do not understand that any contention is made that claims against the county were paid without warrant of law, but that the meaning is that if the treasurer paid out funds belonging to himself, although in settlement of county obligations, he did it without warrant of law. But I do not think that upon an analysis of defendant's contentions they can be deemed sound or just. If the County of McCormick received funds which belonged to Mr. Price and which were used in payment of its obligations, surely it cannot now be heard to say that the estate of Mr. Price is not entitled to reimbursement because he could have refused to let his own funds be used for county purposes. I find no elements of either waiver or estoppel in the situation. Waiver is the voluntary relinquishment of a known right, and I think we may as well frankly state that manifestly Mr. Price was not informed of his legal and constitutional rights. Nor were others prior to the decision of Salley v. McCoy, supra. Estoppel rests, of course, upon the theory that the party invoking it has been placed in some position to his detriment by the other party, but here the county has sustained no loss whatever. Indeed, it may be presumed that the use of these funds was to its advantage.
The principle that whenever one has money in his hands belonging to another which in equity and good conscience he ought to pay over to that other an action will lie to recover it, is derived from the civil law and is founded in natural justice. Perhaps a statement of this doctrine more nearly applicable to the case at bar is the following from 41 C.J., 41, 42: "When one has received money from a third person through some mistake or fraud by law or authority, which, but for the mistake or fraud, would have vested the right to the money in plaintiff, plaintiff may recover such money in an action for money had and received."
In the Federal case of Board of Commissioners of Kay County v. Pollard-Campbell Dredging Co., 251 F., 249, 252, decided by the Circuit Court of Appeals for the Eighth Circuit, it appears that a county had received certain drainage district funds which had been erroneously used for county purposes, and this action was brought to require the county to pay a claim held by the plaintiff against the drainage district which had no funds because the county had used them as aforesaid. The action was for money had and received, and the Court says:
"Such an action 'may in general be maintained whenever one has money in his hands belonging to another, which, in equity and good conscience, he ought to pay over to that other.' 27 Cyc. 849, and citations. And 'the question, in an action for money had and received is: To which party does the money, in equity, justice, and law, belong? All that plaintiff need show is that defendant holds money which, in equity and good conscience, belongs to him. * * *' 27 Cyc. 854, and citations.
"Here the plaintiff has given full value for this warrant and ought to receive payment therefor. The only reason it has not promptly had its money is that the county has taken the funds and applied them to other purposes beneficial to the county, and for which they should not have been used. A clear right of recovery has been shown. The county cannot thus appropriate to its own beneficial interest, for a legitimate county purpose, and retain the money of auother."
I do not consider that the mere fact that the county treasurer himself was the official agent through whom warrants issued by the county commissioners were paid would deprive him or his estate of collecting the amount actually due him, which was used toward the payment of county obligations. There is, of course, no suggestion that the county warrants were not issued or paid in good faith. I am clearly of opinion that the special defense of waiver and estoppel set up by the defendant is untenable. It is perhaps true, as stated by counsel, that this precise question has not heretofore been raised, but it seems to me that the controlling principles have been very definitely laid down in the recent cases, some of which will be presently cited.
It is, however, earnestly argued that the answer (Paragraphs 2 and 3) specifically denies that plaintiff's intestate, the county treasurer, performed the duties in the manner and form required by Section 2853 of the Code, and that his estate is not, therefore, entitled to receive the compensation provided by law. It is not, however, alleged therein in what respects there was failure in the performance of his duties. The executions in question were collected and hence must have been issued, and they could only have been issued by the county treasurer. Defaulting taxpayers evidently raised no question as to the proper issuance of these executions for they paid the same. Indeed, it is my judgment that there is no valid denial of the legal issuance of the executions by the county treasurer, for the reasons just stated, and also for the reason that a mere general allegation that one has not complied with the law, whether contained in a statute or otherwise, states a mere conclusion of law and does not raise an issue of fact.
In the case of Smith v. Greenville County, 188 S.C. 349, 199 S.E., 416, 419, the Court in a very well-considered opinion overruled objections made to certain executions issued by the county treasurer, holding that there was a substantial compliance with the statute, although it was not literally complied with in the matter of signature of the executions and perhaps in some other particulars. And the Court further held that in a county treasurer's action against a county to recover his execution fees the county had no such interest in such fees as would entitle it to raise the point that executions had been improperly issued, and that such objections were waived by the paying of the executions by the taxpayers and the acceptance of the benefits thereof by the county, including the penalty which went to the county. The Court says:
"In addition to the views as expressed above as to the objection by the defendant as to the manner of issuing and signing the executions in question, it seems clear that the defendant at the outset is confronted with these two propositions, to-wit:
"(1) The defendant, Greenville County, has no such interest in the execution fees as would entitle it to raise the point that they have been improperly issued.
"(2) No objections as to the form or manner of issuance can be raised here because these objections have been waived by the paying of the executions by the taxpayer and the acceptance of the benefits thereof by the County, including the penalty which went to the County.
"In Salley v. McCoy, 182 S.C. 249, 189 S.E., 196, it was clearly and emphatically held (page 205): 'Plaintiff was clearly entitled to the fees involved. The county had no interest in them. They are * * * paid (not by the public) by the defaulting taxpayers.'
"It must be borne in mind that the fees in question were paid by the defaulting taxpayers for the purpose of compensating the Treasurer for issuing the execution. Section 2854. They were not paid to be placed in the Treasury of the County for any County purpose or benefit. The taxes and penalties that were due to the County out of these executions were paid and have gone into the Treasury of the County and the County still has the taxes and penalties or has used them for County purposes."
See, also, the following cases: Salley v. McCoy, 186 S.C. 1, 195 S.E., 132; Salley v. McCoy, 189 S.C. 157, 200 S.E., 724; Wallace v. Sumter County, 189 S.C. 395, 1 S.E.2d 345, filed February 13, 1939, and Smith v. Greenville County, 189 S.C. 424, 1 S.E.2d 502, filed February 27, 1939.
While not referred to in defendant's brief, it is alleged in Paragraph 5 of the answer that the county treasurer was charged with the duty and responsibility of keeping a record of all collections received by him as county treasurer, and that the plaintiff who is now the county treasurer of the county herself has, or should have, certain records showing the number and amount of such collections on account of fees, and that she is not, therefore, entitled to maintain an action for accounting. Possibly there is some naked technical merit in this position, but it seems to me to be wholly lacking in substance. It is no doubt true as indicated in the complaint, that the exact number and amount of the executions issued and the fees collected can be determined from the records in the county treasurer's office by checking the same against the records in the delinquent tax collector's office; but it will be to the interest of the county, as well as the plaintiff, for this to be determined with entire accuracy, and I am of the opinion that the most suitable and appropriate form of action in a suit of this kind is that adopted by the plaintiff.
The answer also alleges in Paragraphs 1 that the allegation of Paragraphs 1, 2 and 4 of the complaint are admitted, these allegations alledging the death intestate of Mr. Price, the appointment of his administratrix, and that he was the county treasurer during the period in question; and this paragraph of the answer further says: "And all of the remaining allegations of the complaint are denied except such as may be hereinafter specifically admitted, if any."
It is, therefore, argued by counsel for the defendant that this is a general denial, and hence it is intimated that this circumstance alone would save the answer, taken as a whole, from demurrer. However, Paragraphs 4 to 7 (inclusive) of the answer are in my opinion reasonably susceptible of no other construction than that the defendant admits that the fees in question were received by the county treasurer and were disbursed by him in his official capacity as general funds of the defendant county.
My conclusion, therefore, is that the answer of the defendant does not contain any matter constituting a defense to the cause of action set forth in the complaint, and that the plaintiff's demurrer thereto should be sustained. And it is so ordered.
Messrs. George Bell Timmerman and J. Fred Buzhardt, for appellant, cite: Contents of answer: Sec. 468, Code 1932; 54 S.C. 485; 32 S.E., 539; 70 S.C. 470; 50 S.E., 186; 136 S.C. 453; 134 S.E., 508; 159 S.C. 506; 157 S.E., 830; 25 S.C. 181. County a municipal corporation: 6 S.C. 412; 61 S.C. 205; 135 S.C. 348; 132 S.E., 673; 156 S.C. 299; 152 S.E., 865; 174 S.C. 35; 176 S.E., 870. Action for money had and received: 73 S.C. 83; 52 S.E., 874; 4 A.L.R. (N.S.), 746; 163 S.C. 261; 161 S.E., 454; 183 S.C. 57; 190 S.E., 120.
Messrs. W.K. Charles and C.T. Graydon, for respondent, cite: Demurrer: 89 S.C. 122; 71 S.E., 42; 161 S.C. 122; 159 S.E., 473; 36 S.C. 27. Conversion: 80 P.2d 322; 17 P.2d 690; 54 S.C. 288; 32 S.E., 419; 19 So., 360; 5 P., 637; 96 N.W., 740; 8 A., 541; 91 U.S. 618. Waiver and estoppel: 182 S.C. 249; 189 S.E., 196; 186 S.C. 1; 195 S.E., 132; 97 S.C. 116; 81 S.E., 478; 161 S.C. 459; 159 S.E., 807.
December 13, 1939.
The opinion of the Court was delivered by
This is a suit in equity brought by Mrs. Ruth P. Duncan, as administratrix of the estate of T.J. Price, deceased, and former treasurer of McCormick County, against McCormick County. The facts upon which this litigation is founded are fully stated in the order of Judge Lide, from which this appeal comes to this Court.
We think that the conclusions reached by his Honor, Judge Lide, are correct. All exceptions are therefore overruled and the order of the Circuit Judge is affirmed. Let it be reported.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.