Opinion
14023
March 22, 1935.
Before GREENE, J., Horry, November, 1933. Affirmed.
Action by John Holt, individually, and as Clerk of the Court of Common Pleas and General Sessions, and acting recorder of registrar of mesne conveyance of Horry County, against James A. Calhoun, Jr., as treasurer of Horry County, and others. From a judgment for plaintiff, defendants appeal.
Decree of Judge Greene and exceptions directed to be reported follow:
This is a proceeding on the part of the plaintiff as Clerk of Court for Horry County to obtain an adjudication of the Court that an Act of the 1932 Legislature (27 St. at Large, page 1381), undertaking to fix the emoluments of his office, and provide a system of accounting, is unconstitutional. The complaint charged that the plaintiff was elected for a term of four years at the general election held in November, 1932; that under the general laws of the State of South Carolina governing at the time of his election the plaintiff was and is entitled to the payment of various specified fees in connection with the performance by him of the various duties imposed by law upon him; and that under an Act passed by the Legislature of South Carolina and approved by the Governor under date of April 4, A.D. 1932, and limited to the compensation of officers of Horry County, all fees and licenses collected by the plaintiff are required to be turned over to the County Treasurer, and that in lieu of the retention of such fees and licenses, the plaintiff shall be paid a salary specified in the Act, for which an annual appropriation is required to be made. Provision is also made in the Act for the establishment of a County Board of Commissioners and County Road Commissioner for Horry County, and the proposed salaries of all officers of Horry County are fixed by the Act.
In the complaint the validity of the Act is challenged on the ground that it violates the terms of Article 3, Section 34, of the Constitution of South Carolina, which in subdivisions 8, 9, and 10 prohibits the enactment of local or special laws (Sub-division 8) to fix the amount or manner of compensation to be paid any county officer, except that the laws may be so made as to grade the compensation in proportion to the population and necessary service required; (Sub-division 9); and in all cases not covered by the exceptions in Section 34, where a general law can be made applicable; and (Sub-section 10) "Provided, That nothing contained in this Section shall prohibit the General Assembly from enacting special provisions in general laws."
The complaint makes no attack upon Section 1, 2, 3, and 4 of the Act, but especially directs the attention of the Court to Section 5 purporting to fix the salaries of the county officers and to Section 6 which requires the Clerk of Court and other county officials to turn over to the County Treasurer to be placed in the general funds of the county all of the fees and licenses collected by such officers.
Only Sections 5 and 6 of the Act relate in any way to the plaintiff's office.
The complaint contains appropriate allegations to bring the matter within the equity jurisdiction of the Court and concludes with a prayer for an injunction and other incidental relief.
Upon this complaint, which was duly verified, this Court granted a temporary restraining order under date of the ____ day of October, A.D. 1933, and required the defendants to show cause before the Court on the 2d day of November, A.D., 1933, why an injunction should not be granted in accordance with the prayer of the complaint.
The defendants served a return to the rule to show cause and also a notice of motion to strike out portions of the complaint and answer. The plaintiff demurred to the defendants' answer. Upon motion of defendants' counsel the case was continued on the return date of the rule in order that more time might be given the defendants to prepare their showing. Thereafter upon the call of the rule as well as of the demurrer, for a hearing, the plaintiff and defendants presented a statement of the facts of the case duly signed by counsel for both plaintiff and defendants, in which the facts and issues to be tried by the Court were agreed upon. Upon counsel having agreed upon the issues to be decided by the Court, it appears to the Court that the preliminary motions which had been served were withdrawn.
In their answer and return the defendants deny that the Act of 1932 in question is unconstitutional; they also deny that the Act requiring the Clerk of Court to pay over to the treasurer of Horry County all fees and licenses collected by him is in contravention of any article or section of the Constitution of the State of South Carolina. It is alleged in the answer and return that the passing of the said Act by the General Assembly was an exercise of legislative authority not forbidden by the Constitution and that it is of full binding force and effect, and further that the action as brought is not the proper remedy to determine the validity or invalidity of the statute in question, and that no injunction or restraining order should be issued unless and until the said statute be adjudged by the Court to be unconstitutional, or otherwise void. The answer specifically alleges that the Act in question is a proper amendment of the general law and is constitutional.
The plaintiff by way of reply to the return and answer of the defendants has demurred to the same on the ground that the same fails to set forth a defense to the action set out in the complaint for the reason that the defense is founded upon a denial of the unconstitutionality of the legislation of 1932, whereas it is alleged and it appears upon the face of the complaint and the answer that such legislation is unconstitutional on the grounds set forth in the complaint and appearing in the answer, and, secondly, because the answer does not set forth any facts sufficient to constitute a defense on the part of the defendants against the plaintiff's cause of action.
The agreed statement of facts admits that the plaintiff is the duly qualified Clerk of Court of Common Pleas and General Sessions of Horry County and that under the law he performs the duties of registrar of mesne conveyance; that prior to the passing of the Act of 1932 the plaintiff was entitled to receive the fees in question as a part of his compensation for the duties performed by him; that the purpose of the action is to determine whether or not those parts of the Act referred to are constitutional and with especial reference to Section 6 of the 1932 Act.
In the agreed statement of facts the County Board of Commissioners desires and requests that the validity of Sub-division (Section) 6 of the Act be passed upon by the Court specifically with reference to all officers of Horry County therein sought to be affected as to said fees and their compensation, and requests that it be determined by the Court what officers of the county referred to in said Act, if any, are entitled to retain fees therein referred to, and also what fees, if any.
The case was fully argued by counsel for both sides on the merits, and has been so considered by me, because it is obvious that the only relief that can be granted under the order nisi must be founded upon the unconstitutionality of the said Act, which is the primary question in the case. I have accordingly given the matter very careful consideration, both because of the reluctance which every Court must feel when called upon to declare unconstitutional an Act of the Legislature, and also because the ruling now made will for all practical purpose of the case as far as this Court is concerned. The said Act No. 794 of 1932 appears clearly to be a local and special Act relating to the county government and compensation to be paid to county officers of Horry County only.
With respect to the validity of the Act of 1932, which Act by its terms undertakes to fix the salary of the Clerk of Court for Horry County, it does not seem open to serious question that the Act violates the provisions of Section 34 of Article 3 of the Constitution, Sub-divisions 8 and 9, as those provisions have been construed by our Supreme Court in the cases of State ex rel. Pearman v. King, 108 S.C. 339, 94 S.E., 866; State ex rel. Schroder v. Burns, 73 S.C. 194, 52 S.E., 960; Nance v. Anderson County, 60 S.C. 501, 39 S.E., 5; Dean v. Spartanburg County, 59 S.C. 110, 57 S.E., 226; DeHay v. Commissioners of Berkeley County, 66 S.C. 229, 44 S.E., 790; Gillespie v. Blackwell, 164 S.C. 115, 161 S.E., 869.
In the light of these decisions, it does not seem to me that the question of the constitutionality of the Act can be seriously debated. Unless, however, the principles of construction as declared by the Supreme Court in the above-mentioned cases as applicable to the constitutional provision under which the Act in question is challenged in this case are to be disregarded, and such cases as State ex rel. Pearman v. King, supra, are expressly overruled, I cannot see how any other conclusion can be arrived at than contended for by the plaintiff.
The defendants' contention that the Act can be sustained as an amendment to the general law cannot be sustained in view of the holding of the Court in the case of Dellay v. Commissioners of Berkeley County, supra. A reading of the Act clearly shows that it is in itself a local or special statute and is a special local provision on a prohibited subject.
For the above reasons, I am constrained to hold that the Act of 1932 above referred to is unconstitutional, and, of course, the same considerations that lead to this conclusion likewise nullify those provisions of the 1932 and 1933 supply Bill for Horry County, as set forth in the complaint, in which it is attempted to carry into effect the provisions of the above-mentioned Act of 1932. And on these grounds the return and answer of the defendants must be held insufficient, and the demurrer of the plaintiff thereto sustained.
The Court would be glad to pass upon the rights of the county commissioners in relation to other officers of Horry County if such were permitted under recognized rules of procedure. The Clerk of Court is the only officer who is a party to the suit, whose fees are affected by that part of the Act which is herein held to be unconstitutional. The Court therefore has no jurisdiction to pass upon the rights of other officers of the county not parties to the suit.
My views being as above expressed, and counsel appearing to be in accord that my ruling in this cause shall be decisive of the material issues presented by the pleadings, it is ordered and adjudged that the return and answer of the defendants be, and the same hereby is, held insufficient, and as showing no legal cause why the relief prayed for in the complaint should not be granted.
Further ordered and adjudged that the plaintiff's demurrer to the defendants' answer and return be and the same hereby is sustained.
Further ordered and adjudged that Section 6 of Act No. 794 of the Act of the Legislature approved April 4, A.D., 1932, or such other parts of said Act as attempt to change the amount or manner of plaintiff's compensation, referred to in the pleadings in this cause, be and the same hereby are declared unconstitutional, and of no force or effect, and that the defendants, their servants and agents, and all other persons whomsoever, be and they are hereby restrained and enjoined from taking any action or bringing any proceeding at law or in equity against the plaintiff under or by virtue of the terms thereof. No part of the said Act of 1932 above referred to shall be taken to be in anywise affected by this order, or to be in any respect involved in the present litigation except that which involves the compensation of the Clerk of Court.
EXCEPTIONS1. His Honor erred, it is respectfully submitted, in holding that the statute in question is unconstitutional and, therefore, void and that the Clerk of Court of Horry County is entitled to retain the fees and licenses of his office, for and in that the said statute is a special provision of a general law, not local and special legislation, and the Court should have so held.
2. His Honor erred, it is respectfully submitted, in holding that the statute in question is attempted legislation on a subject prohibited by the Constitution, whereas he should have held that the statute is only a special provision in a general law, on a subject within the power of the Legislature to regulate, and does not disturb the general scheme of compensation for county Clerks of Court of the State.
3. His Honor erred, it is respectfully submitted, in not holding that, if Section 6 of the said Act is unconstitutional and, therefore, void and the fees and licenses therein required to be turned over by the said Clerk of Court to the Treasurer of Horry County for general county purposes are to be retained by the said Clerk of Court as compensation, then, and in that event, the whole Act is null and void and the said Clerk of Court is not entitled to receive any salary or other compensation provided in said Act, the error being that he is not entitled to receive the fees and licenses of the office and also the salary that is provided in lieu thereof.
4. His Honor erred, it is respectfully submitted, in holding that the said Clerk of Court is entitled to retain the fees and licenses of his office, even though the said statute is invalid, whereas he should have held that the said Act was passed and approved by the Governor prior to the time of the election of the said Clerk of Court, and his election to the office after the passage of the Act, with full knowledge on his part and on the part of the citizens, taxpayers, and voters of Horry County, is tantamount to a contract between him and the said citizens, taxpayers, and voters that he would and did accept the office at the compensation provided in the Act, that he would turn over to Horry County for general county purposes all the fees and licenses and other emoluments of the office as provided by the terms thereof, that he thereby waived and surrendered any rights he may have had to retain said fees and licenses as compensation, and his election became and is a solemn and binding obligation upon him to be governed by the provisions of the said Act, without regard to its validity or invalidity.
5. His Honor erred, it is respectfully submitted, in not holding that, even if the Act in question is unconstitutional and therefore invalid, the said Clerk of Court of Horry County offered himself as a candidate for the office in question and was elected to said office by the voters of Horry County long after the passage of the said Act by the Legislature and long after it had been followed and executed by all the officers of Horry County as valid and binding, that he and the voting public at all times had full knowledge of the Act, with its high presumption of validity, that he is now bound by its terms as a contract made by and between him and the voting public to abide thereby, and he is not entitled to retain the fees and licenses of the office, but only to receive the compensation therein provided as salary in lieu thereof, and that he is now estopped to claim the fees and licenses or any compensation other than that provided by the terms of the Act.
6. His Honor erred, it is respectfully submitted, in not holding that, although the Act in question may be unconstitutional and void, notwithstanding, the Clerk of Court for Horry County, having been elected to office long after the passage of the Act, it is contrary to public policy to allow him to become a candidate for the office and receive the approbation of the voting public by election, and, after election, repudiate the terms of the Act, presumably valid, without previous notice to the voters of an intention so to do, the error being that the said Clerk of Court cannot, in all equity and good conscience laid down by the law of public policy, remain silent until after the election and then increase his compensation by an act of his own over which the public then has no control.
7. His Honor erred, it is respectfully submitted, in restraining and enjoining the defendants and those acting under them from proceeding against the plaintiff under said Act, the error being that the same is valid and binding and they should be allowed to proceed with its execution.
Mr. E.S.C. Baker, for appellants, cites: Construction of statute: 61 S.C. 205; 161 S.E., 869; 66 S.C. 229.
Mr. W. Kenneth Suggs, for respondent, cites: Unconstitutionality of Act: 108 S.C. 339; 94 S.E., 866; 61 S.C. 205; 73 S.C. 194; 52 S.E., 960; 62 S.C. 247; 40 S.E., 553; 51 S.C. 51; 28 S.E., 15; 38 L.R.A., 561; 59 S.C. 110; 60 S.C. 501.
March 22, 1935.
The opinion of the Court was delivered by
This action, as appears from the transcript of record, was commenced by the service of the summons and complaint on or about the 17th day of October, 1933, by which the plaintiff-respondent assails the constitutionality of certain parts of that certain Act passed by the Legislature at its regular 1932 session, approved on the 4th day of April, 1932 (27 St. at Large, p. 1381). He also complains that the provisions of the Horry County 1932 and 1933 supply Bills, which attempt to carry out the certain specified parts of the 1932 Act, are invalid. The complaint alleges that the Act provides that all fees and licenses collected under the provisions of law by the Clerk of Court for Horry County shall be paid over to the County Treasurer to be placed in the general county funds of the county, and further provides a stated salary in lieu of said fees and licenses. It is also alleged in the complaint that the Act is unconstitutional for that it is local and special legislation and seeks to take away from the Clerk of Court the fees and licenses allowed him by the general law of the State as a part of his compensation; and it is prayed that the statute, so far as it attempts to deprive him of the fees of his office, be declared unconstitutional and the plaintiff-respondent be adjudged entitled to retain said fees and licenses. Plaintiff-respondent was elected Clerk of Court for Horry County prior to the passage of the Act in question and still is in said position.
The defendants answer, denying generally the material allegations of the complaint, and denying specifically that the said Act is invalid and further denying specifically that the plaintiff-respondent is entitled to the fees and licenses of his office.
The plaintiff-respondent interposed a demurrer to the answer on the grounds that the same does not state facts sufficient to constitute a defense.
The issues therefore raised by the pleadings are, first, the validity of that part of the Act which deprives the plaintiff of the fees of his office, and, secondly, whether the plaintiff-respondent, as Clerk of Court for Horry County, is entitled to retain the fees and licenses of his office as compensation for services rendered by him.
A statement of facts was then agreed upon and submitted to the Court upon the trial of the issues of law.
The case was tried at the fall 1933 term of the Court of Common Pleas for Horry County, by the presiding Judge, his Honor, Judge G.B. Greene, who thereafter rendered his decree, which is set out in full in the case, in which he held the Act unconstitutional and void so far as it attempts to deprive the plaintiff of the fees of his office, and further held that plaintiff-respondent is entitled to retain the fees and licenses of his office as part of his compensation.
From this decree, notice of appeal was timely given and the case now comes before this Court on the exceptions set out in the record.
The following agreed statement of facts is set out in the record:
"The plaintiff and defendants above named, by and though their attorneys herein, agree that the following are the facts involved in this action:
"John Holt, the plaintiff, is the Clerk of Court of Common Pleas and General Sessions of Horry County, and since the office of Registrar of Mesne Conveyance does not exist in said County, the duties which would devolve upon such officer are performed by him as such Clerk of Court.
"The action is brought by the plaintiff against the defendants for the purpose of determining whether the plaintiff is entitled to retain the fees collected by him as Clerk of Court and recording officer for Horry County, or whether the County is entitled to have said fees paid over to its Treasurer for General County purposes.
"'An Act was passed by the General Assembly of South Carolina at its 1932 session, known as Act No. 794 of the Acts of 1932, which is entitled:
"'An Act Relating to the County Government of Horry County, Fixing the Number of Commissioners, Their Salaries and Duties, and the Salaries of Certain Other County Officers, and Providing for the Appointment of Commissioners, and Providing for the Appointment of a Road Commissioner and Defining His Duties.'
"Prior to the passage of said 1932 Act, except as the same was changed by the Horry County Supply Acts, intended to be effective, severally, only for the years they were enacted by the Legislature, the compensation of the Clerk of Court and recording Officer for Horry County was provided and regulated by a general law applicable to all Clerks of Court of this State.
"The primary purpose of the action is to determine whether or not certain parts of the above referred to Act are constitutional. The complaint specifically alleges that subdivision 6 thereof, contained at page 1384 of the Statutes at Large of South Carolina, Acts of 1932, is unconstitutional and that the plaintiff is entitled to retain all of said fees therein required to be turned over by him to the County for its use.
"The defendants, other than the County Treasurer, are the governing body of Horry County; and since the constitutionality of subdivision 6 of the said Act has been made an issue in this case by the plaintiff, the defendant County Board of Commissioners desire to have the validity of said subdivision 6 of the Act passed upon by the Court specifically with reference to all the officers for Horry County therein sought to be affected as to said fees and their compensation, and desire that it be determined by the Court what officers of their County referred to in said Act, if any, are entitled to retain fees therein referred to, and also what fees, if any.
"The decision of the Court affecting these additional officers is sought by the County Commissioners in order to avoid a probable multiplicity of actions, and it is agreed that the constitutionality of that part of the Act relating to these additional officers shall be also determined by the Court in this action."
This Court is satisfied with the holding and conclusion of the trial Judge, as set forth in his Honor's decree. It is, therefore, the judgment of this Court that the judgment of the lower Court be and is hereby affirmed.
NOTE: Let the decree of the Circuit Judge and appellants' exceptions be incorporated in the report of the case.
MESSRS. JUSTICES STABLER and BONHAM and MESSRS. ACTING ASSOCIATE JUSTICES G. DEWEY OXNER and A.L. GASTON concur.