Bank of McCormick v. McCormick County

The opinion of the Court was delivered by

This is an appeal from order of his Honor, Judge Shipp, sustaining a demurrer interposed by the county of McCormick to the jurisdiction of the Court on the ground that the Court of Common Pleas had no jurisdiction of the case against the county of McCormick.

His Honor dismissed, the complaint, and plaintiff appealed, and by eight exceptions imputes error.

The complaint alleges in substance that Tyon is supervisor, and Parks the treasurer, of McCormick county, and a special commission was created for said county, with power to audit certain claims against the county, borrow money to pay the same, and to pledge so much of the taxes of McCormick county for the year 1916 as might be necessary.

The complaint also alleges that the commission audited and approved the claims referred to, borrowed a sum sufficient to pay the same from the appellant Bank of McCormick, and executed to the bank a note for the amount so borrowed, and pledged the taxes of 1916 to secure the note, and that the treasurer was in possession of sufficient sums of taxes of 1916 to pay the note, but'the defendants refused to pay the same.

The exceptions must be sustained. The debt set forth in the complaint was fully authorized by statute.

Prior to the formation of the county, the general law of the State, Code of 1912, vol. I, sec. 635, provided in case a new county is formed it shall pay all costs and expenses of its creation. In the formation of the county certain costs and expenses were incurred.

The act establishing the county, Acts of 1916, sec. 21, p. 729, provided that all actual expenses incurred in the formation of the county were made an obligation and debt of the *475 county, and a special committee was created. This commission was authorized to borrow money in the name of the county, to pay the same, and pledge taxes of 1916 to secure the sum so borrowed. This commission had ample authority and plenary power to do what they did do. They were the ones to audit and approve the claims and borrow money necessary to pay the same. The debt, alleged in the complaint, is the liability oí McCormick county, expressly authorized by the general law and act creating the county.

The special commission passed upon and approved the same, and appellant, in good faith, advanced the money to special commission to pay the same, and it would be a perversion of justice to allow claim of appellant to be defeated. The plaintiff pursued the remedy provided by law.

The county board of McCormick county, after it was created, had nothing to do with auditing and approving the claim. It was not a claim that they created, but was created under ample authority in the formation of the county, and before they were put in office, after the county was created. In this connection it may be well to call attention that when Jennings v. Abbeville County, 24 S. C. 549, was decided each county in the State had county commissioners. These county commissioners under the Constitution of 1868 were constitutional officers. Under the present Constitution the county supervisors are not constitutional officers; no two counties are governed actually the same way. The county • government now is only expected to pay upon claims that they created and know something about.

The present county government of McCormick county did not create the claims sued on; they did not incur it, and are not expected to pass on it.

It was created, audited, fixed, and determined before they came into existence. The debt was created before they were elected. As to what was intended the board of county commissioners should pass upon and what is the jurisdic *476 tion of claims against the counties, the recent opinion of Chief Justice Gary, filed June 28, 1920, in Best v. Barnwell County, 103 S. E. 479, fully discusses the same.

The judgment is reversed.

concurring. The only question raised by the appeal is whether there was error on the part of his Honor, the Circuit Judge, in sustaining a demurrer to the complaint, on the ground that the Court of Common Pleas did not have jurisdiction of the subject matter of the action.

When the case of Jennings v. Abbeville County, 24 S. C. 543, was decided in 1886, section 19, art. IV, Constitution of 1868, was of force, and it is as follows:

“The qualified electors of each county shall elect three persons for the term of two years, who shall constitute a board of county commissioners, which shall have jurisdiction over roads, highways, ferries, bridges, and in all matters relating to taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties: Provided, That in all cases there shall be right of appeal to the State .Courts.”

Section 19, art. IV, Constitution of 1868, was struck out by a constitutional amendment ratified in 1890 (Act December 20, 1890 [20 St. at Targe, p. 649]), and there is no such provision in the Constitution of 1895.

The decision in Jennings v. Abbeville County, supra, was based entirely upon section 19, art. IV, Constitution of 1868. Therefore, the decision in that case is no longer authorita *477 tive, and we are necessarily compelled to resort to the statutory law, in determining the powers conferred upon the board of county commissioners.

Section 587-of the Code of Laws 1912 is as follows:

“Each county is a body politic and corporate, for the following purposes : To sue and be sued; to purchase and hold, for the county, lands and personalty within the limits thereof; to make all contracts, and to do all acts in relation to the property and concerns of the county necessary thereto.”

Section 991 provides that “No accounts shall be audited and ordered to be paid by the county board of commissioners, for any labor performed, fees, services, disbursements, or any other matter, unless it shall be made out in items, and accompanied with an affidavit attached thereto, and made by the person or officer presenting or claiming the samé, that the said items are correct. * * * ”

Section 993 is as follows:

“No claim against any county of this State shall be valid and payable unless the same be presented to and filed with the county commissioners of such county during the fiscal year in which it is contracted, or the next thereafter.”

There are cases in which the jurisdiction of the board of county commissioners, and of the Court of Common Pleas, is concurrent; thus showing that the jurisdiction of the board of' county commissioners is not exclusive. DuPre v. Lexington County, 90 S. C. 180, 73 S. E. 70. In that case this Court said:

“With respect to ordinary claims against the county, this Court has often held that the county board acts judicially in passing upon them, and that the only method of review is by appeal to the Circuit Court.”

In the case of Jennings v. Abbeville County, supra, the Court used the words, “an ordinary ex contractu county claim,” in discussing the jurisdiction of the county board. *478 The word “ordinary,” as descriptive of the claims it had the power to adjust, was used advisedly; and, applying the maxim quoted by the Court in the Jennings case, “Mxpressio unius est exclusio alterius,” the county board of commissioners has not jurisdiction of extraordinary claims, for the reason that it is not vested with the appropriate powers “to administer adequate relief in such cases.” There is no question that the county board of commissioners is unable to grant the plaintiff the relief to which he is justly entitled.

We have shown that the plaintiff has a right; and, where that exists, he is entitled to a remedy. The Court of Common Pleas can grant the plaintiff adequate relief, as it has jurisdiction in all civil cases.

Por these reasons, I. concur in the opinion of Mr. Justice Watts.

dissenting. The sole question for decision arose upon the demurrer of the county to the jurisdiction of the Court. The discussion of the merits of plaintiff’s claim and the liability of the county therefor is outside the issue before the Court.

It has been settled by repeated decisions of this Court, some of which are cited in the opinion of the. Circuit Court, that no action can be brought against a county in the Court of Common Pleas, unless authority to bring it is given by statute. The reason assigned in all of the decisions is that the county is but a subdivision of the State, and one of its organized agencies for the purposes of government; and, therefore, it partakes of the immunity of the State from suit, except by its consent. It follows that a claim against a county is a claim against the State, in the sense that claims against .the State can be prosecuted only by consent of, and in the manner prescribed by, the State.

The Constitution (article XVII, section 2) provides that the General Assembly may direct by law in what manner claims against the State may be established and adjusted.

*479 The legislature has provided that all claims against a county (except certain actions for damages for tort which, by the authority of special statutes, may be brought in the Court of Common pleas) must be presented to the county board of commissioners, from whose decision an appeal may be taken to the. Court of Common Pleas, and hence to this Court. Nothing can be clearer, upon reason and authority, that the remedy so provided is exclusive. Because, if the State, and the county as a part thereof, is exempt from suit, except by consent of the State, the consent may be given upon such terms and conditions as the legislature may see fit. It has seen fit to say that all claims against a county arising out of contract must be presented to and passed upon by the county board of commissioners.

The very point in issue was decided by this Court, contrary to the contention of appellant, in the case of Jennings v. Abbeville County, 24 S. C. 543, and the principles upon which that decision was rested have been followed by this Court in subsequent decisions too numerous to mention. The law has been settled, and settled right, and it is now well understood by the profession. It ought not, at this late day, to be unsettled to prevent what may appear to be a hardship in a particular case, on account of the plaintiff’s failure to present its claim to the proper tribunal within the time prescribed by the statute, and appeal from its decision, if it had been adverse to its contention.

The fact that, when Jennings v. Abbeville County was decided, the county board of commissioners was composed of constitutional officers and that the boards are now composed of statutory officers, can make no difference. The principles above stated upon which all of our decisions have been rested lead to the same conclusion, whether the boards are composed of constitutional or statutory officers; and, in fact, most of our decisions upon that point have, been rendered since the' change in the Constitution.

*480 As the legislature alone can authorize a suit against a county and has authority to direct the manner in which claims against a county, as a part of the State, may be established and adjusted, it follows that it may provide the tribunal before which it must be done and make its jurisdiction exclusive, and that is what it has done.

For the foregoing reasons, I dissent from the opinion of Mr. Justice Watts and concur in that of the Circuit Judge, except that part of it which says that, if plaintiff has no remedy under the general law, it has none at all. That remark was unnecessary to the decision of the single question before the Court, to wit: Has the Court of Common Pleas original jurisdiction of this action? Having answered that question in the negative, and, as I think, correctly, there was no occasion to say more. The opinion of the Circuit Judge will be reported. For the reasons hereinbefore stated as well as for the reasons therein stated, I think the judgment should be affirmed.