Pickens County v. Day , 45 S.C. 161 ( 1895 )

The opinion of the Court was delivered by

Mr. Justice Gary.

On the 17th day of October, 1892, the claimants, Elias Day and R. E. Bowen, filed a claim in the office of the board of county commissioners for Pickens County for the sum of $3,346. On the 24th day of November, 1892, at a meeting of the board of county commissioners, the claimants appeared before said board through their attorney, and asked to be allowed to introduce testimony in support of their claim. The board refused to allow the claimants to introduce testimony. In the minutes of the meeting on that day appears the following statement, signed by the chairman ’ of said board: “The board decided that the question before them is the approving or disapproving the claim filed in this office by Elias Day & Co. for $3,346, and as soon as acted upon, due notice will be given said parties.” On the 3d day of January, 1893, the board approved said claim to the extent of $100, but rejected the balance of it. This action of the board was filed in the office of the commissioners. On the 8th day of July, 1893, the attorneys of Day & Co. requested a certified copy of the action of the board on said claim, which was the first notice said attorneys had that said claim had been approved for $100. The attorneys of Day & Co. served notice of appeal on the 12th day of, July, 1893, from the decision of said board, and the case was heard by his Honor, Judge Wither-spoon, who rendered the decision which will be set out in the report of this case. From this decision both claimants and defendants have appealed upon exceptions, which will also be set out in the report of the case.

1 The first and second of defendants’ exceptions will be considered together. The board of county commissioners simply made a ruling on the 24th day of November, 1892, but did not make a decision upon the claim. In the minutes of their meeting on that day, they say: “As soon as acted upon, due notice will be given said parties.” Although the decision upon the. claim was filed on the 3d day of January, 1893, still the claimants did not have notice thereof until the 8th day of July, 1893; and in less than five days they served notice of appeal from such decision. This was in due time. These exceptions are, therefore, overruled.

2 The third, fourth, and fifth exceptions will be considered together, as they raise practically but the one question— whether the board of county commissioners had the right to refuse to allow the claimants to introduce testimony to sustain their claim. This question was not decided by either Green v. County Commissioners, 27 S. C., 9, or Tinsley v. Union County, 40 S. C., 279. The law allowed an appeal from the decision of the board of county commissioners, and if the board had the right to refuse to allow a claimant to introduce testimony to sustain his claim, then they could practically destroy this right by such refusal. If an appeal should be taken from their decision, the presumption would be that the board had acted correctly, and the appellant would be powerless to overcome this presumption by testimony, thus rendering his appeal nugatory. 'The right to appeal carries with it the incidental right to introduce testimony to establish the facts of the case. These exceptions are overruled.

3 We come next to a consideration of exceptions on the part of Day & Co. The first exception cannot be sustained, because, in the,absence of testimony to the contrary, the presumption is that the board of county commissioners did their duty in the premises. This case is unlike the case of Aull v. Newberry County, 42 S. C., 321, where the only testimony was that of the claimant. What we have just said in regard to the first of Day & Co.’s exceptions disposes also of their second exception.

It is the judgment of this Court, that the case be remanded to the Court of Common Pleas for Pickens County, for the purpose of making such changes in the order as are rendered necessary by the recent act of the legislature in regard to the powers and duties of county commissioners, and that in all other respects the judgment of the Circuit Court be affirmed.