State v. Baldwin

14 S.C. 135 | S.C. | 1880

The opinion of the court was delivered by

McIvee, A. J.

This was an action against Baldwin, as county treasurer, and the other defendants, as his sureties on his official bond, to recover certain amounts which, it was alleged, had been collected by Baldwin, as county treasurer, and not accounted for properly to the plaintiffs. There ivas no dispute about the fact that the money had been collected, and the only controversy was as to whether it had been properly accounted for — the defendants contending that the amounts claimed by the plaintiffs were lawfully retained by Baldwin for commissions due to him as county treasurer. The real question, therefore, is whether the law, as it stood at the time of Baldwin's appointment, and at the time of the alleged default, allowed any commissions to a county treasurer, and, if so, how much. It is conceded that there was, then, no statute fixing the compensation to-be allowed county treasurers, and the Circuit judge so instructed the jury, and, further, that in the absence of any such statute the treasurer was not entitled to any compensation. To this charge exception was duly taken, and the judge was requested to-charge that, in the absence of a statute fixing the compensation of a county treasurer he would be entitled to a reasonable compensation, the amount of which would be a question for the jury, which was refused. We think that there was no error in the charge or refusal to charge as requested. One who renders service to the state, for which there is no compensation provided by statute cannot, as in the case of services rendered to a private person, raise an implied assumpsit against the state, and for such service he has no legal claim, that is, no claim which can be enforced by process of law. He cannot make such claim the basis of an action against the state, for the state cannot be sued in its own courts, except by its own consent, nor can he interpose such claim as a discount or set-off, which is nothing but a cross-action to an action brought against him by the state. Treasurer v. Cleary, 3 Rich. 372. The money which Baldwin collected constituted a part of the taxes due to the state, and the law, (Gen. Stat., Chap. XIII., § 12, p. 84,) required that “all the moneys collected by him for or on account of the state taxes”' should be paid to the state treasurer, and, when paid into the state treasury, not one dollar of it could be withdrawn except “in pursuance of appropriations made by law.” Const., Article IX.f § 12. If, then, there wras no statute authorizing the county treasurer to retain anything for his commissions he was bound to-forward every dollar of taxes collected by him to the state treasurer, and if there was no act appropriating any sum for the payment of his commissions, as it is not pretended that there is, he could not lawfully claim any compensation whatever, and for payment, even assuming his claim to have been of the most righteous character, he must, like all other persons having claims-against the state, resort to his petition to the legislature, the body which is exclusively entrusted with the power of disposing of the revenue. It is clear, therefore, that the question as to-what was a reasonable compensation for his services could not have been left to the jury, for as is said in Treasurer v. Cleary,. supra: “ If that were allowed it is obvious the revenue would be under the control of the court and jury and not the legislature.”

So far as the taxes collected for the county were concerned, it is very clear, in the absence of any statute authorizing the county treasurer to retain a certain percentage thereon for his commissions, that any claim which he might have against the county ior compensation for his services in collecting the county taxes could not be determined by the verdiet of a jury, but, like all other claims against the county, should have been submitted to-the county commissioners to be audited, and could only be paid upon their order.

The next question is as to the tenure of office of a county treasurer. As the law stood at the time of Baldwin’s appointment, and at the time of the default alleged, there was no statute fixing the term of office of a county treasurer. The original act providing for the appointment of such an officer, act of September 15th, 1868, (14 Stat. 66), simply invests the governor with power to appoint county treasurers, by and with the advice and consent of the senate, but makes no provision as to the duration of their term of office, and by a subsequent act of February 3d, 1870, (14$ía¡í. 329), the governor was authorized “whenever to him there appears good and sufficient cause,” to remove any county treasurer and report the fact, together with his reasons-therefor to the general assembly. Thus the law stood at the time, though there has been, subsequently, an act passed limiting the term of office of county treasurers to two years. Act of March 19th, 1874. 15 Stat. 777.

It is plain then that unless Baldwin was removed from office by the governor he would have had the right to hold the office from the time of his original appointment in February, 1871, up to and after the time when he was alleged to be in default by a failure to account for all the taxes collected in 1873, and that his official bond, originally given, would cover that period, and for any default committed during that time his sureties would be liable. It will be observed that there is not the slightest evidence that Baldwin was ever removed from office by the governor, and if he was never removed we do not see how he could be re-appointed, unless he had resigned, of which there is no pretence. Indeed, as it appears to us, there cannot be said to be any evidence tending to show that he was ever re-appointed. Baldwin himself does not say so, but only says, what, if objected to would have been incompetent, that Governor Moses told him that he had re-appointed him. He does not pretend that he gave any new bond, but, on the contrary, says he did not give a new bond. He produced no new commission, and does not pretend to claim that he ever had a new commission, while the books of the secretary of state’s office show only one appointment, and the records of the treasurer’s office only one bond. Under this state of the evidence the Circuit judge might possibly have been warranted in declining to refer the issue of fact as to whether Baldwin had been re-appointed to the jury upon the ground that there was in reality no testimony upon which such issue could be raised, but, in fact, the judge practically did leave that issue to the jury by saying: “If he committed a defalcation at the date alleged in the complaint, and had not then been re-appointed, his sureties are liable.”

Our next inquiry will be whether there was any error of law committed in recommitting the case to the jury after the first announcement of the verdict. It is a very common practice, one which has the sanction of long usage, and is undoubtedly correct, for a Circuit judge to recommit the record to the jury after their verdict has been announced for the purpose of enabling them to put the verdict in proper and complete legal form, and this seems to have been the purpose in this case. 'The action was against three persons, and the verdict, as first announced, was manifestly incomplete and not in legal form; while it determined the issues as between the plaintiffs and one of the defendants, as to the other two it left the issues wholly undetermined. The jury, therefore, when they first announced their verdict, had maifestly failed to complete their task, and the judge properly recommitted the case to them for the purpose of enabling them to finish their work. The case was not recommitted because the jury had made an incorrect finding, but because they had failed to find at all as to two of the defendants. If the verdict, as first announced, had been in favor of the plaintiffs as against Baldwin, and in favor of the other two defendants, then, even though it may have been manifestly without any evidence to sustain it so far as these two defendants were concerned, the case could not have been recommitted to the jury with instructions to find another verdict, for in such case the yerdict would have been complete, and, however erroneous it might be, it would have to stand until set aside by'a proper proceeding for that purpose. It may be, and doubtless was true, that the jury, while satisfied that a verdict should go against Baldwin, were desirous of releasing the sureties, if they eould do so legally; but when they were told, and correctly told, that if Baldwin had not been re-appointed at the time he committed the defalcation charged, the sureties were legally liable, they could no longer hesitate, and therefore returned the verdict against all of the defendants.

The exceptions taken to the amount of interest allowed have not been pressed in the argument here, and, therefore, we are not informed of the grounds upon which it is claimed that there was error in this respect, and we have not been able to discover any.

The judgment of the Circuit Court is affirmed.

"Willard, C. J., and McGowan, A. J., concurred.