Opinion
14264
March 30, 1936.
Before JOHNSON, J., Beaufort, August, 1935. Order of the Circuit Court of Common Pleas affirmed.
Claude M. Aman was found guilty of practicing law without having procured a license as required by an ordinance of the City of Beaufort and he appealed. From an order of the Circuit Court of Common Pleas reversing the judgment of conviction, the City of Beaufort appeals.
Order of the Circuit Court of Common Pleas affirmed:
Order of Judge Johnson follows:
The above matter came on to be heard before me at the June term of Court of Beaufort County, by an appeal from the recorder's Court in the City of Beaufort, wherein the defendant was charged with failing to pay a license to practice law in the City of Beaufort, and was tried before the city recorder and found guilty, and sentenced to pay a fine of $25.00 or serve thirty days' imprisonment, conditioned that if the above-named defendant pay the $25.00 license, that the above sentence be suspended, the said appeal being based upon several grounds, among others, that the City of Beaufort was indebted to the defendant in the sum of about $40.00, and had possession of the same, and had acquired the said money as a result of a false representation to the agent of the Home Owners' Loan Corporation, i. e., that the City of Beaufort had a lien over the defendant's property on Craven Street, and as a result of the said statement, the Home Owners' Loan Corporation issued its check to the City of Beaufort in the sum of about $40.00. That the defendant directed the treasurer of the City of Beaufort to apply $25.00 of the said sum to the payment of his license to practice law for the year 1934, and to credit the remainder to his current taxes as they became due. I am of the opinion that the City of Beaufort did not have any lien over the defendant's property on Craven Street in the City of Beaufort or elsewhere, and the letter from W. Brantley Harvey, attorney for the City of Beaufort, to the city manager, bearing date of November 16, 1933, which is a part of the evidence, advises the city that they did not have any lien upon property on Craven Street in the City of Beaufort for paving improvements. Therefore, the statement made to the Home Owners' Loan Corporation by the city treasurer that the city had a lien upon the defendant's property was contrary to the facts, and as a result of the said statement the sum of about $40.00, belonging to the defendant, was received by the city from the Home Owners' Loan Corporation. It further appears that the defendant did not know that the representation that the city had a lien upon his property had been made until after the loan had been approved and closed by the Home Owners' Loan Corporation. The city acquired the money improperly in my opinion, since it had no lien. It was admitted in the argument before me that the defendant gave a lien over his property to secure the payment of that money, and it belongs to the defendant, and I so hold. The defendant had a right to direct its use as he chose, and he directed that it be credited upon his license to practice law for the year 1934, and the remainder to be credited upon his current taxes.
It is, therefore, ordered and adjudged that the sentence appealed from be and is hereby reversed and set aside, and the defendant discharged.
Mr. W.W. Elliott, for appellant, cites: As to ordinance imposing a fixed penalty for each and every offense: 29 S.C. 438; 7 S.E., 605; 63 S.C. 60; 41 S.E., 13; 112 S.C. 383; 99 S.E., 841.
Mr. Claude M. Aman, for respondent.
March 30, 1936. The opinion of the Court was delivered by
This is an appeal by City of Beaufort from order of Hon. J. Henry Johnson, Circuit Judge, reversing the recorder's Court of the City of Beaufort, wherein respondent was found guilty of practicing law in the City of Beaufort without having procured a license as required by the ordinance of the city; and was sentenced to pay a fine of $25.00, or serve thirty days imprisonment, the sentence being suspended conditioned upon the respondent at once paying the license fee of $25.00.
It is the well-settled law of this State that a debtor when he makes a payment has the right to direct and control the application. See Bell v. Bell, 20 S.C. 34, and cases therein cited. Counsel for appellant admit in printed argument that appellant did not have a lien on respondent's property.
After a careful study of the record in this case, we are of the opinion that the Circuit Judge reached the proper conclusion, and the exceptions to his order, are overruled. Let the order be reported.
Affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BONHAM and FISHBURNE concur.