I am unable to concur in the opinion by Chief Justice Stabler in this case insofar as it sustains the demurrer to that portion of the second defense which pleads a credit or offset to respondent's claim to fees and costs to the extent of the salary paid him.
The extension of the principles of the Salley cases, Salleyv. McCoy 182 S.C. 249, 189 S.E., 196; Salley v. McCoy,186 S.C. 1, 195 S.E., 132, to the problems presented by the second defense in this case will open up a flood of litigation that may involve enormous liabilities on the part of the various counties in the State — liabilities that *Page 271 are without any moral foundation. My opinion is that theSalley cases have no application and that in the present case the county has a right of offset. This defense presents a question that is not touched by any of the previous decisions of the Court.
The writer of the two opinions in the Salley cases, had in mind the possibility that the import of those cases might suggest the contention that the principles therein declared are applicable in a wider range than was intended, and to guard against any possible misapprehension on that subject, care was taken in both cases to expressly limit the effect of the opinions.
In the first of the two cases the concluding paragraph of the opinion on the motion for rehearing includes the following (page 216): "Suffice it to add that the Court's decision is limited to the facts of the present case. We are dealing solely with the compensation of the county treasurer, and with the disposition of fees that come into the hands of such officer * * *." (Italics added.)
Even more specific, though dealing with the precise point covered by the above quotation, was the following statement: "As hereinbefore stated, the action was brought by the respondent to recover salary items and tax execution fees, which he alleges are due him under the provisions of Sections 2700 and 2854 of the Code." (195 S.E., 134.)
In the present case we are dealing with a claim by asheriff. Section 2700 of the Code is a statewide Act providing the salaries for certain county officers. The sheriff is not one of these. Section 2854 deals with the execution and other fees due the treasurer and the sheriff.
There is no statewide statute in South Carolina providing for or relating to the salary of the sheriff and no constitutional provision touches that subject, though the office is created by the Constitution.
Accordingly, when it was held in the Salley cases that the treasurer could recover the portions of his salary which the county had attempted to take away from him by the *Page 272 annual Appropriation Acts, we were dealing with a situation in which special local laws were attempting to cut down the salary of the treasurer in derogation of the general law on that subject. We merely applied the constitutional principle that the Legislature cannot by a local law change the general law of the State respecting the same subject matter.
The annual Appropriation Bills for Clarendon County provide a fixed salary for the sheriff. The general laws of the State providing for the payment of the sheriff of the fees and costs now in question each contains a provision requiring the payment of the fees and costs in Clarendon County to the county treasurer. The annual Appropriation Acts and these attempted exemptions of Clarendon County from the general law, relating to the sheriff's compensation, must be read together. As so read, we have the equivalent of a local Act fixing a salary, and providing for the payment of the fees of the office into the county treasurer. Starting with this proposition, no question arises in the present case as to the amount of salary received by the sheriff; the whole problem shapes up thus:
Under the general law of the State the sheriff was entitled to certain fees. There was no general law relating to his salary. The county, by annual Appropriation Bills, undertook to limit the sheriff's compensation to a salary designated therein. Under the Salley cases, this limitation did not deprive the sheriff of his fees. But he accepted the salary with full knowledge that it was tendered to him in full payment for his services. Since he is not bound (under the Salley cases) by this Act on his part and can still recover the fees provided by law, he has nevertheless received from the county payments (denominated salaries) that he would not have received if he had not led the county to believe that the salary payments were being accepted by him each year in full payment for his *Page 273 services as sheriff. He is estopped to reject the county's claim of off-set of the salary items.
We are not here dealing with the question whether, by accepting the salary, he is estopped to claim fees. On the contrary we admit his right to the fees. But having caused the county to pay him an annual salary in the belief that he was accepting the same in full settlement, this salary should at least be credited against his fee claims by way of offset as set up in the second defense.
This holding does not touch the Salley cases at any point. It amounts merely to a decision that an officer whose claim to salary is dependent exclusively on special local laws which provide that the salary shall be in full of all claims, may not take the salary with full knowledge of the belief of the county that he will accept the same in full payment and thereafter when a large amount of fees has accumulated, raise for the first time the contention that he is entitled to both salary and fees.
If the sheriff had refrained from taking his monthly salary on the ground that he was not willing to accept the same in lieu of fees, and had brought a suit to have it adjudicated that he was entitled to his salary without barring his right to the fees, would we have given him such an adjudication? Would we not have held that since the matter of salary is wholly within the control of the Legislature, a condition attached to the salary would follow the payment of the salary at least to the point of creating an estoppel?
It might not be good law to say that the offset is allowable because the salary was paid under a mistake on the part of the county as to its being in full settlement, for that might be a mistake of law or a unilateral mistake of fact, either of which views would prevent the mistake from having any legal effect. But that is an entirely different question from the question of estoppel upon which I would rely. *Page 274
Aside from the technical doctrine of estoppel, it is sound to treat the salary payments from the angle of payments on account of the legal compensation to which the sheriff is entitled by way of fees, etc. If the exemption of Clarendon County in the statutes providing for the payment of fees to the sheriff is unconstitutional, then both the salary provision and the exemption should be stricken out at one time because it was the obvious intention of the Legislature that the provision as to fees and the salary allowance should both stand. They are inseparably interwoven in the legislative doctrine. And when the pertinent provisions of the annual Appropriation Acts are thus eliminated, we have the simple case of payments received by the sheriff on account of his compensation which can have no other status than payments on account of the compensation to which the sheriff is legally entitled, to wit, the fees that are now in question.
I feel that on the above two grounds, the demurrer to the second defense should be overruled, as far as the salary items therein set forth are attempted to be off-set.
The above does not conflict with the holding in the Salleycases where this Court held that an officer could not be estopped from claiming the legal fees to which he was entitled.
MR. JUSTICE FISHBURNE and MR. ACTING ASSOCIATE JUSTICE WM. H. GRIMBALL concur.