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The opinion of the Court was delivered by
Mr. Wm. H. Grimball, Acting Associate Justice.
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This is an appeal from an order of Honorable G. Dewey Oxner, Judge of the Thirteenth Judicial Circuit, by which order he granted judgment in favor of the respondent, R. A. Hudson, against the appellant, Pickens County.
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After due consideration of the exceptions to the decree of the Circuit Judge we find his conclusions satisfactory to this Court. The decree is hereby affirmed.
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Det the complaint, the answer, and the decree of his Honor, Circuit Judge Oxner, be reported.
Mr. Chief Justice Stabler and Messrs. Justices Bonham, Baker and FishburnE” concur.
Mr. Justice Carter did not participate on account of illness.
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Case posture Posture Before OXNER, J., Pickens, February, 1939. Affirmed.Suit by R.A. Hudson against Pickens County to recover portion of each fee collected by plaintiff as Probate Judge for issuing licenses. From an order granting judgment for plaintiff for $1,020.75, defendant appeals.
The complaint, answer and order of Judge Oxner directed to be reported follow:
COMPLAINT
The plaintiff, complaining of the above-named defendant, respectfully shows to the Court:
1. That the defendant, Pickens County, is a body politic and corporate, with power and authority to sue and be sued.
2. That from the 1st day of January, 1923, until the 1st day of January, 1935, the plaintiff was the duly elected and qualified Judge of Probate of Pickens County, South Carolina.
3. That during the entire term of plaintiff's office, under the general law, which is now Section 8558 of Vol. III of the 1932 Code of Laws, Probate Judges were charged with the duty of issuing marriage licenses upon the payment of a fee of One ($1.00) Dollar. Of this fee of One ($1.00) Dollar the Probate Judge of Pickens County was entitled to retain twenty-five (25¢) cents as his compensation for issuing the license.
4. That the plaintiff is the owner of twenty-five (25¢) cents for each marriage license issued by him which sum has not been received by him but retained by the defendant Pickens County and used by it as general funds in violation of law and in violation of both the State and Federal Constitutions.
5. That the plaintiff is informed and believes that the defendant. Pickens County, denies his right to the fees and compensation hereinabove mentioned, which plaintiff has been deprived of without just compensation being paid for, in violation of law and the State Constitution.
Wherefore, plaintiff prays as follows:
1. Judgment against the defendant, Pickens County, for twenty-five (25¢) cents for each marriage license issued by plaintiff as Probate Judge.
2. For an accounting to determine how much is due plaintiff.
3. For such other and further relief as may be just and equitable.
ANSWER
The defendant answering the complaint of the plaintiff respectfully shows to the Court:
FOR A FIRST DEFENSE
1. This defendant admits Paragraphs one and two of the complaint of the plaintiff.
2. This defendant denies each and every other allegation of said complaint and demands strict proof thereof.
FOR A SECOND DEFENSE
1. This defendant adopts Paragraph one and Paragraph two of the first defense and makes it a part of this defense.
2. This defendant alleges and pleads full payment, satisfaction, and accord, having paid plaintiff more salary than he was entitled to under the law and payment is hereby pleaded as a bar to any recovery on the part of the plaintiff.
FOR A THIRD DEFENSE
1. This defendant adopts Paragraph one and Paragraph two of the first defense and makes it a part of this defense.
2. This defendant alleges that at the time of the election of the plaintiff the fees referred to in Paragraphs three and four of the complaint were going to Pickens County; that the plaintiff was elected at and for the salary of twelve hundred dollars and that from year to year this salary has been
altered and that the plaintiff accepted of the defendant payment according to the salary fixed at the time and from time to time by the County Supply Bill without raising any question in connection therewith, accepting the salary in lieu of fees, and the plaintiff is thereby estopped from collecting the fees or questioning his salary, having accepted salary increases during his term of office in excess of the amount paid when he was elected by some eighteen hundred dollars and this plaintiff can not be heard to accept the benefits and/or claim his fees and estoppel is pleaded as complete bar to any recovery on the part of the plaintiff.
Wherefore, defendant having fully answered, prays (1) That the complaint of the plaintiff be dismissed with cost, (2) and for such other and further relief as to the Court may seem just and proper.
ORDER OF JUDGE OXNER
The plaintiff was Probate Judge of Pickens County from January, 1923, to December 31st, 1934. He seeks to recover in this action twenty-five cents for each marriage license issued by him as Probate Judge for this period. That is to say, he seeks to recover twenty-five cents of each one dollar collected by him as Probate Judge for issuing marriage licenses, and which it is conceded he turned over to the treasurer of Pickens County. The case was referred to the Clerk of Court for Pickens County to take the testimony. By consent of the parties, an audit was made and it is conceded that during this period the twenty-five cents on each license issued amounted to $1,020.75.
Under the general law of this State (Sec. 8558 of the 1932 Code) it is provided that Probate Judges for issuing marriage licenses shall charge a fee of one dollar and of this fee of one dollar they shall receive as compensation for their services twenty-five cents.
The defendant undertakes to escape liability for this amount upon two grounds:
First. That said general law insofar as Pickens County is concerned, was amended by Act No. 508, Acts of 1922, 32 St. at Large, p. 910, and that the Statute of 1922 is a general law.
Second. That if the Act of 1922 is not a general law, but a special law, that a special law was permissible under the constitutional amendment of 1921, 32 St. at Large, p. 191.
It is manifest from the reading of the Act of 1922 that it is a special, and not a general law. The recent decisions of the Supreme Court in Gamble v. Clarendon County , 188 S.C. 250 , 198 S.E., 857 , and Ridgill v. Clarendon County , 188 S.C. 460 , 199 S.E., 683 , show very clearly that the foregoing statute cannot be sustained as a general law.
Nor do I think that the constitutional amendment of 1921 permitted the enactment of this legislation as a special law. The defendant relies on certain language of the Circuit decree in the case of Salley v. McCoy , 182 S.C. 249 , 189 S.E., 196 . In other words, it is contended by the defendant that special laws may have been enacted prior to the constitutional amendment of 1935 regulating the fees of county officers when the duties of such office did not include the performance of functions in behalf of the State. This position is untenable. In the case of Holt v. Calhoun , 175 S.C. 481 , 179 S.E., 501 , the office of the Clerk of Court was in issue, which certainly performs no more State functions than the office of Probate Judge.
Furthermore, in the case of Ridgill v. Clarendon County, supra , the Supreme Court, under the general principles laid down in the recent decisions, commencing with Salley v. McCoy , allowed the fees of the office of Probate Judge. This case is conclusive.
It is further contended by the defendant that the office of Probate Judge is not a constitutional office. In applying the principles here involved, the Supreme Court has made no
distinction between a constitutional office and one which was not a constitutional office.
It is, therefore, ordered that the plaintiff have judgment against the defendant for the sum of $1,020.75. Source: CourtListener
