Tinsley v. Union County

40 S.C. 276 | S.C. | 1893

The opinion of the court was delivered by

Mr. Justice McGowan.

There is some confusion in this case, and it will be necessary to make a short statement of facts. The action or proceeding is upon a claim for $100 against the County of Union, for work and labor alleged to have been done by the plaintiffs on a certain highway of the county, under a contract with the county commissioners. It appears, among other things, that on September 14, 1889, the plaintiffs presented to the board of county commissioners the claim of $100 “for work and labor on a highway, near Supple Jack,” which was considered by the board on the same day and ‘ ‘disallowed,” because, as stated, the contract made by them had not been complied with. On September 20, the plaintiffs sued upon the account in the Court of Common Pleas, but the action was soon discontinued, and need not be again referred to.

On October 7, 1889, the plaintiffs presented to the board of county commissioners again a claim substantially for the same account of $100, which had attached to it the following affidavit : ‘‘Ira É. Tinsley and Bobert S. Foster, bei ng duly sworn, say, each for himself, that they were employed by the county commissioners of Union County, to wit, James F. Norman, William Gallinanyand Jasper Acock, in the year 1889, to perform certain work on the public highway leading from Union C. H. to Columbia; that the price agreed to be paid was one hundred dollars; that the work was performed according to contract, and was received after the inspection and examination by the said commissioners. (Signed only by one of the parties) E. S. Foster. Sworn to, October 7,1889. D. A. Townsend, N.P.

“We hereby apply for payment of the above account on the affidavit hereto attached, and upon such other testimony as the hoard may desire to hear. We ask that the said claim be paid without delay, and in case it be refused that the cause of such refusal be stated in writing. (Signed) D. A. Townsend, Atty.”

To this claim the county commissioners made the following objection:

“State of South Carolina, Union County. Jasper M. Acock, James F. Norman, and William M. Gallman, being duly sworn, say, each for himself, that they have read the foregoing affidavit signed by E. S. Foster, dated October 7, 1889, and deny the statements therein contained to be correct, and deny that the county is indebted to said Tinsley and Foster, as alleged, in any amount.” (Signed) W. M. Gallman, J. F. Norman, J. M. Acock. Sworn to, November 5, 1889. The following notice was served on Mr. Townsend, the attorney of the parties, on November 9, 1889: “Please take notice that the claim of Ira E. Tinsley and E. S. Foster for one hundred dollars has been ‘disapproved.’ ”

Whereupon the plaintiffs appealed from the judgment to the Circuit Court: “1. Because said board erred in deciding that the said county commissioners did not employ the plaintiffs to perform the work set forth in their claim herein, the evidence introduced by the plaintiffs in support thereof being amply sufficient, and no notice whatever having been served upon the plaintiffs of the introduction or consideration of any rebutting testimony or evidence of any kind, and there being no such rebutting testimony or evidence properly before said board for their consideration. 2. Because the said board erred in deciding that the said county commissioners did not promise to pay the plaintiffs one hundred dollars for said work, the evidence introduced by the plaintiffs being amply sufficient to sustain said promise, and no notice whatever having been served upon the plaintiffs of the introduction or consideration of any rebutting testimony or evidence of any kind, and there being no such rebutting testimony or evidence properly before said board for their consideration. 3. Because said board erred in deciding that the said county commissioners did not receive said work after its completion unconditionally, the evidence thereof introduced by the plaintiffs being amply sufficient to prove it, and no notice whatever having been served upon the plaintiffs of the introduction or consideration of any rebutting testimony or evidence of any kind whatever, and there being no such rebutting testimony or evidence properly before the board for consideration. 4. Because, the plaintiffs having informed said board in the application that other and further testimony would be introduced if the said board should not deem the testimony or evidence introduced with the application sufficient, the said board erred in not apprising the plaintiffs of the necessity for the introduction by the plaintiffs of other testimony, in order to convince the same board that said claim should be allowed. 5. Because the said board erred in not hearing said case according to the usual custom of all other courts, and not fixing a day certain for the hearing of said case, on which the plaintiffs might appear before said board with their witnesses and exercise their right of replying to any rebutting testimony or evidence introduced against said plaintiffs, or considered by said board against the plaintiffs. 6. Because said board erred in not deciding that the claim of the plaintiffs was a just and proper claim against said county, and that it should be paid, &c.

After this, some efforts seem to have been made by the county commissioners to have the case reheard, with all the parties present. But as the matter was then on appeal to the Circuit Court, the plaintiffs objected; and we need not encumber the case by setting out those ex parte proceedings, but consider only the proceedings by the commissioners on November 5, and the appeal which was taken therefrom, as hereinbefore stated. The exceptions to the decision of the commissioners came up first before his honor, Judge Norton, who required the commissioners to make a return, which they did, including, however, a statement of the proceedings which took place after the appeal, bub which, as before stated, do not touch the questions involved in the simple appeal. Under the order of Judge Norton, the commissioners made a return of their proceedings and judgment rendered November 5, 1889, disallowing the claim for $100, filed by appellants, and stating all that occurred on that occasion, viz: November 5.

1 The case came up on the exceptions herein stated, before Judge Fraser, who affirmed the judgment of the county commissioners, and dismissed the appeal, and, as we understand it, the only questions before the Circuit Court (Judge Fraser) were the errors of law and of fact alleged in the grounds of appeal from the decision of the county commissioners. “On appeal from a decision of the county commissioners to the Circuit Court, the only questions before that court are the errors of law and of fact alleged iq the grounds of appeal.” Green v. County Commissioners, 27 S. C., 9. It is, therefore, needless for this court to consider any of the various matters which occurred before or after November 5, 1889, the sole question before this court being whether the Circuit Judge committed any error of law, in overruling any one of the exceptions taken by the plaintiffs to the j udgment rendered by the county commissioners on November 5, 1889.

2 This was what is known as a “county claim,” of which the board of county commissioners has exclusive jurisdiction, subject to appeal bo the Circuit Court: See Jennings v. Abbeville County, 24 S. C., 543. Now was there any errors of law or of fact committed by the Circuit Judge, as disclosed by the exceptions to the judgment of the commissioners? Exceptions 1, 2, and 3, in different forms, complain that the proof was amply sufficient to establish the claim of the plaintiffs, and that it was error in Judge Fraser not to so hold. There are other matters stated in the exceptions, but as far as the sufficiency of the testimony was concerned, it was a question of fact, and upon appeal was reviewable by the Circuit Judge. It will be observed that on the occasion in question (November 5), the plaintiffs presented an account of $100, for work alleged to have been done by them on a certain highway, under a contract with the county commissioners. The character of the work done was not stated, except simply the charge: “To work and labor on public highway near Supple Jack, ,$100.” The only evidence offered by the plaintiffs was the affidavit of E. S. Foster, one of the plaintiffs. Mr. Townsend, attorney for plaintiffs, stated as follows: “We hereby apply for payment of the account on the affidavit annexed, and such other testimony as the board may desire to hear,” &c. To this claim the commissioners made the following answer: All three of the commissioners, Gallman, Norman, and Acock, made an affidavit, each swearing for himself; that the affidavit of Mr. E. S. Foster, dated October 7,1889, was not correct, and denying that the county was indebted to said Tinsley and Foster as alleged, or in any amount. " And thereupon notice was served upon Mr. Townsend, the attorney of the plaintiffs, on November 9, 1889, “jibat the claim of Tinsley and Foster for $100 has been disallowed.” In hearing the appeal, Judge Fraser, under section 368 of the Code, had the right to consider the facts as returned, which he did ; but this court has no right to review and reverse his decision upon the facts.

3 Exception 4 alleges that Judge Fraser committed error of law in this, “that the plaintiffs having informed the board in their application that other and further testimony would be introduced, if the board should not deem the testimony or evidence introduced with the application sufficient, the said board erred in not apprising the plaintiffs of the necessity for the plaintiffs to introduce other testimony, in order to convince the board that said claim should be allowed,” &c. The ground of appeal states the matter of notice thus: “That other and further testimony would be introduced, if the board should not deem the testimony sufficient, the said board erred in not apprising the plaintiffs of the necessity for the introduc-. tion by the plaintiffs of other testimony,” &c. But the notice astually given was somewhat different, in these words, viz: “On the affidavit annexed, and upon such other testimony as the board may desire to hear,” &c. It seems that the members of the board made the contract, whatever it was, with the plaintiff's, and having full knowledge as to what it. was, they did “not desire” to hear other testimony. Was that error of law? We do not think so, but it was a matter of discretion with the commissioners. This identical question was decided in the case of Green v. County Commissioners, 27 S. C., 9, supra, in which Mr. Justice McIver, in delivering the judgment of the court, said : “But assuming that it did appear that the board did not require such further evidence, we are unable to see that they committed error of law in not doing so. The statute does not require that the board should demand such further evidence. It is only permissive. The language of the proviso to section 623 of the General Statutes, relied on by the plaintiffs, is as follows: ‘Nothing in this section.shall be construed to prevent any board from disallowing any account in whole or in part, where so rendered and verified, if it appears that the charges are incorrect, or that the services or disbursements have not, in fact, been made or rendered, nor from requiring any other or further evidence of the truth or propriety thereof. No allowance or payment beyond legal claim shall ever be allowed. And the board of county commissioners in any county may refuse to audit or allow any claim or demand whatsoever, unless made out and verified in the manner herein specified,” &c. So that it is plain that the provision for requiring further evidence is permissive, and not mandatory, and if the board neglect to require such further evidence, no error of law can be imputed to them on that account,” &c. We see no error here.

4 Exception 5 complains that the said board “erred in not hearing said case according to the usual custom of all other courts, and not fixing a day certain for the hearing of said case, on which the plaintiffs might appear before said board with their witnesses, and exercising their rights of replying to rebutting testimony,” &c. The board of county commissioners is comparatively a new tribunal under our law, and the forms of procedure in it have never been clearly settled. “Some of the forms incident to a court have undoubtedly been conferred upon the county commissioners; but it would seem that they are regarded more as a ‘board of audit.’ They are not styled a couat, but a board; its members are called commissioners, not judges. It does not proceed according to the forms generally considered essential to a court, with parties before it as plaintiff and defendant, but in a summary way, without formal pleadings, evidence or record. We •do not think that the board of county commissioners is a court in such sense, that its record may be pleaded in bar as evidence of a former recovery in respect to a claim against a county allowed by the commissioners,” &c. See The County v. Miller, Clerk, 16 S. C., 247. We see no error here.

5 The sixth exception is too general to be entitled to consideration. We agree with his honor, Judge Fraser (but for reasons other than those stated), that there was no error of law reviewable by this court charged in the exceptions to the judgment of the county commissioners rendered on November 5, 1889.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.