A petition for a rehearing of this cause on the part of the appellants suggests error in the opinion filed in the following particulars:
(1) In disallowing the fifth and sixth defenses set up in the amended answer as resting upon the same legal and factual grounds which were presented by the eighth and ninth defenses in the original answer, and to which a demurrer was sustained on the first appeal. *Page 15
(2) In overlooking Act No. 598 of the Acts of 1935, 39 St. at Large, p. 1209, in dealing with the counterclaims of the appellants as set up in the second answer, "particularly section 4 of said act."
As to the first ground, the essence of the fifth defense is that the Treasurer collected the fees provided by the general law; that "said fees were the property of and belonged to the County of Orangeburg, and plaintiff had no interest in or claim upon them, yet he nevertheless, instead of crediting them to the County of Orangeburg, as by law he was required, unlawfully converted the said fees. * * *"
It is also alleged in this defense that the plaintiff never earned the fees, in that "he never performed the duties required of him by law."
And in the sixth defense, too, the argument seems to be founded on the claim that the Sheriff "failed and refused to perform the aforesaid duties for which the aforesaid fees would have been allowable to him as compensation," in consequence of which the executions in question were placed in the hands of a tax collector for collection. It should be stated that this tax collector is not allowed, under the law creating his office, the fees provided by the general law of the State for dealing with delinquent taxes, but is merely a salaried official.
In our opinion the variations between the fifth and sixth defenses as contained in the second answer, from the eighth and ninth defenses contained in the original answer do not raise any new issues. The opinion of this Court on the first appeal settles the question that the local laws which undertook to deprive the plaintiff of these fees are unconstitutional; when the counterclaim says that the Treasurer and the Sheriff did not perform the duties required by law of them, this is merely an assertion that these officials are not entitled to the fees, although the general law gives the fees to them, because the duties connected with the earning of these fees have been in part devolved by special legislation upon another officer (the tax collector), or else that the *Page 16 general law gives the fees to the Treasurer and Sheriff for not doing anything. This is just another attempt to revive the issue of the right to the fees under the general law of the State.
We, of course, are not in this case dealing with the broader question of the power of the Legislature, by a local Act, to provide special machinery in a given county for the administration of the tax collection system of that county, where in so doing the general laws of the State respecting the matter dealt with in the opinion filed have not been infringed upon in a constitutional sense.
The counterclaims are in tort. This is made plain by the language used in the pleading; also by the argument in appellants' brief; also by the reliance by appellants upon the 1935 Act, referred to below, which deals with counterclaims "for damages" for malfeasance, misfeasance, nonfeasance, etc.
If the respondent is liable to the county in relation to the items set forth in the fifth defense solely by reason of his refusal or failure to perform the duties of his office, the remedy is not an action in contract by way of counterclaim. This needs no extended argument or discussion.
With respect to the second ground of the petition, appellants' counsel are wholly in error in suggesting that the Act of 1935, No. 598, p. 1209, § 4, was before the lower Court at the hearing upon the first demurrer, and that the constitutionality of this statutory provision has become the law of the case. Judge Grimball, in dealing with the demurrer to the original answer, had no occasion to deal with Section 4 of the Act in question. It was not set up in any of the pleadings in that case, or mentioned in the arguments of counsel or in the decisions of the lower Court and of this Court. Nor was this provision dealt with in the present case either in the lower Court or in this Court, except in the oral argument of the appeal. In the broadest possible sense the question now raised is one dehors the record.
We are not called upon in this case to deal with the constitutionality *Page 17 or applicability of the statutory provision in question. Whether this provision is embraced within the title of the Act, or whether it is constitutional in other respects, are matters, among others, upon which we will express an opinion when the issues have been properly presented to a trial Court, and raised here by appropriate exceptions.
Petition refused.
MR. JUSTICE CARTER did not participate on account of illness.