23 S.C. 114 | S.C. | 1885
The opinion of the court was delivered by
On February 5,1881, James M. Bax
What constitutes “debts due to the public” in the sense of those terms as used in the act of 1789 (Gen. Stat. (1872), 457), the law in force at the time of the death of the intestate, does not seem ever to have been judicially ascertained in this State. In the case of The Commissioners of Public Accounts v. Greenwood (1 Desaus., 450, 600), it seemed to be assumed that a liability for a default on the bond of one of the commissioners of the treasury was such a debt, though the question was not discussed or decided in that case, inasmuch as the decision was rested upon another ground. In State v. Harris (2 Bail., 598), O’Neall, J., in delivering the opinion of the court, expressed the opinion that the meaning of the term “debts due to the public,” as used in the act of 1789, was “debts which are due to the State as a sovereign, and for the protection of both the citizen and property,” but that debts “which arise ex contractu, and which are therefore due to her in her corporate capacity, or debts which arise ex delicto, and which are the punishment of the law for misdemeanors, cannot be entitled to any preference over the debts due to citizens.” But
In the case of Klinck v. Keckley (2 Hill Ch., 250), the same judge announced the same opinion, basing it upon what he had said in State v. Karris, and seemed to think that the words in question were only intended to embrace taxes. He, however, adds: “But perhaps the words used in the act of 1789 ought to have a little more extended meaning, and to be construed by the common law.” This, too, was a mere dictum, for all that the case really decides is that the act of 1789 only gives the State preference where the debts due to the State and the citizen were of equal degree; and hence that a junior judgment in favor of the commissioners of the poor, for certain taxes received by the intestate as chairman of the board of commissioners, and not paid over, could not take precedence of a senior judgment in favor of a citizen. It seems, therefore, that the question as to. what debts are embraced within the terms, “debts due to the public,” as used in the act of 1789, has never been decided. It is true that even the dicta of so eminent a judge, whose language has been quoted, is always entitled to the highest consideration,.but at the same time they are not authoritative, and if found to be in conflict with what we regard as the proper construction of the terms used in the act, they will not be allowed to control our decision. Our duty is simply to ascertain, by the settled rules of construction, the legislative will, as declared by their language, and announce the same.
Now, the language used in the act is very general and comprehensive, “debts due to the public.” No limitation is either expressed or implied by the terms used in the act, and we are aware of no rule of construction which would justify us in fixing any limit to general terms, when the legislature has not seen fit to do so. Hence, where we find that there is a debt and that it
Again, if the preference given to the State rested upon the ground of prerogative, then there might be good reason for confining the preference to such debts as were due to the State as a sovereign, as, for instance, taxes; but the above cases show that such is not the ground upon which the preference is based, but that it rests solely upon the terms of the act, and the only question, therefore, is as to the proper construction of the language there used.
We think, therefore, that the debt due by the intestate as surety on the bond of the county treasurer is entitled to be classed as a debt due to the public.
The next question is, whether such debt is entitled to preference over antecedent liens, either general or special. This question has been so repeatedly decided that it is not now open to argument. That a debt due to the public cannot take precedence of a debt secured by the lien of a mortgage, judgment, or execution, seems to be well settled by the following cases: Commissioners v. Greenwood, supra; Klinck v. Keckley, supra; Rutledge v. Hazlehurst, 1 McCord Ch., 466; Brown v. Gilliland, 3 Desaus., 539; Haynsworth v. Frierson, 11 Rich., 476.
It is true that the case of Percival ads. Mc Voy (Dudley, 337) appears to be somewhat in conflict with this doctrine. In that case the plaintiff sued for services rendered intestate in his last illness as a'nurse, and the administrator pleaded plene administravit preeter a particular sum which was applicable to the payment of judgments recovered in the life-time of the intestate. The jury having found for the plaintiff, defendant appealed, amongst other things, upon the ground that the demand of the plaintiff was not entitled to rank as “expenses of the last illness” and take precedence of judgments, mortgages, and executions; and
While, therefore, the debt due by the intestate as surety on the bond of the county treasurer, is a debt due to the public, and as such entitled to precedence over other bond debts and sealed claims, it cannot take such precedence over the debts secured by liens, so far as the proceeds of the property covered by such liens are concerned.
The only remaining question is as to the fund upon which costs, disbursements, and counsel fees are primarily chargeable. We agree with the Circuit Judge that, as a general proposition, they are primarily chargeable on the unencumbered assets; but so much thereof as arises from the enforcement of these liens, as for example the expenses of surveys, advertisement, and sales of the property encumbered by the liens, should be paid out of the proceeds of the sales of such property; and this we understand to be the view taken by the master and intended to be approved by the Circuit Judge, though the general terms used in the decree might, possibly, leave room for the inference that all the costs, &c., were to be charged on the unencumbered assets.
The judgment of this courtis that the judgment of the Circuit