Gaffneyv.Mallory et al

Supreme Court of South CarolinaMar 14, 1938
186 S.C. 337 (S.C. 1938)
186 S.C. 337195 S.E. 840

14641

March 14, 1938.

Before SEASE, J., Spartanburg, October, 1937. Affirmed.

Proceeding for a writ of mandamus by Dudley K. Gaffney against J.R. Mallory and others, as County Board of Spartanburg County, and others. Decree for petitioner, and defendants appeal.

Decree of Judge Sease follows:

The petitioner, Dudley K. Gaffney, brings this proceeding praying for a writ of mandamus to require J.R. Mallory, A.B. Taylor, and R.F. Bagwell, as members, and R.H. Ashmore, as clerk, of the County Board of Spartanburg County to issue him a salary warrant in the sum of $150.00, which petitioner alleges is due him for salary as magistrate for the month of July, 1937. The petitioner further seeks in this proceeding to require Paul M. Murph, as treasurer of Spartanburg County, to pay such warrant, when issued. Upon a rule to show cause, the matter came before me for hearing.

From the verified petition, the answer and return of the respondents and the testimony taken before me, the following facts appear:

The petitioner, on May 16, 1935, was duly appointed by the Governor, by and with the advice and consent of the Senate, to serve as a magistrate for Spartanburg County, in the City of Spartanburg. He qualified as magistrate under this appointment, and has since served continuously as magistrate. No successor has ever been appointed and the petitioner is now filling the office.

The county's fiscal year ends June 30th. The petitioner was paid his salary through the month of June, 1937. During the month of July, he collected in fines and costs $1,005.80, which he turned over to the county treasurer and which was placed by him in the general fund of the county. Within due time, the petitioner filed all reports required by statute and presented to the County Board his requisition for $150.00 to cover his salary claim for the month of July. The board refused to issue a warrant therefor.

In 1933, the General Assembly provided for eight magistrates in Spartanburg County, and fixed their salaries. Statutes at Large for 1933, Act May 16, 1933, 38 St. at Large, p. 479. The Act provided for two magistrates "at the City of Spartanburg" with a salary of $1,200.00, and they were referred to as "Spartanburg No. 1" and "Spartanburg No. 2."

The County Supply Acts for 1933 and 1934, Act May 16, 1933, 38 St. at Large, p. 479; Act April 16, 1934, 38 St. at Large, p. 2184, made provision for a $1,200.00 salary to be paid each magistrate, designating them as above.

In the County Supply Act for 1935, Act May 20, 1935, 39 St. at Large, p. 1109, there was provision for salaries for two magistrates in the City of Spartanburg, but the Act distinguishes between them by providing a salary of $1,800.00 for the "Magistrate at Court House" and a salary of $1,500.00 for magistrate "City of Spartanburg." See Statutes at Large for 1935, p. 1114.

The same distinction between the two magistrates appears in the County Supply Act for 1936, Act May 30, 1936, 39 St. at Large, p. 2615, the one at the courthouse being provided a salary of $1,800.00 and the other a salary of $1,650.00.

In the County Supply Act for 1937, Act May 27, 1937, 40 St. at Large, p. 1312, there is a provision for a salary of $1,800.00 for the magistrate "not located at Court House." The salary of the other magistrate is provided for, if at all, by the Supply Act, by Section 22, p. 1326, as follows: "If at any time after the pasasge of this Act there is appointed a Magistrate to serve at the Court House, the compensation for said Magistrate and a stenographer may be paid out of the delegation transferrable fund and, if not available out of this fund, then there is hereby appropriated, to be paid out of the general funds of Spartanburg County, the salaries of said Magistrate and the said Stenographer, but said salaries shall not be in excess of the salaries paid to the other Magistrate and the other stenographer in the city of Spartanburg."

At the end of the last fiscal year, the treasurer had a balance available for general county purposes of $85,786.63 which was brought over into the current fiscal year. This available balance as of July 31, 1937, was $49,181.80. As of October 15, 1937, the available balance was $107,613.05. The treasurer had borrowed $100,000.00 due January 5, 1938, in anticipation of the current year's tax collections.

To be entitled to a writ of mandamus to compel the payment of money, it must appear: (1) That the petitioner is the lawful incumbent of the office; (2) that there is a legal duty imposed on the respondents to pay the claim; (3) that the duty is ministerial; (4) that the petitioner has no other adequate remedy; (5) that there are funds in the treasury applicable to the payment of the claim. Chesterfield County v. State Highway Dept., 181 S.C. 323, 187 S.E., 548; Rouse v. Benton, 100 S.C. 150, 84 S.E., 533.

That the petitioner is and was during July, 1937, the lawful incumbent of the office of magistrate is clear. The term of magistrates is fixed both by the Constitution and statute as two years and until their successors are appointed and qualified. Article 5, Section 20, Constitution of 1895; Section 3707, Code of 1932. The office to which the petitioner was appointed is still in existence, and no successor has been appointed for him. The petitioner's title to the office, and his right to the emoluments thereof, are clear.

I likewise hold that there is a legal duty imposed upon the respondents to pay this claim. The office of magistrate is a constitutional one and the salary of magistrates is guaranteed by the Constitution in the following language: "Each Magistrate shall receive a salary, to be fixed by the General Assembly, in lieu of all fees in criminal cases." Article 5, Section 20, Constitution of 1895. In this connection, the language of the Supreme Court in Grimball v. Beattie, 174 S.C. 422, 177 S.E., 668, 671, is peculiarly apt: "It will be noted that the framers of our state Constitution used the words `Judges of the Circuit Court shall receive compensation for their services to be fixed by law, which shall not be increased or diminished during their continuance in office.' The words `to be fixed' themselves denote permanency. The words `shall receive' constitute words used in appropriating moneys. There is therefore great force in the reasoning of the Supreme Court of Oklahoma in the case of Riley v. Carter, to impel the conclusion that the provisions of section 9, art. 5, of our state Constitution, construed with the statutory provisions in the Code of Laws, 1932, constitute a constitutional appropriation of petitioner's salary in the amount of $7,500.00 per annum."

The petitioner's office was established by the General Assembly in 1933, and the salary fixed at $1,200.00 a year, payable monthly. Acts 1933, pp. 480, 481, § 3. This is a permanent continuing statute, which itself may constitute an appropriation. Grimball v. Beattie, supra; Dacus v. Johnston, 180 S.C. 329, 353, 185 S.E., 491; Smith v. Ashmore, 184 S.C. 316, 192 S.E., 565. The respondents' position that this statute, as to the salary provision, was repealed by the County Supply Act of 1935, which fixed a higher salary, is untenable. The Supply Act of that year had no force or effect beyond the fiscal year 1935, and its sole effect on the permanent statute of 1933 was to suspend, for the fiscal year 1935, only the salary provision of the statute. With the expiration of the 1935 Supply Act, the permanent statute of 1933 again became fully effective. Unless, therefore, the County Supply Act of 1937 changes the rate of the petitioner's salary, the permanent continuing statute of 1933, being unrepealed, gives the petitioner the right to be paid for July, 1937, at the rate of $1,200.00 a year. The effect of the 1937 Supply Act will be later discussed.

The petitioner has filed all reports and has paid over all fines and costs collected during July, 1937, to the county treasurer, as required by Sections 3723, 3725, 3729, Code of 1932. He is entitled to be paid his salary for that month.

The authorities are conclusive that mandamus is the appropriate remedy to compel the payment of a salary fixed by law. There is no other adequate remedy and the duty of issuing and paying a warrant for official salary is a purely ministerial one. State ex rel. Marshall v. Starling, 13 S.C. 262; Grimball v. Beattie, supra; Smith v. Ashmore, supra.

It is equally clear that there are available funds in the county treasury applicable to the payment of the petitioner's claim. It has been shown that there are funds in the treasury sufficient to pay the petitioner's claim, and the petitioner alleges that such funds are available to pay his claim. On the issue thus presented, the burden is on the respondents to show that payment of the claim out of the funds in the treasury would encroach upon a specific appropriation made for another purpose. Smith v. Ashmore, supra. The respondents have failed to sustain that burden of proof. The result compels a holding that there are funds in the treasury available for the payment of the claim.

It now remains to consider the amount of salary to which the petitioner is entitled for the month of July, 1937. At the time that the above-quoted section of the 1937 Supply Act was framed, there was pending in the General Assembly a Bill to abolish the office of magistrate at the courthouse in Spartanburg County, and that Bill had been passed by the Senate and was pending in the House, where it remained as unfinished business to the time of adjournment of the General Assembly. Furthermore, the two years for which the incumbent had been appointed had expired and he was holding over as magistrate at the courthouse for the reason that his successor had not been appointed.

Therefore, at the time that the County Supply Act was framed there was a possibility that at its passage there would exist no office of magistrate at the Spartanburg courthouse. There was also (1) the possibility that, after the abolishment of the office by the passage of that statute, it would be recreated by a new Act, and (2) the possibility that the office would not be abolished and that a successor to the incumbent would be appointed and would qualify. In either such event, it would be necessary to levy a tax to pay the salary under the mandate of Section 20, Article 5, of the State Constitution of 1895, quoted above.

The County Supply Act for 1937, as its title states, was an Act "relating to the fiscal affairs of Spartanburg County, making appropriations therefor and levying taxes for same." In the enacting clause it was provided "that a tax of twenty-eight and three-quarters (28 3/4) mills is hereby levied * * * for county and school purposes for the fiscal year beginning July 1, 1937, and ending June 30, 1938, for the amounts and purposes hereinafter mentioned."

Aside from the presumption that the General Assembly would have due and proper regard for the constitutional mandate, it is apparent that, in enacting the County Supply Act, it actually intended to perform its duty by making general provision for all the fiscal affairs of the county.

It is to be presumed that, in making such general provision, the General Assembly intended to levy taxes to provide salaries for the county offices then existing under the law.

At the time the Bill was framed, existing law provided for two magistrates in the City of Spartanburg. In framing the Supply Bill, both magistrates were had in mind. This is evident from the salary provision for the magistrate "not located at the court house," and from the provision for fuel, water and lights for "the city magistrate not located in court house," implying in each instance that there was a magistrate at the courthouse. "That which is clearly implied is as good as if expressed." State v. Columbia Railway, Gas Electric Co., 112 S.C. 528, 100 S.E., 355. It is evident also from Section 15 giving the Senator "full authority to designate constables for the magistrates in the City of Spartanburg."

Apparently the uncertainty engendered by the pending legislation to abolish the office of magistrate at the courthouse resulted in some uncertainty and ambiguity in the wording of the Supply Act providing a levy for his salary. Upon the surface, it appears that the General Assembly intended the 1937 levy to take care of the salary of the magistrate at the courthouse only in the event that "after the passage of this Act there is appointed a magistrate to serve at the court house." Such a construction of legislative intent would not be responsive to the duty of providing for the salary of the magistrate at the courthouse under the existing law. It would involve the assumption that the General Assembly did the futile thing of levying a tax to pay the salary of an office which did not exist while neglecting to levy to pay the salary of an office which did exist.

In Fulghum v. Bleakley, 177 S.C. 286, 181 S.E., 30, 32, the Court said: "It will be presumed, in construing a statute, that the General Assembly did not intend to do a futile thing."

Again, to limit the legislation to that surface appearance would suggest that the General Assembly was providing a salary for the benefit of the individual who might be appointed after the passage of the Act and not as an incident of the office itself and for the benefit of whoever might already lawfully hold the office. "It is a well-established principle that a salary pertaining to an office is an incident of the office itself, and not to * * * the individual discharging the duties of the office." 22 R.C. L., 525.

In Pickens v. Maxwell Bros. Quinn, 176 S.C. 404, 406, 180 S.E., 348, 349, it was said that "in the interpretation and construction of statutes, the primary rule is to ascertain and give effect to the intention of the Legislature. As has frequently been stated in effect, the intention of the Legislature constitutes the law. All rules for the interpretation and construction of statutes of doubtful meaning have for their sole object the discovery of the legislative intent, and they are valuable only in so far as, in their application, they enable us the better to ascertain and give effect to that intent."

Again in Fulghum v. Bleakley, supra, the Court quoted from State ex rel. Walker v. Sawyer, 104 S.C. 342, 88 S.E., 894, 895, as follows: "While it is an elementary rule of construction that words used in a statute should be given their plain and ordinary meaning, this, as all other rules, is subject to the prime object of ascertaining and giving effect to the legislative intention. In doing this, we are not to be governed by the apparent meaning of words found in one clause, sentence, or part of the act, but by a consideration of the whole act, read in the light of the conditions and circumstances as we may judicially know they appeared to the Legislature, and the purpose sought to be accomplished."

In City of Spartanburg v. Leonard, 180 S.C. 491, 186 S.E., 395, 397, the Court said: "The supplying of a word unintentionally omitted in a statute, in order to give effect to the purpose of the Legislature, is entirely legitimate."

There can be no doubt that it was the purpose of the Legislature, as expressed in the title and enacting clause, to make provision for all of the fiscal affairs of the county for 1937. By the omission of some word or words, there is an appearance of having provided a salary for an actually existing office, as if the office did not then exist. I think the Court has full power to construe the statute in the light of the existing circumstances and conditions. There is ample authority to that effect. State v. Kizer, 164 S.C. 383, 162 S.E., 444, 81 A.L.R., 722; Warr v. Darlington County, 181 S.C. 254, 186 S.E., 920.

The difficulties of construction disappear when it is had in mind that the Legislature was making a levy to provide a salary for an office that was in existence but possibly on the verge of abolishment. Having in mind the uncertainty consequent upon that threat, it seems clear that the General Assembly intended to provide in the Supply Bill that the levy should take care of the salary in any event, whether the existing office continued, or be abolished and be thereafter recreated.

The apparent uncertainty as to the amount appropriated is removed by the history of salary increases since 1933. In that and the following year each of the two magistrates in the city received the $1,200.00, fixed by the Act of 1933.

In 1935 and 1936, each of them received an increased salary, the magistrate at the courthouse receiving a salary in excess of that received by the other magistrate.

If after providing for a salary of $1,800.00 for the magistrate "not at the court house" in the 1937 Supply Act, it was the intention of the Legislature that the magistrate at the courthouse should receive the salary of $1,200.00 fixed by the continuing permanent statute of 1933, it would have been useless to provide that his salary should not be in excess of the salary paid to the other magistrate. It must be presumed that the Legislature meant to fix the amount it was at the moment appropriating, rather than that the Legislature intended to make an appropriation of an amount not determinable from the words being used.

It seems to me that the intent was to put the two magistrates on an equal basis, as had been originally contemplated by the statute of 1933, and to do away with the inequality that had existed in 1935 and 1936. Each would thereby receive the same salary. The magistrate at the courthouse would occupy public quarters at no expense to himself, and the other, a practicing attorney, would have his fuel, water, and lights provided.

Consequently, I think the Legislature meant to provide that "said salary shall be equal with but not be in excess of the salary paid to the other magistrate." I so construe the statute.

It would follow that the only legislative intent deducible from the entire Supply Act, in harmony with its purpose and with all of its provisions, is that the appropriation made by Section 22 was to be effective in any event to provide for the magistrate at the courthouse a salary equal to that of the other magistrate. Some rearrangement of its clauses, under authority of Dunbar v. Fant, 170 S.C. 414, 170 S.E., 460, 90 A.L.R., 1412, will serve to make this clearer, keeping in mind that the primary purpose being executed by the Legislature was to make the appropriations for which the tax was being levied, inserting what is clearly implied, and putting in the form of provisos all uses the nature of which is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation, which is the office of a proviso. 25 R.C.L., 984, 985. The matter in parenthesis is supplied as necessarily implied.

"There is hereby appropriated, to be paid out of the general funds of Spartanburg County the salary of the magistrate to serve at the Court House;

"Provided, that the said salary may be paid out of the delegation transferrable fund, if available;

"Provided, further, that said salary shall (be equal with but) not be in excess of the salary paid to the other magistrate in the City of Spartanburg;

"Provided, further, that (this section shall remain effective), if at any time after the passage of this Act (the present office be abolished and thereafter the office is recreated and) there is appointed a magistrate to serve at the Court House."

In view of the foregoing, I am of the opinion that the petitioner is entitled to be paid salary for July, 1937, at the rate of $150.00 a month.

My views being as above expressed, it is my opinion that the petitioner is entitled to the relief prayed for, and it is so ordered.

It is further ordered, adjudged, and decreed that the return and answer of the respondents be, and the same hereby is, held insufficient, as showing no legal cause why the relief prayed for in the petition should not be granted.

Let the writ of mandamus issue, and further orders may be taken if it is necessary to carry into effect the judgment herein announced.

It is therefore ordered, adjudged, and decreed that the respondents, J.R. Mallory, A.B. Taylor and R.F. Bagwell, as members, and R.H. Ashmore, as clerk, of the County Board of Spartanburg County, do issue their warrant in favor of the petitioner, Dudley K. Gaffney, for $150.00 for salary due him as magistrate for the month of July, 1937; and that the respondent, Paul M. Murph, as treasurer of Spartanburg County, do pay said warrant upon presentation.

Mr. Donald Russell, for appellants, cites: As to permanent continuing statute: 174 S.C. 422; 177 S.E., 668; 80 S.C. 443; 61 S.E., 946.

Messrs. Carlisle, Brown Carlisle and Evans, Galbraith Holcombe, for respondent, cite: Decree may be modified without vitiating in toto: 117 S.C. 1; 108 S.E., 181; 171 S.C. 123; 171 S.E., 617; 176 S.C. 303; 180 S.E., 204. Construction of statutes: 174 S.C. 422; 177 S.E., 668; 180 S.C. 329; 185 S.E., 490; 184 S.C. 316; 192 S.E., 565; 80 S.C. 443; 61 S.E., 946; 150 U.S. 588; 118 U.S. 389; 68 S.C. 411; 47 S.E., 978; 41 S.C. 501; 19 S.E., 745; 193 S.E., 651; 112 S.C. 528; 100 S.E., 355; 177 S.C. 286; 181 S.E., 30; 22 R.C.L., 525; 176 S.C. 404; 180 S.E., 348; 104 S.C. 342; 88 S.E., 894; 10 S.C. 491; 186 S.E., 395; 164 S.C. 383; 162 S.E., 444; 81 A.L.R., 722; 181 S.C. 254; 186 S.E., 920; 23 F., 101; 81 S.C. 7; 61 S.E., 1028; 170 S.C. 414; 170 S.E., 460; 90 A.L.R., 1412; 25 R.C.L., 984. Legislative intent to govern: 166 S.C. 177; 164 S.E., 588; 286 U.S. 472; 76 L.Ed., 1232; 84 A.L.R., 831; 25 R.C.L., 808; 129 S.C. 480; 124 S.E., 761. Mandamus: 173 S.C. 387; 176 S.E., 325; 95 A.L.R., 545; 184 S.C. 316; 192 S.E., 565.




March 14, 1938. The opinion of the Court was delivered by


We think the fallacy of the appellants' contention lies in the assumption that the Legislature intended to repeal the Act of 1933, by which the office of magistrate "at the court house" in Spartanburg was created, and therefore made no provision, in the County Supply Act for 1937, for the payment of his salary. This position is untenable. It appears from the record that a Bill had passed the Senate to abolish the office of magistrate with office at the courthouse; but it also appears that the Bill never passed the House, and never became effective. Moreover, the Supply Act contains this provision: "If at any time after the passage of this Act there is appointed a Magistrate to serve at the court house, the compensation for said magistrate and a stenographer may be paid out of the delegation transferrable fund and, if not available out of this fund, then there is hereby appropriated, to be paid out of the general funds of Spartanburg County, the salaries of said magistrate and the said stenographer, but said salaries shall not be in excess of the salaries paid to the other magistrate and the other stenographer in the City of Spartanburg." Act May 27, 1932, § 22, 40 St. at Large, p. 1326.

It is impossible in the light of this record to say that it was the intention of the Legislature to abolish the office of magistrate with office at the courthouse, and that therefore no provision was made in the County Supply Act for the payment of his salary.

We think the evidence shows that there were funds applicable to the payment of the magistrate's salary, herein contended for, in the light of the quoted provision of the County Supply Act for 1937.

The decree of Judge Sease is satisfactory to the Court, and is affirmed. Let it be reported.

MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE WM. H. GRIMBALL concur.

MR. CHIEF JUSTICE STABLER and MR. JUSTICE CARTER did not participate on account of illness.