Opinion
16409
September 13, 1950.
Messrs. Daniel, Russell Means, of Spartanburg, and J.H. Hall, of Gaffney, for Plaintiffs-Appellants, cite: As to the compensation of the Sheriff of Cherokee County being fixed by permanent, continuing statutes and no special current appropriation is necessary for payment thereof: 184 S.C. 316, 192 S.E. 565; 195 S.C. 92, 10 S.E.2d 359; 190 S.C. 442, 3 S.E.2d 486. As to the interpretation and construction of statutes: 157 A.L.R. 441, 224 N.C. 581, 31 S.E.2d 858; 153 A.L.R. 1054, 142 Tex. 692, 181 S.W.2d 269; 168 A.L.R. 467, 27 Cal.2d 873, 168 P.2d 16; Harp. 101. As to the Sheriff of Cherokee County being entitled to proper mileage under the Statute Law: 56 S.C. 411, 34 S.E. 691. As to action of Board of County Commissioners being quasi-judicial and not subject to collateral attack: 81 S.C. 419; 63 S.C. 189, 41 S.E. 82; 81 S.C. 201, 62 S.E. 212; 24 S.C. 543; 31 S.C. 81, 9 S.E. 692. Messrs. Osborne, Butler Moore, of Spartanburg, for Petitioner-Appellant, cite: As to the amounts payable to a sheriff in any one year being limited to the amounts appropriated by the County Supply Act: 162 S.C. 252, 160 S.E. 144; 182 S.C. 249, 189 S.E. 196; 185 S.C. 229, 193 S.E. 651; 204 S.C. 322, 29 S.E.2d 333; 195 S.C. 92, 10 S.E.2d 359, 362; 75 S.C. 560, 56 S.E. 234; 188 S.C. 250, 198 S.E. 857; 188 S.C. 460, 199 S.E. 683. As to right to recover, or offset, illegal fees paid in previous periods: 190 S.C. 473, 2 S.E.2d 52; 182 S.C. 249, 189 S.E. 196; 16 S.C. 244; 16 S.C. 236. As to payment of illegal fees to officers being void: 190 S.C. 473, 2 S.E.2d 52; 192 S.C. 489, 7 S.E.2d 454; 184 S.C. 316, 192 S.E. 565. As to public officers, charged with the performance of a definite duty, having no authority to delegate that duty: 92 S.C. 329, 78 S.E. 549, 552. As to the allowance of the present claims being unconstitutional: 198 S.C. 345, 7 S.E.2d 865; 193 S.C. 158, 7 S.E.2d 526; 81 S.C. 419, 62 S.E. 1100; 202 S.C. 236, 24 S.E.2d 365; 161 S.C. 161, 159 S.E. 23; 176 S.C. 512, 180 S.E. 673. As to an officer being entitled to fees and costs only for services actually performed: 189 S.C. 376, 1 S.E.2d 238. As to there being no estoppel against the county: 166 S.C. 481, 165 S.E. 197.
Messrs. Osborne, Butler Moore, of Spartanburg, for Petitioner-Respondent, cite: As to the findings of fact by the Circuit Court being conclusive, and not reviewable: 55 S.C. 382, 33 S.E. 456. As to the codification of Section 4084 of the 1942 Code limiting the amounts payable to those appropriated in the Annual Supply Act: 92 S.C. 455, 75 S.E. 881, Ann. Cas. 1914B 519; 207 S.C. 194, 35 S.E.2d 184; 185 S.C. 229, 193 S.E. 651; 204 S.C. 322, 29 S.E.2d 333; 144 S.C. 188, 142 S.E. 343. As to there being no legal objection to the imposition upon a public officer of additional duties, without additional compensation: 52 S.C. 520, 30 S.E. 683; 198 S.C. 390, 18 S.E.2d 324; 204 S.C. 322, 29 S.E.2d 333. Messrs. Dobson Dobson, of Gaffney, for Defendants-Respondents-Appellants.
Order of Judge J. HENRY JOHNSON in the Clary Case.
This cause arises out of a controversy over certain fees and costs asserted by the Plaintiff, the present Sheriff of Cherokee County, and is before this Court upon appeal from an Order of the Defendants, constituting the Board of County Commissioners of Cherokee County.
A brief recital of the background and history will be sufficient to disclose the nature of the controversy and the manner in and extent to which it is before this Court. The appeal in this Court was argued before the undersigned while presiding over the Court of Common Pleas for Cherokee County and was taken under advisement, with the understanding that the Attorneys for the contesting parties would prepare and file written Briefs, which have been filed and have been of substantial assistance to the Court, but the nature of the questions involved, the detail which the questions present and the importance of the points to be decided necessarily entailed some delay in the preparation and filing of the Briefs, and thereafter of this Order.
The Plaintiff is Sheriff of Cherokee County and has held that office since January 7th, 1947. His claims for fees and costs were paid to July 1st, 1947, and thereafter he filed claims for the period from July 1st, 1947, to December 31st, 1947, aggregating $7,296.87. The County Board of Commissioners having failed or refused to pass upon these claims (except some small amounts of no consequence), Plaintiff instituted an action against the Defendants, constituting the County Board of Commissioners, seeking a writ of mandamus to require this Board to pass upon his claims for this six months period.
The Petitioner, George W. McKown, in his capacity as a taxpayer and as an intervenor in this case, was not a party to that proceeding, formally entering this controversy as hereinafter stated.
The Plaintiff's Petition for a writ of mandamus was heard before Hon. T.S. Sease, Resident Circuit Judge of the Seventh Circuit, who issued the writ prayed for, but required, upon the application of the Defendant-County Board, that the claims be audited by an independent auditing firm, not resident in Cherokee County, and the Order specifically providing that this audit should be for the period from July 1st, 1947, to December 31st, 1947, and for no other months. In consequence of that Order, the Defendant-Board employed the auditing firm of Geo. G. Scott Company of Charlotte, North Carolina. Thereupon, the Petitioner herein, through his Attorneys, served formal Notice upon the members of the County Board, Defendants herein, and upon the County Attorney, demanding that the audit include detailed consideration of certain specific matters, demanding that such intervening Petitioner and his Attorneys be given due notice and opportunity to be heard with respect to any matters relating to the controversy, objecting to the allowance of various types of the claimed fees and costs, demanding that previous periods also be audited and disallowance made for such previous periods of items asserted to be illegal, and that the Board, Defendants herein, appeal from any adverse allowance of such fees and costs and the other points covered by this formal demand. These matters all appear by reference to this formal written Notice, demand and objections, signed by the Petitioner's Attorneys and served on all interested parties, it not being necessary to further detail the contents thereof.
Apparently for the reason that it was impossible for the auditing firm to complete the audit by the deadline fixed by Judge Sease's Order, the time for filing the same was extended by consent and thereafter the audit was duly filed with the County Board and evidently copies thereof furnished to the Petitioner and to the Plaintiff.
There is a companion case to this one, similar in most respects to this case, involving Lee Allison, a former Sheriff of Cherokee County, and which is being disposed of by a separate Order which will be filed at the same time as this Order. In that case Judge Sease likewise issued a writ of mandamus and the audit was made by the same firm of accountants, having been filed prior to the audit in the Clary case, and the controversy in the Allison case having actually been heard prior to the filing of the audit and the hearing in the Clary case. In the Allison case the Petitioner filed an independent proceeding, asking relief including many of the matters covered by his contest in this case, and that proceeding was heard by Special Judge Proctor A. Bonham and resulted in an Order that Petitioner be formally made a party to the contest over the Allison claim for fees, and that all questions be determined in that main contest before the Defendant-Board, the result of which is that the Allison case, as well as this case, has been litigated by the proceedings before the County Board and by appeal from its Orders. Substantially the same course of procedure was adopted in this case, that is, that Petitioner in his capacity as a taxpayer, was considered and regarded, and in fact was, a party to these proceedings and his right to such position as a party in this litigation recognized by the Plaintiff and by the Defendants.
Under this situation a hearing was first held in the Allison case before the Defendant-Board, at which certain evidence was taken and proceedings were had, in fact constituting a trial between the Petitioner and the Plaintiff over the various legal and factual questions involved, before the Defendant-Board as the body holding original jurisdiction. The Board reached its conclusion in that case, disallowing certain of the fees and costs claimed by former Sheriff Allison, but allowing a certain amount as just claims against the County. As in this case, both the Plaintiff and the Petitioner appealed from that Order of the Board in the Allison case.
Thereafter the Clary case likewise and in a similar manner came on for trial before the Defendant-Board, and at that hearing further proceedings were had and further evidence taken, in addition to which it was stipulated among the parties that the evidence taken in the Allison hearing would have equal application to the Clary case, except as the details of the two claims were different. Following that hearing the County Board of Commissioners issued, under date of November 17th, 1948, the following Order in this case:
"Pursuant to and in compliance with the Order of Honorable T.S. Sease, Resident Circuit Judge, Seventh Judicial Circuit, in the case of Roland T. Clary, Plaintiff, v. J.O. Daniel, as Supervisor, and Bez Blanton, Kye Royle, Monroe Sanders, L.B. Jolly, W.F. Burgess and W.R. Hambright, as members of the County Board of Commissioners for Cherokee County, Defendants, it was moved and seconded and passed unanimously of all present (all being present except W.R. Hambright) that all the claims of Roland T. Clary be and the same are hereby passed upon and approved in the sum of Four Thousand Eight Hundred Four and 50/100 ($4,804.50) Dollars, and find that this amount is a just claim against the County of Cherokee; and find further that the remainder of the said claims as filed be and the same is hereby disapproved.
Done in Board assembled at Gaffney, South Carolina, this the 7th day of October (November?), Anno Domini, 1948."
This was signed by the Supervisor and the four members of the Board of Commissioners attending the hearing.
From this Order of the Board and from certain rulings at the hearing, Petitioner has appealed to this Court, specifying a number of different points in which he asserts that the Board was in error. The Plaintiff likewise appealed, his single exception being to the effect that the Board was in error in not allowing the entire amount of the claim as filed by him. It is not necessary that the exceptions be considered seriatim, as the exceptions are in written form and will disclose the points presented by them and what is said in this Order will dispose of these contentions according to their substantial nature.
The claim filed by the Plaintiff, Clary, as presented to the County Board of Commissioners for the period from July 1st, 1947, through December 31st, 1947, aggregates $7,296.87. With corrections made by the Auditor for errors in addition and for amounts allowed, but not claimed, the total claim under consideration comes to $7,344.40. Of this amount the Auditor recommended the disallowance of $2,539.90, and the allowance of the difference of $4,804.50, which latter amount is the one found by the County Board of Commissioners to represent the fees and costs for this period for which the Plaintiff has "a just claim against the County of Cherokee". Except to the extent that the findings of the Board are modified herein, I am of the opinion, and so hold, that the findings of fact and conclusions of law which are implicit in the conclusion reached by the Board should be concurred in and approved by the Court, and it is so ordered.
The amount found by the Board in favor of the Plaintiff is $4.804.50. This must be modified to this extent: That the Plaintiff is also entitled to the allowance of $22.00 additional for arrest warrants by Deputy Sheriffs, but of the amount allowed by the Board there should be disallowed $675.75 for arrest warrants served by rural policemen, $56.50 for dieting of Blacksburg prisoners and $8.00 for duplications of dieting prisoners in the County Jail, which leaves a net amount of $4,086.25, which is adjudged to be the total amount of valid claims in favor of the Plaintiff, Roland T. Clary, as Sheriff of Cherokee County, to and including December 31st, 1947. All other claims on his part to and including that date be and the same are hereby disallowed.
Brief explanation should be made of the modifications herein made of the amount approved by the Board.
The first of these is the allowance to the Plaintiff of $22.00 additional for arrest warrants for Deputy Sheriffs. This comes about in this way: That where an arrest warrant contained the name of more than one Defendant, the Auditor and the Board only allowed $1.00, regardless of the number of persons named in the arrest warrant, whereas under the Statute (Section 4955 of the 1942 Code) the charge should be $1.00 for each person named in the warrant, and the record shows that $22.00 is the amount that should be allowed to give full credit on this basis.
I have disallowed $675.95 representing claims on the part of the Plaintiff for arrest warrants served by rural policemen of Cherokee County. The Auditor and the County Board of Commissioners disallowed the Plaintiff's claims for mileage of rural policemen, evidently upon the proper principle that the County paid the salaries and travel expenses, as well as costs of uniforms of the rural policemen, therefore, the Sheriff is not entitled to mileage for transportation which the County has already paid for. However, the Auditor and the Board allowed the Plaintiff's claims for arrest warrants served by rural policemen. In this the Board was in error. The Sheriff is not entitled to any fees or costs for services performed by rural policemen (it should be stated that the record shows that where both a rural policeman and a Deputy Sheriff were present when an arrest was made, that the Plaintiff's claim was allowed, but it is only in those cases where the participating officer was a rural policeman only that there is a disallowance). The services performed by rural police are services performed, not by the Sheriff, but by separate officers created by separate statute and paid for by the County. The compensation claimed in this connection falls under Section 4955, the Statute designating the fees for Magistrates' Constables, upon the theory that the Sheriff acts as Constable for the Magistrate and is, therefore, entitled to these fees. This is true as to the Sheriff and his Deputies, but not to the separate and independent officers comprising the rural police force of Cherokee County. It is provided by Section 3861 of the Code that the amounts payable to Constables shall be reduced by the amounts paid to any other person for performing the services which the Constable otherwise would have performed. And, clearly, the rural police are officers for whose services the Sheriff is not entitled to make claim for fees and costs. The rural police system of Cherokee County was created by an Act which is now Section 3792-11 of the 1942 Code and, without reciting the details of this Act, it is plain that the intent and effect of the Act was to create a separate law enforcement body, different from the Sheriff's organization, and the payment for whose services the County provides directly. In the Cherokee County Supply Act is contained the salary of these officers, as well as the mileage and uniforms, so the County is entitled to the results of the services so paid for, and not the Sheriff. The Act specifically provides that the reports and records of the rural policemen shall be kept separate from all other items handled by the Sheriff in his office, and that "All fines and penalties collected or received by the sheriff resulting from the work of the rural policemen * * * shall be kept separate from other funds in his office and shall be turned over to the treasurer's office every three months and shall take a receipt in due form for same".
If the idea that the Sheriff is entitled to the fees and costs for services performed by the rural policemen is a sound one, then the quoted provision convicts the Legislature of having done a foolish thing for it would have no meaning or effect under those circumstances. It also seems plain to me that the use of the words "All fines and penalties" is an obvious legislative error, and that what was intended to be said was that all fees and costs of the rural policemen should be kept separate and turned into the treasurer's office. Neither the Sheriff, Deputy Sheriffs, nor rural policemen collect or are entitled to any fine or penalty, so the language would be meaningless if read literally. The purpose of judicial construction of Statutes is to arrive at the intent of the Legislature and, where wrong words are used, but the real intent is obvious.
"Courts are not always confined to the literal meaning of a statute; the real purpose and intent of the lawmakers will prevail over the literal import of the words * * *. A Statute as a whole must receive a practical, reasonable and fair interpretation consonant with the purpose, design and policy of the lawmakers * * * It is also an old and well-established rule that words ought to be subservient to the intent, and not the intent to the words" ( Ashley v. Ware Shoals Mfg. Co., 210 S.C. 273, 42 S.E. 390).
I conclude, therefore, and so hold, that the Sheriff of Cherokee County is not entitled to any fees or costs for services performed by the rural policemen of Cherokee County.
The item of $56.50 disallowed under the designation of dieting Blacksburg prisoners arises in this way: Many, if not most, prisoners arrested in the vicinity of Blacksburg are placed in the Town jail there and are not brought to the County jail at Gaffney at all. Under an arrangement made by the Sheriff with a cafe in Blacksburg these prisoners were fed there and the Sheriff filed claim for the amounts so paid this cafe. However, it developed that these same prisoners, though never brought to the County Jail, were included on the jail list and, therefore, on the claims for dieting prisoners at 70 ¢ per day, and this is an obvious duplication, so that when the Sheriff is reimbursed for the costs of feeding these prisoners in Blacksburg, he is not entitled to charge for having fed them at the County jail. This amounts to the disallowed total of $56.50.
The $8.00 item disallowed under the designation duplications for dieting prisoners arises from the fact that certain prisoners were placed in jail under two warrants and, when the claim for dieting prisoners was made up, claims for some of these prisoners were made twice for the same day, because of the duplication of charges against them. Obviously the Sheriff is entitled to only one per diem dieting charge for the same day for any prisoner.
It is now proper to make brief reference to the nature of the claims for fees and costs disallowed by the Board, as affirmed by this Order.
The Sheriff filed claim for services performed solely by State Highway Patrolmen and State Constables and for mileage for these State officers. The State pays these officers, furnishes their vehicles and they operate under special Statutes relating to their duties and jurisdictions. Clearly the Sheriff is not entitled to charge the County for services performed by peace officers of the State nor for mileage in the use of the State's vehicles.
I have already pointed out one of the reasons why no charge may be made by the Sheriff for any services or expenses of rural policemen, but it is worthy of comment that much of the disallowed claim of the Sheriff consisted of claims for the service of witness warrants by rural policemen and for mileage of rural policemen. As is held herein-above, the Sheriff is entitled to no charge on account of the rural policemen, but further the claim for witness warrant fees is likewise disallowable for the same reason as claimed charges for the service of witness warrants of all other officers, most of which has been disallowed. The disallowance is based upon the proposition that the evidence shows that, with very few and isolated exceptions, no witness warrants were even issued, and very few served. The Statute makes a distinction between witness warrants and arrest warrants, but even if it be concluded that the inclusion of the names of the witnesses in the arrest warrant is tantamount to the issuance of a witness warrant (which I conclude it is not), nevertheless the fee for witness warrants, so far as the Sheriff is concerned, is for the service of the warrant and not simply for its issuance. And the record discloses to a large extent on the testimony of former Sheriff Allison and Plaintiff-Sheriff Clary that witness warrants were not actually served in but very few cases. The propriety of disallowing these claims is further emphasized by the fact that the over-whelming percentage of the witnesses for whom claims were made on the basis of alleged service of witness warrants were the arresting officers. The evidence shows that no service was ever effected on these arresting officers, and if the Sheriff had had one of his Deputies serve another Deputy, who was the arresting officer, it appears that this would not constitute a substantial basis for a charge for the service of a witness warrant, as there would be no occasion therefor. Except, therefore, as allowed, the charges for witness warrants represent claims for services that were not performed and they were properly disallowed.
The other items disallowed are comparatively small in amount, but what has been said to the principal items is of like application to them.
It should be commented that this case only involves claims for fees and witnesses in criminal cases. The Sheriff apparently collects his civil fees as his own property and no contest is involved as to them.
Plaintiff contends that the Auditor, and the Board, have failed to take into account the Sheriff's own records and have proceeded upon unreliable records in the case of some of the Magistrates. But my examination of the evidence is such that I find that the Board reached the proper conclusion, even though the evidence may be in dispute as to its allowance and disallowance of the several portions of the Plaintiff's claims, and that, under the evidence, the Board reached the same conclusion to which my own study of the record leads me.
It remains only to dispose of certain legal contentions advanced by the Petitioner. First of all, it should be commented that the Petitioner stresses the underlying proposition that it is exclusively a legislative function to levy taxes and appropriate public moneys and fix the purposes for which and the amounts within which such public money shall be expended, and that deficit spending should be discouraged and prevented. The Court is in entire accord with this laudable purpose of the proper control over public funds, and with the Petitioner's underlying argument in that respect. However, the positions taken by the Petitioner, in undertaking to limit the allowance of costs to the Plaintiff in this case to the amounts appropriated by the Cherokee County Supply Act, and other positions connected therewith, cannot, in my opinion, be sustained under the present status of the Statutes, and I will briefly recite the Petitioner's contentions and explain my reasons for denying such contentions:
Petitioner contends, first of all, that the amounts appropriated by the Cherokee County Act are the maximum amounts for which claims may be approved for Sheriff's costs, and relies upon Section 4084 of the 1942 Code, as applying specifically to Cherokee County, and Sections 1508, 1592, 3073, 3074 and 3143 as statewide Statutes prohibiting the approval of claims or the expenditure of public moneys beyond the amounts appropriated by law. There was no Supply Act enacted for Cherokee County for the year 1947, so under the general State Statute the 1946 Supply Act was applicable for 1947. Under that Supply Act there were appropriated for the Sheriff's office the following amounts:
Salary for Sheriff $1,000.00; Sheriff's Constables $5,000.00 (this is the appropriation for the costs, fees and expenses involved in the Plaintiff's claims herein); and jail expenses, including dieting of prisoners $5,000.00 (there were also appropriated the further following amounts for law enforcement which are not directly involved in this controversy; Salaries of rural police $6,480.00; travel allowance for rural police $2,400.00; uniforms for Deputy Sheriffs and rural policemen $420.00, and salaries for Deputy Sheriffs $4,860.00).
It is obviously true that, since practically $10,000.00 had been approved and paid for fees, costs, mileage and dieting prisoners for the period up to July 1st, 1947, that the allowance of additional claims to the Sheriff for the rest of the year will exceed the amounts appropriated for these purposes, and it is the position of the Petitioner that the allowance of such claims would be violative of the sections of the Code referred to, as well as the provisions of the Supply Act. It is recognized that officers (other than as specifically mentioned by the Constitution, inapplicable here) have no vested right in the emoluments of the office and that they may be changed from time to time as the Legislature sees fit. The Statutes, however, under which the Sheriff here claims are statewide Statutes and, until 1935, it was not permissible that the Legislature make special provision as to a particular County different from these general Statutes. Salley v. McCoy, 182 S.C. 249, 189 S.E. 196. But it was held by the Supreme Court that, notwithstanding the 1935 amendment to Article 3, Section 34, subdivision IX permits such special legislation with respect to the compensation of the officers of particular Counties, that could not be done by the Supply Act ( Scott v. Anderson County, 195 S.C. 92, 10 S.E.2d 359). Petitioner recognizes this rule, but contends that the enactment of Section 4084 and the other sections mentioned in the 1942 Code constitutes the enactment of a Statute in accordance with the 1935 amendment as required by the rule stated in the Scott case. However, it is my opinion that this is not a sufficient legislative adoption specifically of a change in the method of paying the Sheriff of Cherokee County, so as to limit the amounts payable to him as costs and fees to the amounts appropriated by the Supply Act. It is not questioned but that, since the 1935 amendment, this could be done, but it is my view that the necessary Statute has not been enacted.
Petitioner also contends that the allowance of additional claims for this period to the Plaintiff-Sheriff is violative of the provisions of Section 11 of the Cherokee County Supply Act under consideration, which provides in effect that the amounts therein appropriated shall be paid out as near as practical one-twelfth each month, and if there is any overpayment in any one month, that is shall be deducted the following month. If it had sufficiently been legislated as to Cherokee County to make special provision for the payment of compensation to the Sheriff so as to remove him from the general effect of the statewide Statutes, and limit him to the amounts appropriated in any particular Supply Act, then this would be a correct position, but, as indicated just above, the necessary special legislation has not been enacted to accomplish this purpose.
Petitioner also insists that the allowance of claims to the Plaintiff for this period of time should not be made without determining and deducting the amounts paid to the Sheriff for preceding periods for amounts that represent fees not legally collectible, such as fees for witness warrants not served, unallowable mileage, etc., similar to those disallowed for the period under consideration. It is true that the evidence shows that claims for fees were made and allowed in previous periods on exactly the same basis as made for this period, and that, therefore, it would appear that there have been paid amounts in previous periods for items of costs not legally applicable. This is demonstrated by the testimony of former Sheriff Allison (made applicable to the Clary case) and by the testimony of the Special Auditor who prepared this audit. The Petitioner also has insisted throughout that an audit should be made for this previous period, if necessary, in order to establish the exact amount of such disallowable, but previously paid, items. I am of the opinion that this position should be overruled. The period of time involved in this litigation is only from July 1st, 1947, to December 31st, 1947, and the Order of Judge Sease specifically limited the making of the audit to this six-month period, and no other months. Furthermore, the claims for these previous months have already been allowed and paid, and it does not seem to me that now the approval of the claims by the County Board of Commissioners, and their payment upon such approval, can be reopened and inquired into. See Richland County v. Miller, 16 S.C. 244, and 16 S.C. 236, and Section 3871 of the 1942 Code.
There are other positions incidental to these major contentions, but what has been said substantially disposes of all positions of the Petitioner presented by the exceptions.
All exceptions of both Plaintiff and Petitioner, except those sustained by the findings and holdings herein made, be and the same are hereby overruled.
It is Ordered and Adjudged that the Plaintiff, Roland T. Clary, as Sheriff of Cherokee County, is entitled to and has valid claims against Cherokee County for $4,086.25 for the period from July 1st, 1947, to December 31st, 1947, and the same are approved to this extent, but all others claims disallowed and refused.
It is Accordingly so Ordered.
Order of Judge J. HENRY JOHNSON in the Allison case.
There is this day being filed an Order signed by me in the case involving the claims of Roland T. Clary, as Sheriff of Cherokee County, in which the issues are in substance the same as those involved in this case, which is a contest over the claims of Lee Allison, as former Sheriff of Cherokee County, for the period from November 1st, 1946, to January 7th, 1947. What has been said in the Clary Order is of equal application to this case, except as to amounts and that Order is, therefore, made a part of this Order.
The Order of the County Board of Commissioners is this case approved as valid claims in favor of Lee Allison against Cherokee County in the amount of $1,393.45. This finding is approved with these modifications:
There is also allowed the additional sum of $12.00 for service of arrest warrants by Deputy Sheriffs; there is disallowed the sum of $104.00 representing the service of arrest warrants by rural policemen, leaving a balance of $1,301.45, and it is hereby adjudged that Lee Allison, as former Sheriff of Cherokee County, has valid claims against Cherokee County in the amount of $1,301.45, and that all other claims on his part be and the same are hereby disallowed and refused.
Except to the extent herein indicated, the exceptions of both the Plaintiff and the Petitioner be and the same are herby overruled.
It is Accordingly so Ordered.
September 13, 1950.
This is an appeal from orders of the Circuit Court dealing with an adjudication of the claims of a former sheriff and of the present sheriff of Cherokee County for fees alleged to be due such officials in connection with the performance of their duties as sheriff during certain periods of their incumbencies. The case came before the Circuit Court on appeal from orders of the Board of County Commissioners of Cherokee County approving in part and rejecting in part, the claims as made.
The legal questions involved in each of the two claims are largely the same, and the cases were heard together before the Circuit Court and before this Court.
The Plaintiffs as well as the defendants have excepted to the rulings of the Circuit Judge. These exceptions have been carefully considered and it is our opinion that the conclusions of fact stated in the decrees of the Circuit Judge are amply supported by the testimony and that, subject to the limitation following, the Circuit Judge has based his decrees upon correct legal principles. Hence, we will affirm the decrees with said limitation.
The present proceedings started with a petition or complaint filed by each of the claimants, charging that the Board of County Commissioners of Cherokee County had failed and refused to take any action on the claims in question and praying the issuance of a writ of mandamus "commanding them in accordance with law to pass upon the duly presented and filed claims" of the claimants. On a rule issued upon each complaint the Board was required to show cause before Judge Sease at a stated time and place why a writ and order of mandamus should not be issued "ordering and commanding you in accordance with law to pass upon the duly presented and filed claims of the plaintiff." By way of return to said rule the Board of County Commissioners set forth that certain objections had been made to the payment of the claims and that by reason of the dispute thus created, and of the necessity that a complete investigation be made in order to determine the correctness of many of the individual items of the claims, it was necessary to have an audit made of the books of each of the plaintiffs, and an investigation of many of the items involved. The position of the Board was stated to be that they had never "unconditionally refused to pay the claims" but that an audit "by competent authority under the jurisdiction of this Court" was necessary so that the rights of the taxpayers of the County might be protected. The prayer of the returns is that the Court order an audit to be made under its jurisdiction. Other allegations of the returns are not material here.
Upon the complaints and returns Judge Sease passed an order (from which no appeal was taken) directing the making of an audit at the expense of the Board, said audit to cover only the months embraced in each of the claims "and for no other months." Such an audit was made.
In due course testimony was taken before the Board of County Commissioners, following which the Board approved in part and rejected in part each of the claims in question. From such action of the Board appeals were taken to the Circuit Court. That Court, Honorable J. Henry Johnson presiding, further reduced the claims and ordered payment of such reduced amounts. From the orders of Judge Johnson the present appeals were taken.
On behalf of the County the claim is made that for periods prior to those involved in the adjudications of the Circuit Court, the plaintiffs had had claims for fees approved by the County Commissioners on the same illegal basis which in part features the claims involved in the present appeal, and that since the adjudications made by the Circuit Court are founded upon the audit ordered to be made by Judge Sease, the audit should have been extended to an inquiry into the sums so allegedly paid without warrant of law, and that the same should be offset against the claim made in the present cause.
The Circuit Judge correctly rejected this contention. It is entirely outside of the pleadings. But the Circuit Judge goes further and concludes as a matter of law that since the claims for previous months have already been allowed and paid, they may not now be reopened and inquired into. Without intimating any opinion on the question whether the claims collected by the respective sheriffs for previous months, upon vouchers which were favorably acted upon by the Board of County Commissioners, may now be reviewed, we have reached the conclusion that the County should not in the present case be barred from trying out in a separate proceeding any claim which it may desire to assert for previous payments alleged to have been illegally authorized by the Board.
There is no testimony in the record upon which a judgment by way of offset or otherwise can be founded in respect to such payments. The record clearly discloses that an audit will be necessary to deal with that phase of the County's claim. The pleadings in the cause are expressly limited to the specific claims as submitted to and passed upon by the Board of County Commissioners and we should not extend the scope of this appeal into a field which thus is not properly presented for decision.
Whether as a matter of law the previously paid claims can now, long after the approval and payment, be made the subject of an independent suit, and whether in the present proceedings, if the scope of the pleadings had embraced them, the payments so made could have been offset against the present claims, are matters which we leave for decision if and when issues thereabout are properly presented.
In accordance with the foregoing we adopt the orders of the Circuit Judge as the opinion of this Court, subject to the limitation that the County, in proceedings brought by it or on its behalf, shall not be held to be barred by this opinion from taking such action as it may deem proper to assert a right of recovery of sums heretofore paid in violation of the rules laid down in Judge Johnson's decrees.
The judgment of the Circuit Court as hereinabove modified is affirmed.