O'Shields v. Caldwell , 207 S.C. 194 ( 1945 )

I dissent from that portion of the opinion of Mr. Justice Stukes which holds that under the pleadings Caldwell is liable for the money paid to himself under the Act of 1943, even though he may have acted in good faith in doing so. I am in accord with the other conclusions reached in his opinion.

Conceding, without deciding, that Caldwell's position was such that he could have questioned the constitutionality of the 1943 Act, it does not necessarily follow from the fact that he did not do so that he is liable for disbursing the funds as directed under an act now adjudged to be unconstitutional. The question still remains whether the circumstances were such that in the exercise of reasonable prudence and diligence he should have questioned the validity of the Act.

Section 2 of the Act "directed" the County Supervisor to draw warrants for the payment of the sums of money appropriated therein and provided that "the same shall be duly paid by the County Treasurer." This Act was passed by the General Assembly and approved by the Governor, branches of the Government coordinate in rank with this Court. The good faith of the General Assembly in passing, and the Governor in approving, this legislation must be assumed. It is not the function of this Court either to approve or condemn legislative policy. Gasque, Inc., etal. v. Nates et al., 191 S.C. 271, 2 S.E.2d 36. We are only empowered to determine whether the legislation runs counter to any constitutional inhibition. Every act of the General Assembly is presumed to be constitutional until the contrary is made plainly to appear. Even this Court does not declare an act of the Legislature invalid unless its unconstitutionality appears beyond a reasonable doubt.

Until an act has been judicially declared unconstitutional, the knowledge of its invalidity will not be imputed to a public officer who has relied upon it in good faith. "There are occasions when the presumption that every man knows the law must be enforced for the safety of society itself. An individual on trial for a violation of the criminal law will not be heard to allege, as a defense, that he did not know the act of which he was guilty was criminal," but where an officer acts in good faith and with reasonable diligence and prudence, "knowledge of the invalidity of the law in advance of any authoritative declaration to that effect will not be imputed to those who are acting under its provisions, and receiving the benefits provided by its terms."United States v. Realty Co., 163 U.S. 427, 16 S.Ct., 1120,1125, 41 L.Ed., 215.

For the foregoing reasons, ordinarily a public officer charged with disbursement of public funds is not liable for paying out public money when directed to do so by a statute, although it may subsequently be determined by the Courts that the statute is unconstitutional. In an annotation in 118 A.L.R., 787, it is stated that "an extensive search has disclosed no case wherein a public officer has been held liable for paying out public money in reliance upon an unconstitutional statute. The dearth of authority upon the point suggests the existence of a general assumption against such liability." No case has been cited by respondents' counsel in which a public official has been held liable under these circumstances.

However, under the general rule governing the conduct of public officials, I am in full accord with the statement of Mr. Justice Stukes that such an officer is liable for disbursing funds under an unconstitutional act if the circumstances show that he acted fraudulently or in bad faith. The lower Court held that from the facts and circumstances disclosed by the various acts relating to the compensation and fees of the officers of Union County, "it must be held as a matter of law that the treasurer is chargeable with knowledge that the payments were wrongful, and that he had no right to make them." I do not think any such conclusion can be reached from the pleadings and the question as to whether Caldwell acted fraudulently or in bad faith must be determined when the case is tried on the merits. It is suggested by respondents' counsel that the 1943 Act on its face is so palpably unconstitutional that any reasonable person must have known of its invalidity, but the fact that they devoted seventeen pages of their printed brief and the lower Court fourteen printed pages in its order in undertaking to demonstrate the unconstitutionality of this Act would seem to indicate that the question is at least admitting of argument. The complaint alleges that Caldwell "intentionally", "willfully", and "knowingly" disbursed these funds in violation of his duties as treasurer. These allegations are denied in the answers of appellants. The issue thus made should be determined on trial of the case without any intimation of opinion from this Court as to Caldwell's conduct.

While holding that a public officer is not liable for disbursing public funds when in the exercise of ordinary prudence he does so in good faith in reliance on an unconstitutional statute, Mr. Justice Stukes concludes that this rule does not apply where such officer pays out public money to himself. An exception to the general rule is made in such a case. He draws a distinction between payment to the officer himself and payment to the others. I am unable to see any logical basis for this distinction. If the funds are lawfully disbursed when paid to others, there is no basis for concluding that the same act becomes unlawful when such an officer pays out money to himself.

It is suggested that when an officer pays money to himself under an unconstitutional statute, he becomes liable upon an implied obligation to return the money which he has received. This theory of liability presupposes the lawful payment of the funds and the wrongful act consists in failing to make restitution when the act is declared unconstitutional. There would be no breach of duty on the part of the treasurer under these circumstances in paying out the funds. Under the allegations of the complaint, the liability of the treasurer and his surety is predicated solely upon a breach of dutyin the disbursement of the funds and even under a liberal construction of the pleadings, I do not think recovery could be had under these allegations on the theory of an implied obligation to return the money which the treasurer has received. When this action was commenced there had been no adjudication of the invalidity of the act. It will be time enough to consider the liability of the treasurer to return this money when that question arises in an appropriate action brought on that theory. The defense of the surety may or may not be the same in such an action. All of these matters, I think, should be left open for future determination.

I would remand the case for trial on the issue of good faith and due care by the treasurer in disbursing all funds, including the money paid to himself.

MR. CHIEF JUSTICE BAKER and MR. ASSOCIATE JUSTICE TAYLOR concur.