Before GRIMBALL, J., Orangeburg, November, 1936,. Affirmed.

Action by J.R. Salley, individually and as County Treasurer of Orangeburg County, against S.J. McCoy and others as members of and constituting the Orangeburg County Highway Commission of Orangeburg County, wherein the defendant filed a counterclaim. From a decree sustaining the plaintiff's demurrer to the amended answer, the defendants appeal.

Decree of Judge Grimball, directed to be reported, follows:

This case comes before me on a demurrer to certain of the defenses set up in defendants' amended answer. The action was brought by plaintiff to have his right to certain compensation, by way of salary and tax execution costs, determined by this Court. The complaint alleges that the defendants constitute the Orangeburg County Highway Commission, the governing body of the county, and that plaintiff is the treasurer of the county and has been such since July, 1931, and prior thereto. It is alleged further that the county has not paid in full its portion of plaintiff's salary for the years 1931 through 1934, inclusive, nor for the expired portion of 1935, the amount claimed being stated for each year, and that plaintiff is entitled to $1.00 for each tax execution issued by him as county treasurer for the years 1932, 1933 and 1934, which has been collected, and will be entitled to $1.00 on each of the uncollected tax executions for these years, as and when collected. Also, that defendants deny plaintiff's right to the salary and fees claimed in his complaint.

The answer sets up nine separately numbered defenses, the eighth and ninth defenses being by way of counterclaim. Plaintiff's demurrer is to the third through the ninth defenses, inclusive. The first and second defenses need not be considered. Briefly stated, however, the first defense amounts to a denial of all the allegations of the complaint, save so much thereof as alleges that the defendants constitute the Orangeburg County Highway Commission, that plaintiff is treasurer of the county, and that defendants deny plaintiff's claim, as set forth in his complaint. The second defense is that plaintiff has been fully paid, as by law provided.

The gist of plaintiff's contention is that he is entitled to receive compensation for his services as county treasurer as is provided by Section 2700 and 2854, Code of Laws for 1932. Section 2700, being the general law of this State as to the salaries of county treasurers, provides for a salary of $3,500.00 for the treasurer of Orangeburg County. It (Section 2700) also provides that the State shall pay two-thirds of the salary of the various county treasurers and that the respective counties shall pay one-third thereof. In the State Appropriation Acts for the years 1931 through 1935, inclusive, this salary ($3,500.00) was reduced each year under a general schedule of reductions. See Acts 1931, p. 446, § 56; Acts 1932, p. 1577, § 6; Acts 1933, p. 652, § 79; Acts 1934, p. 1642, § 6, and Acts 1935, p. 514, § 6. Plaintiff's salary claim against the county for each year is based upon one-third of $3,500.00, less the reductions just referred to, and after crediting the amounts already received from the county. Section 2854 provides, among other things, that the treasurer shall have $1.00 from the defaulting taxpayer for each tax execution or warrant issued.

As already stated, plaintiff's demurrer is to the third through the ninth defenses, inclusive; as to the third through the seventh, on the ground that they do not set forth facts sufficient to constitute a defense; and, as to the eighth and ninth, that they do not set forth facts sufficient to constitute a legal claim or set-off against plaintiff or his action as alleged in his complaint.

The various issues arising upon this demurrer have been fully argued before me by counsel for both sides. At my request written arguments were submitted on certain phases thereof. The case is of considerable importance and I have given it serious study.

An orderly treatment demands that the sixth defense be first considered. It is as follows: "For a sixth defense: (1) That under and by virtue of the Salary Act of 1932 the plaintiff, among other county officers, was placed upon a definite basis of compensation, which said basis was fixed by the County Supply Acts from and including 1933 to 1935, and that the operation of the office of the plaintiff, and those connected therewith, is governed entirely by the terms and provisions of the said Act of 1932 and the Supply Acts from 1931 to 1935."

The Salary Act of 1932, p. 1390, Act No. 803, provides that in lieu of all fees, costs, and charges which the treasurer, auditor, clerk of Court, Judge of Probate, and sheriff of Orangeburg County are entitled to collect and retain under the general law, they "shall be paid such salaries as may be prescribed by the General Assembly and annually appropriated by it for such purpose." Section 1. The Act provides further that the offices shall keep itemized accounts of all fees collected, and on or before the tenth day of each month "they shall deliver one copy * * * to the Treasurer of said County together with payment to said Treasurer in full of all fees, costs and charges collected during the preceding calendar month." Section 2. In the Orangeburg County Supply Acts for the years 1931 through 1935, Acts 1931, p. 936, § 1; Acts 1932, p. 1985, § 1; Acts 1933, p. 1036, § 1; Acts 1934, p. 2143, § 1; Acts 1935, p. 1050, § 1, a certain appropriation was made for the "Salary of Treasurer" with the following provision appended: "Provided, The County shall pay to the Treasurer so much of this item as will make his salary from the County and State total $ ____, and acceptance of any payment from the County shall be deemed agreement to this provision."

The amount of the salary named varied for each year, as follows: 1931, $2,800.00; 1932, $2,240.00; 1933, $2,100; and 1934, $1,900.00, and these amounts should be inserted in the above provision as quoted for each year. In 1935 the Orangeburg County Supply Act covered two periods, the first for six months and the second for twelve months. The salary was fixed at $1,050.00 for the six-month period, and at $2,280.00 for the twelve-month period. Acts 1935, pp. 1050, 1055, §§ 1, 2. The salary fixed by the county supply act in each instance was less than the salary provided by the general law.

These, then, are the acts set up in the sixth defense as a bar to plaintiff's action. It is manifest that they do constitute a defense unless they are, as plaintiff contends, unconstitutional. Plaintiff says that these acts are in violation of Article 3, § 34, subsecs. 8, 9 and 10, Constitution of South Carolina 1895, in so far as they purport to deprive him, as county treasurer, of tax execution costs, and to reduce his salary from that provided by the general law.

The constitutional provisions relied on, as printed in the appendix to the 1932 Code of Laws (Volume 1, pp. 1049, 1050), are as follows:

"§ 34. Special Laws Prohibited. — The General Assembly of this State shall not enact local or special laws concerning any of the following subjects or for any of the following purposes, to wit: * * *

"VIII. To fix the amount or manner of compensation to be paid to any county officer except that the laws may be so made as to grade the compensation in proportion to the population and necessary service required.

"IX. In all other cases, where a general law can be made applicable, no special law shall be enacted.

"X. The General Assembly shall forthwith enact general laws concerning said subjects for said purposes, which shall be uniform in their operations: Provided, That nothing contained in this Section shall prohibit the General Assembly from enacting special provisions in general laws."

If the Constitution in fact remained as above quoted, this issue could be resolved in plaintiff's favor without further discussion. Holt v. Calhoun, 175 S.C. 481, 179 S.E., 501; State ex rel. Pearman v. King, 108 S.C. 339, 94 S.E., 886; State ex rel. Schroder v. Burns, 73 S.C. 194, 52 S.E., 960; Nance v. Anderson County, 60 S.C. 501, 39 S.E., 5; Dean v. Spartanburg County, 59 S.C. 110, 37 S.E., 226; DeHay v. Commissioners of Berkeley County, 66 S.C. 229, 44 S.E., 790; Gillespie v. Blackwell, 164 S.C. 115, 161 S.E., 869.

However, counsel for defendants have demonstrated to my satisfaction that the provision quoted above as subsection 8 was stricken from the Constitution in 1921. See resolution proposing amendment striking out this subsection, approved March 12, 1920, published as Act No. 905, 31 Statutes, p. 1700; and Act No. 135, approved February 28, 1921, 32 Statutes, p. 191, ratifying the amendment. Through some inadvertence, this subsection was not stricken from the Constitution as printed in the Appendix to the 1922 Code (Volume 1, pp. 544, 545), nor as printed in the 1932 Code. Therefore, for the sake of convenience, I shall refer to the various subsections by number as quoted above in the remainder of this discussion.

Having eliminated subsection 8, counsel for defendants then argue that subsection 9 does not apply to the acts in question, because another provision of the Constitution authorizes special legislation as to county government on any other than an expressly prohibited subject. They refer to Article 7, § 11, the pertinent portion of which is as follows: "§ 11. Townships — Body Corporate — Township Government. * * * The General Assembly may provide such system of township government as it shall think proper in any and all the counties, and may make special provision for municipal government."

In support of their positions in this regard they cite Fooshe v. McDonald, 82 S.C. 22, 63 S.E., 3; Carroll v. York, 109 S.C. 1, 95 S.E., 121; State v. Touchberry, 121 S.C. 5, 113 S.E., 345; Spartanburg County v. Mille, 135 S.C. 348, 132 S.E., 673; Carolina Grocery Company v. Burnet, 61 S.C. 205, 39 S.E., 381, 58 L.R.A., 687; and state that upon its correctness "in this case we are quite willing to stand or fall."

The initial question then is, are the Acts relied on by defendants, in so far as they affect this controversy, within the principle established by the cases cited above? Which principle is, as I understand it, that subsection 9 of Section 34 of Article 3 does not apply to an enactment the subject matter of which is within the intendment of Article 7, § 11.

The recent case of Holt v. Calhoun, 175 S.C. 481, 179 S.E., 501, 503, decided since the repeal of subsection 8, held that a special act taking the fees of his office from the Clerk of Court of Horry County was unconstitutional. Defendants insist that this case should be disregarded because it was evidently decided by a Court to whose attention the repeal of subsection 8 was not directed. Perhaps this was not done, but I cannot so presume, and do not agree that the authority of the case is destroyed. The learned Circuit Judge, whose decree was really adopted by the Supreme Court, held the special act in question unconstitutional as in violation of subsection 9 as well as subsection 8. The most recent amendments to Section 34 of Article 3, ratified by the General Assembly in 1935, approved February 11, 1935 (39 St. at Large, pp. 24, 27), not only purported to strike out subsection 8 but also added a proviso to subsection 9, further restricting its application, so that it (subsection 9) now reads as follows:

"Sub-section IX: In all other cases, where a general law can be made applicable, no special law shall be enacted: Provided, That the General Assembly may enact local or special laws fixing the amount and manner of compensation to be paid to the County Officers of the several counties of the State, and may provide that the fees collected by any such officer, or officers, shall be paid into the treasury of the respective counties." See Acts 1935, p. 25.

On the other hand, the amendment of 1921 simply struck out subsection 8, leaving subsection 9 unchanged. So that when the Holt case was decided the probition of subsection 9 extended to all subjects on which a general law could be made applicable, except as some other constitutional provision authorized special legislation as to a particular subject. We are concerned now only with the amendment of 1921.

As already stated, the Holt decision rests upon subsection 9, as well as subsection 8, the pertinent part of Judge Green's decree being as follows:

"With respect to the validity of the act of 1932, which act by its terms undertakes to fix the salary of the clerk of Court for Horry County, it does not seem open to serious question that the act violates the provisions of Section 34 of Article 3 of the Constitution, subdivisions 8 and 9, as the provisions have been construed by our Supreme Court in the cases of: State ex rel. Pearman v. King, 108 S.C. 339, 94 S.E., 866; State ex rel. Schroder v. Burns, 73 S.C. 194, 52 S.E., 960; Nance v. Anderson County, 60 S.C. 501, 39 S.E., 5; Dean v. Spartanburg County, 59 S.C. 110, 37 S.E., 226; DeHay v. Commissioners of Berkeley County, 66 S.C. 299, 44 S.E., 790; Gillespie v. Blackwell, 164 S.C. 115, 161 S.E., 869."

The fact that Gillespie v. Blackwell, supra, was cited leaves no room for speculation that subsection 9 may have been inadvertently mentioned in the decree, for that case, which I shall presently refer to, was decided by the Supreme Court solely under subsection 9.

Then the Holt case is binding authority for the proposition that a special act taking the fees of his office from the Clerk of Court of a particular county, and purporting to provide for him a salary in lieu thereof, pertains to a subject on which a general law can be made applicable and is violative of subsection 9. In view of the principle established by the cases cited by defendants (which I shall discuss later), it necessarily follows from this decision that such an act is not within the intendment of Article 7, § 11; that is to say, such an act is not authorized by the provision that the General Assembly may "make special provision for municipal government."

Keeping in mind that we are concerned with the constitutionality of the special acts only in so far as they purport to deprive plaintiff of the tax execution costs provided under the general law for his office and to reduce his salary, I consider these two features (salary and costs) separately.

As to the Tax Execution Costs: Chapter 109, Article 4 of the Code, 1932 (Volume 2, p. 385) is entitled "Enforced Collection of Delinquent Taxes." Section 2853, being the first section under this article, provides "* * * the county treasurer of each county shall issue, in the name of the state, a warrant or execution in duplicate against such defaulting taxpayer * * * to the Sheriff of his county * * * commanding him to levy the same by distress and sale of so much of the defaulting taxpayer's estate * * * as may be sufficient to satisfy the taxes, State, school, county and special." This section further provides that the warrant or execution thus issued shall specify the portion of the tax assessed for the State, for the public schools, for the county and for any special tax.

Section 2854 provides, "the treasurer for every such warrant issued shall have from such defaulter $1.00."

Thus under the general laws of this State governing the enforced collections of delinquent taxes, the treasurers of the various counties of the State are directed to issue tax executions or warrants in the name of the State, and for the benefit of the State, county, and school district. As compensation for the service thus rendered to the State, county, and school district, it is provided that the treasurer shall have from the defaulting taxpayer $1.00 for each warrant issued.

I do not see how it can be successfully maintained that Section 11 of Article 7 authorizes the Legislature to pass a special act appropriating to the County of Orangeburg the compensation which the law contemplates that the county treasurer shall have for setting in motion the machinery of the State for the collection of delinquent taxes. The issuance of the tax warrant and the collection of the $1.00 cost from the delinquent taxpayer under the tax laws of the State is by no means within the scope of county government. The defendant's position, most forcefully presented, is based upon an entirely specious connection arising from the fact that the taxes are due within the county, that the county is vitally interested in their collection, and that the warrants are issued by the county treasurer. These circumstances are insufficient to sustain the legislation in question upon the theory of special provision for county government. The question here is: Can the special acts in question appropriate to the county the compensation which the law provides for the plaintiff for the performance of a specific act in the name of the State and for the benefit of the State as well as the county? I am of the opinion that this cannot be done and that Section 11, Article 7, does not authorize it.

As to the Salary Claim: The general law of the State as to the salary of county treasurers is codified as Section 2700, Code of 1932; plaintiff's salary is fixed by this section at $3,500.00, two-thirds to be paid by the State and one-third by the county.

The Salary Act of 1932 does not conflict with the general law as to salary. That act simply says that the treasurer shall receive such salary as may be prescribed by the General Assembly and annually appropriated therefor.

The Supply Acts for Orangeburg County, 1931, through 1935, attempt to decrease plaintiff's salary by appropriating a certain sum for the payment of the county's share and providing that he shall be paid only so much of the amount appropriated as shall make his salary from the county and State equal a certain sum.

For instance, the Supply Act for Orangeburg County for 1932, Acts of 1932, pages 1981, 1985, provides:

"Item 110. Salary of Treasurer . . . . . .$750.00

"Provided, The County shall pay to the Treasurer so much of this Item as will make his salary from the County and State total $2,240.00."

This provision conflicts with the general law in two respects: (1) The amount of plaintiff's salary is decreased; (2) the percentage of plaintiff's salary which the county is required to pay is also decreased.

Under the general schedule of reductions, then effective, the State (in 1932) paid plaintiff its two-thirds of a total salary of $2,833.59, to wit, $1,889.06. In accordance with the provision of the supply act above quoted, the county did not pay its one-third, as required by the general law, but paid only so much thereof as made plaintiff's total compensation $2,240.00.

In recognition of the fact that the treasurers of the various counties of the State serve both the State and the county and that both should contribute to their salaries, the Legislature has enacted by general law that the State shall pay two-thirds and the county one-third. No reason can be advanced for changing this basis in Orangeburg county by a special law. If such an act is constitutional, the Legislature may provide by special act that Orangeburg county shall not pay anything to plaintiff by way of salary. Thereby the State would pay the entire salary of the treasurer of Orangeburg County and at the same time pay only two-thirds of the salaries of the treasurers of the other counties in the State.

The salary paid to the treasurer of Orangeburg County and the basis of payment as between the county and State are matters of interest throughout the State and, therefore, the Supply Acts for Orangeburg County for 1931 through 1935, in so far as they purport to vary the general law as to these subjects, cannot be justified under Section 11 of Article 7.

It remains to consider briefly the cases relied on by defendants and also the case of Gillespie v. Blackwell, supra, which is, in my opinion, more nearly analogous.

In two of the cases cited by defendants, The Carolina Grocery Company case, 61 S.C. 205, 39 S.E., 381, 58 L.R.A., 687, and the Fooshe case, 82 S.C. 22, 63 S.E., 3, the question was whether the governing board of the county in question (different from that in all other counties) could be constitutionally created by a special act. This was strictly a matter of municipal or county government under Article 7, § 11. The Court held in each case that the act in question was authorized by the constitutional provision.

In State v. Touchberry, 121 S.C. 5, 113 S.E., 345, 346, the special act required each vehicle in the County of Clarendon to pay a license, the fees collected under the Act to be used for road purposes. The Court held this special act valid, because another provision of the Constitution (Article 10, § 6) empowered the Legislature to authorize a county to levy a tax for road purposes. It is true that the Court referred to Article 7, § 11, but, in so doing, Mr. Justice Marion clearly demonstrated that the subject matter of the act was peculiarly of local interest and within the scope of county government. He said: "The amount of revenue required and the method of raising such revenue within legitimate constitutional and legislative bounds are matters peculiarly within the province of county government, for which the General Assembly may 'make special provision.'"

In Spartanburg County v. Miller, 135 S.C. 348, 132 S.E., 673, the County Supply Bill of Spartanburg County for the year 1934 appropriated $10,000.00 from the funds of the county (no general or State funds involved) to pay for auditing the offices of Spartanburg County. The point was raised that this was a special act where a general act could apply, and was, therefore, unconstitutional (subdivision 9). The Court held that it was manifest that a general act could not apply to the legislative purpose of expending $10,000.00 to audit the books of a particular county (Spartanburg). Also that this matter (auditing the county offices of Spartanburg county) would seem to be a matter clearly within the province of the government of a particular county for which the General Assembly might make "Special provision" under Section 11, Article 7.

So, it appears from this brief review of the cases cited on this point that the only two cases where the Court permitted the special acts to stand entirely upon the authority of Article 7, § 11, were the Burnet and Fooshe cases, which dealt strictly with county government, the setting up of the governing body in the two counties involved. And that in the Miller and Touchberry cases, in which Article 7, § 11, was referred to as lending added support to the decision, the subject-matter of the acts challenged under subsection 9 was of purely local interest and was clearly within the province of county government.

The local and strictly county government nature of the subject-matter of the acts involved in these cases is in striking contrast to the general, State-wide interests affected by the special legislation under attack in this case. Defendants cite one other case on this point, Carroll v. York, 109 S.C. 1, 95 S.E., 121, but it does not require discussion.

In Gillespie v. Blackwell, supra, a special act requiring the treasurer of Pickens County to give a surety bond (when the general law provided that county treasurers might under certain circumstances give a personal bond) was held to be unconstitutional because it violated subsection 9. Defendants attempt to distinguish this case from the instant case. In so doing, they recognize, in the words of their argument, that "not all questions regarding county affairs are questions of County Government" within the intendment of Article 7, § 11.

The bond of a county treasurer is conditioned upon the faithful performance of the duties (all of them) of his office. It is true, as defendants point out, that the bond is payable to the State in case of loss. (The bonds of all public officers are likewise payable to the State. Section 3058, Code, 1932.) It (the bond) is for the protection of the State against loss of taxes due it, and for the protection of the various school districts within the county from loss of taxes due them, and for the protection of the county from loss of taxes due it. Since the question of a county treasurer's bond is not solely of local (within the county) interest, but the State is concerned, Section 11 of Article 7 does not authorize the passage of a special act on this subject. Clearly the Court had this constitutional provision (Section 11 of Article 7) in mind when the Gillespie case was decided, because the case of Carolina Grocery Company v. Burnet, supra, actually decided upon the strength of this provision, was cited in the opinion.

The analogy between the applicability of the constitutional provisions under consideration to the bond of a county treasurer and their applicability to his compensation is most striking. The bond is given to secure the faithful performance of the identical duties (duties performed for the county, State, and school district), for which compensation is provided under the general law as codified in Sections 2700 and 2854. No reason suggests itself why the Constitution should be construed in one way when the subject-matter of the act is the securing of the faithful performance of the duties of a county treasurer (the bond case), and in another way when the subject-matter of the act is the compensating of the county treasurer for the performance of those same duties.

Defendants apparently seek to sustain the special legislation in question upon four additional positions. They are as follows:

2. A general law cannot be made applicable.

3. They (the special acts as to Orangeburg County) should be construed as special provisions to the general law.

4. Subsection 9 says "in all other cases," meaning all cases not mentioned above, and therefore does not apply to a special act as to the compensation of county officers, that subject having been one of the express prohibitions.

5. Any other construction would defeat the intention of the people and the Legislature as expressed by the repeal of subsection 8.

None of these positions can be sustained. I now refer briefly to each, as above expressed and in the order stated.

As to defendant's second position, I think a sufficient answer is that a general law is applicable. Sections 2700 and 2854, Code, 1932. The Legislature has itself resolved this question against defendants' contention. As was said by Mr. Justice Stabler in the Gillespie case: "The Legislature, by enacting a general law * * * has declared in effect that a general law can be made applicable in such cases."

As to defendants' third position: I need only to point to the authority of the Holt case, and of the county officer compensation case cited therein. In addition, I call especial attention to the Gillespie case, supra, and to Carroll v. York, supra.

My views as to defendants' fourth position are as follows:

(a) The clear intention of the framers of the Constitution of 1895 was by Section 34 of Article 3, to prohibit the enactment of special laws in all cases where a general law can be made applicable. In addition, it was desired to expressly prohibit special laws on certain named subjects. This intention was effectuated by naming the expressly prohibited subjects, and then providing that in all other cases no special law should be passed if a general law could be made applicable. The words "in all other cases" were not intended to limit the scope of subsection 9, but rather to extend the scope of Section 34 so as to include any subject on which a general law can be made applicable. That the Supreme Court has not construed the words "in all other rases" as limiting the applicability of subsection 9 is shown by the Holt case and by Kearse v. Lancaster, 172 S.C. 59, 172 S.E., 767; Lancaster v. Town Council, 160 S.C. 150, 158 S.E., 233; and Sloan v. Fair, 172 S.C. 485, 174 S.E., 436. In each of these cases the special act was hold unconstitutional because it was on one of the expressly prohibited subjects, and also because it violated subsection 9.

(b) Since subsection 8 has been repealed, the compensation of county officers is not now one of the subjects "enumerated above", but is one of the "other cases." The Constitution must be construed as it is, not as it was.

Nor can defendants' fifth position be sustained. There are many county officers who perform services solely for the county and whose compensation, being purely of local (within the county) interest, can be controlled by special law. This was made possible by the amendment of 1921, because the amount and manner of compensation of such officers is, I believe, within the province of county government. It is not for the Court to say whether the Legislature and the people intended, by the amendment of 1921, a broad enough revision of the Constitution to encompass this case. If they did, they failed to effectuate that intention. The question for decision here is, after all: What is a proper construction of Section 34 of Article 3 after its amendment in 1921?

For the reasons above stated, and upon a consideration of the entire matter, I am of the opinion that the special acts set up in the sixth defense are unconstitutional, as being in contravention of Article 3, § 34, subsec. 9, and that the demurrer to that defense should be sustained.

The Eighth and Ninth Defenses and Counterclaims: The first counterclaim is for $11,433.50 and represents fees collected by plaintiff since January 1, 1933, on tax executions issued for the year 1931 and prior thereto. The theory of this counterclaim is that when the Salary Act of 1932 became effective (January 1, 1933), plaintiff was no longer entitled to fees, even on tax executions previously issued.

The second counterclaim is for $11,369.64, and represents fees coming into the hands of the plaintiff on tax executions issued for the year 1931 and prior thereto, collected after January 1, 1933, and paid over by him to the sheriff of Orangeburg County.

As to the first counterclaim, what has already been said as to the constitutionality of the special acts shows that the demurrer to it should be sustained. Plaintiff was clearly entitled to the fees involved. The county had no interest in them.

As to the second counterclaim, the reasons already stated impel me to hold that the special acts are also unconstitutional, in so far as they purport to appropriate to Orangeburg County the tax execution fees provided for the sheriff under the general law as codefied in Section 2854, Code, 1932. Since this counterclaim is based upon these laws (special acts), the demurrer to it must also be sustained.

See, also, State of Oregon ex rel. v. Dunbar (1908), 53 Or., 45, 98 P. 878, 20 L.R.A. (N.S.), 1015.

In addition: (a) A construction of all the pertinent legislation, particularly the Tax Extension Act of 1932, Acts of 1932, at pages 1560, 1562, § 4, shows that the General Assembly did not intend to deprive the sheriff and treasurer of the fees involved in the counterclaims. In fact, they were expressly reserved to the officers. Thus, even though the special Acts were constitutional, the demurrer to the counterclaim would have to be sustained.

(b) In so far as the Acts in question purport to deprive the officers of fees theretofore earned, they deprive them of their property without due process of law and impair the obligation of contracts, in violation of the State and Federal Constitution (Const. S.C. Art. 1, §§ 5, 8; Const. U.S. Art. 1, § 10; Amend. 14). Fisk v. Police Jury, 116 U.S. 131, 132, 6 S.Ct., 329, 29 L.Ed., 587.

The third and seventh defenses are as follows:

For a Third Defense: "(1) These defendants allege that the items set forth in the Complaint of the plaintiff, if the same were ever due and payable, and defendants deny that such items were ever due and payable, have been barred by the Statutes of Limitations applicable to such matters, and that the cause of action not having been brought within the time required by the Statute of Limitations, and the terms and conditions of said Statutes not having been complied with, that the said claim or claims of every nature and kind whatsoever are completely barred by the Statute of Limitations, and these defendants do plead the said Statute, as a complete bar to said action."

For a Seventh Defense: "(1) That these defendants allege that if the act of 1935, referred to in Paragraph No. 7 of the complaint, is unconstitutional, null and void, as alleged in the complaint, which these defendants expressly deny, that the plaintiff was and is under the duty of properly filing his claim or claims with the proper authorities in Orangeburg County for disposition, approval, or disallowance, and that the plaintiff, having failed to comply with the provisions of the Statute law applicable thereto, this Court is without jurisdiction in the matter as the compliance with said Statute law is a condition precedent to bringing any action in accordance with law."

The Act referred to in the seventh defense was passed in 1935 and purports to establish a method of procedure to be followed by officers and employees of Orangeburg County in establishing claims against the county for salary, fees, or other compensation. The Act further fixes a time limit, and provides that in case suit be begun by any officer or employee "any and all appropriations for payment of any salaries or expenses or other money to said officer or employee, his subordinates, or for the operation of his office or services to the county, shall automatically be rescinded and expire and no payments shall be made unless specifically re-enacted by the written authorization of the Senator and a majority of the Repreesntatives from Orangeburg County." Act April 25, 1935, § 3, 39 St. at Large, p. 1210.

Plaintiff in this case followed the procedure outlined in this Act, but alleged in his complaint that the Act is unconstitutional and that defendants should be restrained and enjoined from attempting to cut off the appropriations for the operation of plaintiff's office during the pendency of this action.

Before this matter was heard by me, the Orangeburg County Delegation re-enacted the appropriation for plaintiff and his office. Thereupon plaintiff did not press his objection to the constitutionality of the Act referred to above and the seventh defense really went out of the case. However, since the question of the jurisdiction of this Court will be considered in connection with the third defense, I now refer to it (the seventh defense), also.

In arguing the demurrer to the third defense, counsel agreed that the statute of limitations referred to therein is that codified as Section 3873, Code 1932. And that defendants' position is that such of the fees as were collected and such of the salary as became due beyond the time fixed by that section are barred. Thus the question of the applicability of Section 3873 and of the correctness of the defendants' legal conclusion in reference thereto is squarely raised. The pertinent part of the section is as follows: "No claim against any county of this State shall be valid and payable unless the same be presented to and filed with the county board of commissioners of such county during the fiscal year in which it is contracted or the next thereafter."

A mere reading of the statute shows that it can apply only to a claim which, in the first instance, must be presented to the county board. In effect, it says that a claim shall not be valid until presented, and that unless it be perfected by presentment within the specified time it shall never thereafter be valid and payable.

In the case of Bank of McCormick v. McCormick County, 114 S.C. 469, 103 S.E., 787, 788, the action was commenced after the lapse of the statutory period. Recovery was allowed in spite of this fact upon the determination of the issue of original jurisdiction in the Court of Common Pleas favorably to the plaintiff's contention. Only in the dissenting opinion of Mr. Justice Hydrick was the limitation referred to, and he conceded that it could have no application if the claim was one that did not have to be presented.

Then, if it be determined that this Court has original jurisdiction of plaintiff's cause of action, independent of the statute referred to in the seventh defense, the demurrer to the third defense must be sustained.

There is a line of authority in South Carolina beginning with Jennings v. Abbeville County, 24 S.C. 543, which holds that the county board has exclusive original jurisdiction of ordinary ex contractu county claims; that as to such claims the board acts in quasi judicial capacity, and that the only method of review is by appeal to the Court of Common Pleas. I do not deem it necessary to enter into a protracted discussion of these cases. Let it suffice to say that the doctrine of Jennings v. Abbeville County, supra, had its inception in a provision of the Constitution of 1868, which was repealed before the adoption of the Constitution of 1895 and was not incorporated therein. See Bank of McCormick v. McCormick, supra. Therefore, the doctrine should not be extended, and should be followed only when similarity of facts compels adherence to the principle of stare decisis.

Plaintiff's claim is in derogation of the Salary Act of 1932, and of the County Supply Acts for the years 1931 through 1935. Without establishing the unconstitutionality of these acts he is entitled to nothing. Obviously this is a matter which requires judicial determination. The county board has no power to decide this question. Special legislation is binding upon it until same is declared to be unconstitutional. It (the county board), exhausted its authority when it paid to plaintiff the exact amount appropriated for his salary by the county supply acts.

In the case of Bank of McCormick v. McCormick, supra, the claim sued upon was for money borrowed by a special commission created by the act establishing McCormick County and authorized by the statute to borrow money to pay necessary expenses incurred in the formation of the county. The act provided that the money so borrowed should be the obligation of the county. Mr. Justice Watts wrote the opinion of the Court, holding that the Court of Common pleas had original jurisdiction of the action.

Mr. Chief Justice Gary wrote a strong concurring opinion in which he pointed out that the doctrine of Jennings v. Abbeville County, supra, is only applicable to ordinary ex contractu county claims. I quote the following from his opinion:

"In the case of Jennings v. Abbeville County, supra, the Court used the words, 'an ordinary ex contractu county claim,' in discussing the jurisdiction of the county board. The word 'ordinary,' as descriptive of the claims it had the power to adjust, was used advisedly; and, applying the maxim quoted by the Court in the Jennings case, 'Expressio unius est exclusio alterius,' the county board of commissioners has not jurisdiction of extraordinary claims, for the reason that it is not vested with the appropriate powers 'to administer adequate relief in such cases.' There is no question that the county board of commissioners is unable to grant the plaintiff the relief to which he is justly entitled.

"We have shown that the plaintiff has a right; and, where that exists, he is entitled to a remedy. The Court of common Pleas can grant the plaintiff adequate relief, as it has jurisdiction in all civil cases."

The case of Ross v. Pickens County, 146 S.C. 24, 143 S.E., 366, 367, arose out of the breach by the county of a certain highway construction contract. The plaintiff brought his action in the Court of Common Pleas. The Supreme Court held that the Court of Common Pleas had original jurisdiction of the matter. Justice Watts, who wrote the opinion of the Court, seems to have based his decision on two propositions: (1) The county authorities did not have exclusive control of the matter. (2) It would have been foolish for plaintiff to have presented his claim, since the board had already breached the contract. I quote from the decision as follows:

"These exceptions are sustained. It was not a matter of which the authorities of Pickens County had exclusive control. The highway commission of the state had some authority in the premises, and federal aid was required; the act of Congress governed insofar as federal aid was concerned.

"The Pickens authorities in charge of the matter had canceled the contracts, and the appellant had every reason to think that if he presented his claim to them they would refuse to pay; to present the claim under existing conditions would have been foolish. The order appealed from is reversed under Bank of McCormick v. McCormick County, 114 S.C. 469, 103 S.E., 787; Best v. Barnwell County, 114 S.C. 123, 103 S.E., 479."

It has already been demonstrated that the state has an interest in the payment or nonpayment of the claim in the instant case.

In the consideration of the demurrer to this defense it should be remembered that in respect to some matters the county board acts in a purely ministerial capacity; whereas, in respect to others its functions are quasi judicial. Insofar as its duties are ministerial, its acts are void if erroneous. Insofar as they are quasi judicial, they are binding upon the county and cannot be attacked collaterally. It was early established in this state that in passing upon a claim for compensation, the amount of which is fixed by statute, the action of the board is purely ministerial. The companion cases of Richland County v. Miller, Clerk of Court, and Richland County v. Miller, Clerk of Commissioners, reported respectively in 16 S.C. at page 236, and at page 244, serve as an illustration of this principle.

It seems clear that the plaintiff is entitled to a present judicial determination of his rights. It is foolish to say that the county board has exclusive original jurisdiction of a matter in respect to which its favorable action would be a nullity.

I am, therefore, of the opinion that the demurrer to the third defense should be sustained.

For a fourth defense the defendants plead estoppel as follows:

"For a Fourth Defense: (1) These defendants allege that the plaintiff has, over a period of years, to-wit, from and including 1931 to date, received and accepted without reservation or protest the compensation as acknowledged in the complaint, and that by his conduct in so doing upon which conduct said defendants acted and relied, that the plaintiff is estopped from now claiming additional compensation as alleged in his said complaint.

"(2) That under and by virtue of the statute law applicable which said law provides, among other things, that the acceptance and retention of the amounts appropriated under said law if and when the same are accepted and received, shall be considered an agreement to the compensation, provided in such statutes, and that the plaintiff, having accepted and received the amounts set forth in the County Supply Acts and the statutory provisions applicable thereto, defendants having relied and acted upon his conduct, the plaintiff is estopped as a matter of law from now claiming additional compensation or salary, and that these defendants do plead said estoppel as a complete bar to said action."

The statutory provision referred to in paragraph 2 of this defense has heretofore been set forth. It is void as a law because it is unconstitutional. The only other way in which it could operate would be as an agreement between the plaintiff and the defendants. Even an express contract between these parties that plaintiff should serve for less than his legal compensation would be invalid. I will consider this point in connection with the defense of waiver (fifth defense).

The facts alleged to constitute estoppel are simply that plaintiff, from 1931 to the time of the commencement of this action accepted without protest the compensation provided for him in the county supply acts, and that defendants acted and relied on his conduct. I see nothing here to estop plaintiff. He had no peculiar knowledge of the circumstances. The special enactments were open to the inspection of all. If the defendants "acted and relied" on plaintiff's conduct they had no authority for so doing. The county board is charged with the administration of certain phases of the law. The special acts were binding upon it (the county board), during the period referred to in this defense. It was upon these that the board "acted and relied."

The gist of the principle contended for by defendants is that a public officer who accepts compensation under an unconstitutional law in a lesser amount than he is actually entitled to, thereby is debarred from claiming his legal compensation.

In 46 C.J., p. 1028, par. 275, many authorities are cited in support of the following proposition: "The acceptance of less compensation than that provided by law for the office does not estop an officer from subsequently claiming the legal compensation."

In Galpin v. City of Chicago, 269 Ill., 27, 109 N.E., 713, 719, L.R.A., 1917-B, 176 the claimant was elected state's attorney for Cook County after the passage of a statute requiring him to turn over all fees in excess of $10,000.00 a year to the county treasurer. During his campaign he publicly declared that he would abide by the statute. During his incumbency he did so, and paid over the surplus fees each year. After the expiration of his term he made claim to them. In connection with the defense of estoppel the Court said: "Neither was Wayman estopped from claiming the compensation fixed by statute for his services as state's attorney. In Holcomb v. Boynton, 151 Ill., 294, 37 N.E., 1031, we said: 'It is a novel idea in the law of estoppel that the doctrine should be applied to a person who has been guilty of no fraud, simply because, under a misapprehension of the law, he has treated as legal and valid an act void and open to the inspection of all. As we understand the doctrine of estoppel in pais, it is based upon a fraudulent purpose and a fraudulent result. Before it can be invoked to the aid of a litigant, it must appear that the person against whom it is invoked has, by his words or conduct, caused him to believe in the existence of a certain state of things and induced him to act upon that belief. If both parties are equally cognizant of the facts, and one has acted under a mistaken idea of the law, the other party cannot say he has been deceived thereby, and is entitled to an application of the rule, but will be considered as having acted upon his own judgment solely.'"

In Santa Cruz County v. McKnight (1918), 20 Ariz., 103, 177 P., 256, 258, a statute reducing the salary of the plaintiff sheriff was passed by the legislature of the state. Without protest he accepted the decreased salary for the remainder of the current term of office, and upon his re-election, during an entire second term. The act was declared unconstitutional. The sheriff brought suit to recover the balance of his legal compensation. Defendant relied on the above facts as constituting an estoppel. Said the Court:

"In that case [ Phillips v. Graham County, 17 Ariz., 208, 149 P., 755], we held that a public officer was entitled to the salary fixed by law, and that his acceptance from time to time of a less amount than his salary did not preclude him from thereafter maintaining an action for any balance due him, and that a settlement for less than the salary fixed by law was not an accord and satisfaction, unless specifically made to appear so. * * *

"The only difference between the facts in the Phillips case and the case at bar is that in the former there was no question of the validity of the law under which the officer was paid a salary by the board of supervisors, whereas in this case the law under which appellee was paid was afterwards found to be unconstitutional. In neither case was the officer receiving the salary fixed by law, but a salary fixed by the board of supervisors upon an erroneous assumption that it had been so fixed by valid legislation. The result to the officer is the same. It amounts to a substitution of a salary not fixed by law for one that was fixed by law, and whether this occurs under a misapplication of the law or the application of an invalid law ought not to affect the legal result, as we view it."

The Court expressly recognized the rule that parties may so act under an unconstitutional law as to thereafter preclude themselves from protesting its validity, but pointed out that the application of this rule is largely confined to a situation where the party estopped has sought or derived some benefit under the law, and held that it does not apply to an officer accepting less than his statutory compensation. "It cannot well be affirmed that one who ignorantly or otherwise accepts a compensation under an unconstitutional law in a less amount than he was clearly entitled to receive takes a benefit under such law. The benefit arises in favor of the debtor and not the creditor."

The case of Wood v. Kansas City (Mo. 1901), 162 Mo., 303, 62 S.W. 433, 434, arose out of an ordinance of the defendant city which provided that the salary of the treasurer's clerk should be in full for his notarial fees, earned in taking acknowledgments on tax deeds, and that such fees should be collected from the purchasers of the tax property and paid to the city treasurer. The ordinance was illegal because opposed to the Missouri statute which fixed notarial fees. The Court held that the clerk's acceptance of his salary did not estop him from recovering from the defendant city such fees as he had earned during the period of his employment. "But defendant claims that, although the ordinance may be void, plaintiff is estopped from taking advantage of its invalidity by having received his compensation under his employment. We must confess our inability to see the force of this contention; for, with the ordinance out of consideration, plaintiff did nothing by which he could be estopped from claiming the fees received by defendant to which he was entitled. It is not claimed that he entered into any express contract, aside from the ordinance, by which his fees as notary were to be received and retained by defendant; and, the ordinance being void, there was no express contract at all with respect thereto; hence nothing to estop plaintiff from claiming them my reason of said ordinance. 'The rule is that no one can be estopped by an act that is illegal and void, and an estoppel can only operate in favor of a party injured in a case where there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out through its operation.' Nichols v. Bank, 55 Mo. App. 81, 2 Herm. Estop., 922."

The tax execution fees in the instant case are provided by law to compensate the county treasurer for issuing tax executions. They are entirely independent of his salary, and are paid (not by the public) by the defaulting taxpayers. Therefore the following language of the Court in the Wood case is exactly in point, in so far as plaintiff's claim is for fees: "Besides, the city had no interest whatever in the notary's fees; but they were paid by the grantees in the certificates and deeds, as the case might be, and went into the city treasury, who, under the facts disclosed by the record. must be held to have received them for plaintiff's use and benefit. And the obligation to do justice rests upon all persons, natural and artificial; and, if a municipality obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation. 15 Am. Eng. Enc. Law, p. 1083, note 1, and authorities cited."

The principal of the above case is supported by many additional authorities. The case which will be considered in connection with the defense of waiver also bear on the defense of estoppel.

In our own jurisdiction no case has been decided upon the exact facts, but the application of the principle of estoppel in similar cases was denied in the case of DeHay v. Com'rs of Berkeley County, 66 S.C. 229, 44 S.E., 790, and Holt v. Calhoun, 175 S.C. 481, 179 S.E., 501.

The fifth defense is as follows:

" For a Fifth Defense: (1) These defendants allege that the plaintiff waived any and all rights, if any he had, under any other laws of this State, when he elected to accept the benefits provided for him in the Supply Bills for Orangeburg County for the years 1931, 1932, 1933, 1934 and 1935, which said benefits plaintiff has accepted without objection or protests."

(a) "Waiver" is broadly defined as the voluntary relinquishment of a known right. It is said that it does not require the support of a consideration. This is certainly true where the doctrine is invoked to prevent a forfeiture, or where a party elects to abandon some provision or condition inserted in a contract for his benefit, or where some element of estoppel is presented. It is, however, not true in all cases.

Suppose A owes B $10.00 and B, needing the $5.00 which A offers, accepts this amount and gives A a release in full. He thereby "voluntarily relinquishes a known right." The release is valueless because not supported by a consideration. What Court would invoke the doctrine of waiver to aid the debtor in an action by B to recover the balance due?

That is exactly the situation here. Each month when the plaintiff accepted the "benefits" provided for him in the various supply bills, Orangeburg County was indebted to him for salary in an amount larger than he actually received. A release, duly executed to the defendants by the plaintiff each time he received his salary for the preceding month, would not have been binding upon him because of lack of consideration. What greater application has the doctrine of waiver to this case than it has to the illustration afforded by the transaction between A and B?

(b) Estoppel arises from circumstances under the control of one party making it unconscionable for him to assert a right against another. The intention of the party estopped does not affect the application of the doctrine. Waiver, on the other hand, is based upon the principle that a party in possession of a right may relinquish it if he chooses to do so. Consent, either expressed or implied, must be shown by a party relying on waiver to bar a right which the other party admittedly had. I conceive then that waiver, being contractual in its nature, can be no more effective as a bar than an express agreement or contract, and cannot arise from a transaction between parties in respect to a matter about which their express contract would be invalid as against public policy.

With practical uniformity the Courts have held that a contract whereby a public officer agrees to accept some other compensation for his services than that provided by law, whether it be more or less or whether the comparative value be uncertain, is against public policy and, therefore, void. I do not find that the question has been decided by our Court, but the weight of authority from other jurisdictions is overwhelming and the public policy involved is plain.

Under our scheme of government it is for the Legislature to fix plaintiff's compensation by proper enactment. It must be supposed that its action in this regard will be for the public good. If plaintiff could be bound by a contract entered into in respect to his compensation, the authority of the Legislature could be overthrown by "a few strokes of the pen." If by contract the compensation of a public officer could be reduced, then by contract it could be increased.

I now refer briefly to some of the authorities on this question. In 13 Corpus Juris, at page 441, numerous authorities are cited in support of the following proposition:

" Interference with Fees or Emoluments of Public Offices, The rule is well settled that, where fees or salaries are established for the services of public officers, the policy of the law forbids special contracts as to compensation between them and the public. An agreement by a public officer to accept less than the fees or salary prescribed by law is contrary to public policy and void."

In Pitsch v. Continental and Commercial Bank of Chicago, 305 Ill., 265, 137 N.E., 198, 25 A.L.R., 164, the plaintiff had, from October 1, 1911, to December 31, 1918, been employed by the defendant bank in protesting commercial paper. Notarial fees were fixed by statute. Plaintiff, during this period in pursuance of a contract with the bank, received only a portion of the legal fees. The bank's attorneys, evidently realizing that the validity of this contract was doubtful, attempted to cinch the matter by having the plaintiff, twice each month, release the bank from all liability and assign to it the fees which he had earned during the preceding two months. The consideration recited in these instruments was the continued employment of the plaintiff as a notary. The Court held that the contract was contrary to public policy and void and allowed plaintiff to recover balance of the fees. The releases and assignments were not allowed to bar plaintiff's claim because there was no valid consideration therefor. The plea of waiver and estoppel was also overruled.

In Bodenhofer v. Hogan, 142 Iowa, 321, 120 N.W., 659, 661, 134 Am. St. Rep., 418, 19 Ann. Cas., 1073, the plaintiff deputy sheriff was entitled under the law to receive $50 per month, to be paid to him by the defendant sheriff. He entered into a contract with the defendant to serve as deputy for a smaller amount. After accepting compensation under the contract for a time, he brought this action to recover his legal salary. The Court said: "The contracts on the part of a public officer to render services required of him for less than the compensation provided are against public policy has been fully settled in this and other states."

In Purdy v. Independence, 75 Iowa, 356, 39 N.W., 641, a contract by a city treasurer to collect and disburse the proceeds of a bond issue for less than his statutory fees was held to be invalid; as was, in Russell v. Cordwent (Tex.Civ.App.), 152 S.W. 239, a contract between the county commissioners and the county clerk providing for the reindexing of the county records for a fixed sum in lieu of the fees provided by law.

The principle of the above cases is so well established that I do not deem further citation of authority necessary.

Then it is apparent that plaintiff's right to his legal compensation could not be barred by an express contract with the defendants to accept in lieu thereof the "benefits" provided for him in the various supply acts. Surely, his "implied consent" arising from a mere acceptance can be no more effective. If such were the law, the public policy, which invalidates contracts in respect to certain matters, could be defeated in almost every case.

In practically every state where the defense of waiver by the acceptance of a smaller amount has been interposed to defeat a claim for statutory compensation, the Courts have refused to apply the doctrine. In many of the decided cases the facts relied on were stronger than a mere acceptance without protest of a smaller amount.

In Pitt v. Board of Education of New York, 216 N.Y., 304, 110 N.E., 612, plaintiff had accepted over a period of years a weekly salary in a smaller amount than the law provided for him. After having signed a written instrument in which he expressly released his claim for this difference. he brought an action against the board of education to recover that portion of his legal compensation which he had not received. The Court, holding that upon no principal can an officer be compelled to accept less than the compensation provided by law, said: "The doctrine of waiver has no application [to any such case]."

This question was discussed in the case of Hoffman v. Chippewa County, 77 Wis. 214, 45 N.W., 1083, 8 L.R.A., 781. In that case the plaintiffs went to the Clerk of Court and offered to print a delinquent tax list for less than the compensation provided by statute. Induced by this offer the clerk gave him the work. Plaintiffs then sued for the compensation provided by law. The Court held that the clerk had no authority to make the contract, and as to the defense of waiver said: "But could they not waive a provision for their benefit? And, having voluntarily done so, is not the offer or proposition binding upon them? But to this view it is answered that the doctrine of waiver or estoppel has no application to the case, and cannot be invoked to aid the defendant county; * * * in some of the cases above cited the facts showing waiver were quito as strong as in this case, but the Courts gave no effect to them."

In Adams v. U.S., 20 Ct. Cl., 115, cited with approval by Justice Harlan in Glavey v. U.S., 182 U.S. 595, 21 S. Ct., 891, 45 L.Ed., 1247, the facts relied on to show waiver by the officer of his statutory compensation were exceedingly strong. Nevertheless, the Court refused to apply the doctrine. "Monthly vouchers were drawn up, reciting the number of days the claimant was employed during the month and the amount of compensation allowed by the collector and Secretary, ending with a receipt 'in full for compensation for the period above stated,' which the claimant signed. We do not think he thereby relinquished his right to claim the further compensation allowed by law. If the appointing officer has no power to change the compensation of an inspector, certainly the paying officer has not. He had no right to exact such a receipt and the claimant lost nothing by signing it."

I have discovered no well-considered case which supports defendants' contention that plaintiff waived his right to the legal compensation of his office, and my investigation convinces me that the cases cited above are in accord with the overwhelming weight of authority, even as they are consonant with sound principle.

It follows that the demurrer to the fifth defense should be sustained.

It is therefore ordered that the demurrer interposed by the plaintiff to the above-mentioned defenses of the amended answer of the defendants be and the same is hereby sustained.