Bank of McCormick v. McCormick County

103 S.E. 787, 114 S.C. 469, 1920 S.C. LEXIS 163

• Court: Supreme Court of South Carolina
• Decided: July 26, 1920
• Docket: 10488
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

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 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 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.

Mr. Chief Justice Gary and Mr. Justice Fraser concur. Mr. Justice Gage. I concur, and I also concur with what the Chief Justice has said.