Opinion
14525
August 5, 1937.
Before PLYLER, J., County Court, Greenville, March, 1937. Affirmed, and case remanded, with directions.
Proceeding in mandamus by R.N. Smith against John P. Ashmore, as Supervisor of Greenville County, and others. Decree for the petitioner, and defendants appeal.
The decree of Judge Plyler follows:
The petitioner, Robert N. Smith, brings this proceeding praying for a writ of mandamus to require John P. Ashmore, as Supervisor of Greenville County, and C.O. Milford, L.H. Stringer, and R.W. Arrington, as the County Board of Commissioners of Greenville County, to issue him a salary warrant, or warrants, in the sum of $2,265.58, which petitioner alleges is the unpaid balance of his salary as treasurer of Greenville County from July 1, 1931, through December, 1936. Petitioner asks judgment that the treasurer of Greenville County be required by order of this Court to pay such warrant or warrants, when so issued.
A study of the verified petition and answer and return on behalf of the respondents discloses the following undisputed facts: That the petitioner, Robert N. Smith, has been the duly elected and qualified treasurer of Greenville County since the 1st day of July, 1931. That in the year 1929 there was passed and enacted a general statute fixing the salary of the treasurer of Greenville County at $4,500.00 per annum, the statute providing that the State shall pay two-thirds of the salary, and the county shall pay one-third thereof. The said general statute was codified in the Code of 1932 as Section 2700; this section is as follows: "The salaries of county auditors and county treasurers in South Carolina shall be as follows: Class A. Charleston, Greenville, Richland, Auditors, $4,500.00; Treasurers, $4,500.00. * * * One-third (1/3) of the amounts shall be paid by the county and the remaining two-thirds (2/3) of the salaries herein provided for shall be paid by the State of South Carolina. There is hereby appropriated from the receipts of the property tax of South Carolina a sum sufficient to pay the State's portion of the salaries as above defined and the Comptroller General is hereby authorized, empowered and directed to pay the portion of the State from the receipts from the property tax."
That before the rule to show cause was issued herein a county salary warrant in the sum of $2,265.58 duly verified by petitioner was presented to the respondents claiming this sum to be the balance due by the county on his salary from July 1, 1931, through December, 1936, as fixed by Section 2700 of the 1932 Code of Laws of South Carolina. The respondents did not sign said salary warrant, but turned the same over to the county attorney. There is no dispute that the amount claimed in the salary warrant represents the difference between what was actually paid petitioner by the county and the amount to be paid by the county as fixed by Section 2700. It is admitted by the parties that there are sufficient funds in the treasury to pay petitioner's claim; the contention of the respondents being that there are no funds applicable to this claim, or funds out of which it can be paid.
Generally speaking, the gist of petitioner's petition and the cardinal issue raised thereby is that, since the 1st day of July, 1931, through December, 1936, the amount of salary to be paid by Greenville County to petitioner as county treasurer has been fixed and governed by Section 2700 of the 1932 Code, and there has been no legal or valid change of his salary from that as fixed under the general law.
The first vital legal question raised by the petition is: What was the salary of the petitioner during the time above mentioned?
Petitioner's contention is that Section 2700 of the 1932 Code has been of full force and effect so far as petitioner's claim is concerned from the time of its enactment in the year 1929 through the time covered by petitioner's claim.
Section 2700 of the 1932 Code was passed and enacted in 1929, and remained in its original form until April 17, 1933, at which time there was an amendment as to Oconee and Saluda counties (Act, April 17, 1933, 38 St. at Large, p. 290) and a re-enactment as to Greenville County, which continued the salary of the treasurer and auditor at $4,500.00 per annum (one-third to be paid by Greenville County).
It is to be noted that the respondents in their return and answer do not set up any specific amendment of Section 2700 or any specific repeal of the section other than set out above. Nor did they make any such contention in their argument before me. This was necessarily so, because a review of the statutes does not reveal any specific amendment or repeal other than the amendment of 1933 as to Oconee and Saluda counties. Therefore, in the premises it must be conceded that since the enactment of Section 2700 the salaries of county treasurers and auditors have been fixed and covered by a general law. If petitioner's salary has been fixed by a general law at $4,500.00 (one-third to be paid by the county), it is axiomatic that petitioner's salary is that fixed by the general law, unless there has been a valid and constitutional change in the general law. It has been conceded that there has been no change in petitioner's salary from that as fixed under the general law by specific amendment or repeal of said law; therefore, the only other possible way the petitioner's salary could be changed from that fixed by Section 2700 is by the county and State appropriation acts for each year. In this connection, it is to be observed that the respondents do not in their return and answer set up the various appropriation acts as being a valid change of the salary of the petitioner from that fixed under the general law. Nor did they in their argument before me contend that the various county and State appropriation acts constitute a valid and constitutional change in petitioner's salary. But the petitioner attacks all the county and State appropriation acts in so far as they attempt to reduce petitioner's salary, upon the grounds that they violate the following constitutional provisions: "Article 3, Section 34, sub-division 9 which prohibits local or special laws where a general law can be made applicable; and Article 3, Section 17, which says: Every Act or Resolution having the force of law shall relate to but one subject, and that shall be expressed in the title."
The petitioner further attacks the various State appropriation acts on the ground that they reduce the State's portion of the salary but do not attempt to reduce the county's portion.
Having reached the conclusion that petitioner is entitled to the balance of his salary as set forth in his petition, the next question raised is: Is the petitioner entitled to the relief and judgment asked for in his petition?
With practical uniformity the Courts have held that mandamus is the proper remedy to enforce the payment of the salary of a public officer, when the salary is fixed by law. The above principle is so well established that citation of authority is not necessary, but, in view of certain defenses and contentions urged by respondents, I will refer briefly to some of the authorities on this question:
In 18 R.C.L., at page 221, we find: "It is generally recognized that Mandamus is a proper remedy to enforce the payment of the salary of Public Officers definitely fixed by law."
The general principle is also stated in 38 C.J., 716, as follows: "Mandamus is the proper remedy to compel the issuance of a salary warrant, or to compel the payment thereof when the salary is fixed by law."
In the case of Walpole v. Wall, 153 S.C. 106, 149 S.E., 760, 762, our Supreme Court said:
"It is well settled that a writ of mandamus will issue to require an officer to perform a plain ministerial duty. The petitioner is a teacher in a high school, and the salaries of teachers in high schools are fixed by law. Section 2732, Vol. 3, Code of 1922. 'A salary fixed by law need not be audited.'
"There is no discretion to be exercised, but the salary must be paid.
" State ex rel. Marshall v. Starling, 13 S.C. 262.
"When payment of salary is refused, remedy by writ of mandamus is appropriate."
With uniformity, our Supreme Court has held a writ of mandamus is the proper remedy to enforce the payment of the salary of public officers when the salary is fixed by a permanent continuing statute.
See the following cases: State ex rel. Marshall v. Starling, 13 S.C. 262; Richland County v. Miller, 16 S.C. 244, 252; Pressley v. Nunnery, 169 S.C. 509, 169 S.E., 413; Grimball v. Beattie, 174 S.C. 422, 177 S.E., 668, 673.
A number of other cases from this and other jurisdictions might be cited, but I consider it unnecessary to do so.
The respondents in their return and answer attack the right of the petitioner to the relief and judgment asked for in his petition upon various grounds. The return and answer sets up fifteen separately numbered defenses, and would apparently cover a wide sphere; but fortunately upon a close observation and analysis the issues raised do not cover as wide a sphere as the return and answer would indicate. In this connection it is to be noted and observed that none of the defenses, with the exception of the first, traverse the material allegations of the petition and, in so far as those defenses are concerned, the allegations of the petition are admitted, and the defense is pleaded by way of confession and avoidance. Generally speaking, many of the defenses by way of avoidance are based upon conclusions of law which do not set forth any facts upon which the conclusions are based, and, for this reason, are not sufficient to raise any issue. Also, some of the defenses are based entirely upon information and belief, without stating any specific facts or giving the source of the information and belief; and for this reason, generally speaking, as applied to a mandamus proceeding, are insufficient to raise an issue. But I have disregarded these objections and have given due consideration to all the defenses.
The petitioner interposed a demurrer to the return and answer, and also interposed a motion to strike out the return and answer on the ground that the same was sham and frivolous. The petitioner also filed a reply controverting various contentions of the respondents.
It is a satisfaction to this Court to know that our own Supreme Court has heretofore passed upon most, if not all, of the questions raised by the pleadings.
The various issues arising upon the law and merits have been fully argued before me by counsel for both sides. The case is of considerable importance, and I have given it serious study; and, upon a full consideration of the entire matter, I am of the opinion that the petitioner is entitled to the relief and judgment asked for, and that the return and answer as a matter of law and fact is insufficient to deny the petitioner the relief prayed for in his petition.
I now refer briefly to each of the defenses and in the order stated, and give my views as to why they cannot be sustained.
As to the first defense: Under this defense the material allegations of Paragraph 1 of the petition are admitted; Paragraph 2 of the petition is admitted; Paragraph 3 of the petition is denied, which is only a denial that the salary of petitioner was fixed at $4,500.00 per year, and thereby raises a question of law which has been decided in favor of petitioner. Paragraph 4 is denied, which is a denial that the county was obligated to pay petitioner $1,500.00 per year, and thereby raises a question of law which has been decided in favor of petitioner. Paragraph 5 was denied, which amounted to a denial that the county had failed to pay its share of petitioner's salary, and thereby raises a question of law which has been decided in petitioner's favor; in this connection the various monthly warrants were introduced in evidence, and no contention was made that the amounts set forth in Paragraph 5 of the petition were not correct. So much of Paragraph 6 of the petition as alleges that a county warrant duly verified by petitioner for the amount still due him as salary was presented to respondents was admitted, the remaining part of the paragraph as to the refusal of the respondents to sign and issue same is denied; this denial does not raise any issue, for the reason that it is self-evident that the warrant was not signed and issued for, if it had been, the matter would have ended and terminated there; and would not be before this Court; besides, the mere inaction to perform a purely ministerial act is a refusal. Also, the affidavit attached to the return and answer clearly show a sufficient demand and refusal under all the circumstances. Paragraph 7 of petition was denied; this was a denial that there were sufficient funds to pay the salary of petitioner. The allegation in the complaint that there were sufficient funds is clearly proven by the testimony taken before me, and, in addition to this, the burden is on the respondents to show the contrary, as they had the books and records in their possession. State ex rel. Fooshe v. Burley, 80 S.C. 127, 61 S.E., 255, 16 L.R.A. (N.S.), 266. Also, it is a general principle of law that in mandamus proceedings a mere denial based upon information and belief, without stating facts or showing the source of the information, is insufficient to put the allegation denied upon information and belief in issue, as was done in this case. Paragraph 8 of the petition was denied, which is a denial that the petitioner has no other adequate remedy at law to enforce his claim, and, thereby raised a question of law, which has been decided in petitioner's favor.
For the reasons above stated, the first defense is insufficient to deny the petitioner the relief asked for.
As to the sixth defense: This objection is based upon the ground that all funds in the hands of the county treasurer have been appropriated for certain purposes other than the payment of petitioner's claim, and to pay said claim would be in violation of Sections 4426, 3076, and 3874 of the Code of 1932. This objection can be disposed of by considering the clear-cut distinction between legal claims (or salaries fixed by a continuing statute) and audited claims (or ordinary current county expenses). The distinction is this: In the former nothing is submitted for the exercise of respondent's judgment, and they have no discretion to allow or reject the claim; while in the latter they are vested with the discretion. This distinction is based on the principle that, when the salary claimed is fixed by a permanent continuing statute, the actual right to which omission from an annual appropriation act will not affect, no special current appropriation is necessary to entitle the claimant to payment. In the case where a salary is fixed by a permanent continuing statute, nothing is left indefinite and uncertain in the law, no further legislative sanction or action is necessary to authorize the respondents to pay petitioner's salary. As was said by our Supreme Court in the case of Walpole v. Wall, supra: "'A salary fixed by law need not be audited.' There is no discretion to be exercised, but the salary must be paid." To my mind, the case of Grimball v. Beattie, supra, and the case of State ex rel. Buchanan v. State Treasurer, 68 S.C. 411, 47 S.E., 683, cited therein, is conclusive of this matter. I quote from the Grimball case: "In the State ex rel. Buchanan v. State Treasurer case, supra, the comptroller general and State treasurer contended that there were no funds in the State treasury upon which the comptroller general could draw his warrant directing the treasurer to pay such claim." In disposing of this contention, the Court said: "If there had been an appropriation of the amount claimed, this defense would not avail, because it is not stated that there are no funds in the treasury, only that there are none applicable to this claim." From the foregoing decision it is clear that a permanent continuing statute fixing the salary of a public officer, as in the case before us, amounts to an appropriation, and it is the obvious ministerial duty of the proper officers to pay the salary, and the only defense is that there are no funds in the treasury. The defense that there are none applicable to this claim is insufficient,
As to the seventh defense: This objection is based upon the allegation that there are no funds in the treasury out of which the petitioner's claim can be paid. In answer to this objection, I need only to point to what was said under the sixth defense.
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 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.
It is further ordered, adjudged, and decreed that the petitioner's demurrer to respondents' answer and return be, and the same is hereby, sustained.
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, John P. Ashmore, as Supervisor of Greenville County, C.O. Milford, L.H. Stringer, and R.W. Arrington, as the County Board of Commissioners of Greenville County, do issue their warrant, or warrants, in favor of the petitioner, Robert N. Smith, for $2,265.58 for balance of salary due him from July 1, 1931, through December, 1936, as treasurer of Greenville County; and that Robert N. Smith, as treasurer of Greenville County, do pay the said warrant, or warrants, upon presentation.
Messrs. W.E. Bowen and Dakyns B. Stover, for appellants, cite: As to requirement of county officer to make payment unless funds on hand appropriated for that claim: 13 S.C. 262; 64 S.C. 188; 5 A.L.R., 562; 38 C.J., 715; 161 S.C. 161; 159 S.E., 23; 129 U.S. 493; 32 L.Ed., 780; 52 N.E., 334; 81 S.C. 419.
Messrs. Price Poag and W.A. Bull, for respondent, cite: Writ of mandamus: 155 S.C. 106; 149 S.E., 760; 13 S.C. 262; 68 S.C. 411; 47 S.E., 683; 174 S.C. 422; 177 S.E., 668. Authorization for drawing warrant for salary of public officer: Secs. 2700, 3190, 3859, Code 1932; 36 Cyc., 221; 142 N.W., 450; 24 P., 111; 43 Ala., 420; 100 S.C. 310; 56 S.C. 52; 182 S.C. 249; 189 S.E., 196.
August 5, 1937. The opinion of the Court was delivered by
In the main, we are adopting so much of the opinion of the trial Judge as appears in the record, which opinion disposes of appellant's exceptions seriatim. Let his opinion be reported.
The concluding paragraph of the "Statement" in appellants' printed brief is as follows: "It is not admitted that the respondent is legally entitled to the alleged unpaid portion of the salary claimed, on the other hand it is specifically denied, but assuming for the purposes of this appeal and this argument, only, that the county is indebted to respondent in the amount claimed, the appellants contend that payment cannot be made as ordered and the writ of mandamus as prayed for should not be granted for the reasons herein set forth." (Italics added.)
And at the close of the brief under the heading "Generally" is the following: "We have not sought in this argument to question mandamus as a proper remedy for the payment of salaries of public officers. We feel the authorities are clear on that subject and if there had been an appropriation made for the salary claimed to be due by this respondent and the only question was that the payment had not been made, the writ of mandamus would unquestionably lie and the respondent would be entitled to the relief sought. We are not at this time, as stated at the outset, questioning the right of respondent to the amount of alleged unpaid salary, or the county's liability to him for such an amount. The sole question at issue is whether or not the appellants can be compelled by mandamus to perform an act which they are specifically prohibited from performing by the several statutes applicable to this case; and we respectfully submit from the authorities herein cited and the various statutes quoted that the honorable County Judge was in error in granting the petition. If the County is indebted to respondent he has adequate remedy at law by instituting an action against the county and obtaining judgment thereon."
Respondent has no warrant for the payment of his salary, but he has a claim based upon a continuing statutory appropriation for an admitted balance of salary. He has shown that there are funds in the treasury of the county sufficient to pay his claim, and alleges that such funds are available for such purpose. On the issue thus presented the burden is on appellants to show that payment of the claim out of the funds in the treasury would encroach upon a specific appropriation made for another purpose.
The trial Judge held, as a matter of fact, that there were funds in the treasury applicable to the payment of respondent's claim. From this finding of fact, appellants allege error, but do not by exception allege abuse of discretion on the part of the trial Judge in so holding. Ordinarily the exception relating to findings of fact in a mandamus case will not be considered unless the exception alleges abuse of discretion on the part of the trial Judge (see State ex rel. Wilcox v. Scarborough, Sheriff, 56 S.C. 48, 33 S.E., 779; Maxwell v. Bodie, 56 S.C. 402, 34 S.E., 692), but, waiving this defect in the exception, we will state that the testimony on behalf of respondent shows a considerable amount of money on deposit in Greenville banks to the credit of respondent as treasurer of Greenville County. The testimony on behalf of appellants is evasive and equivocal as to whether or not all of such funds on deposit are taken up by specific appropriations for other purposes. After a careful reading of the testimony, we are unable to say that the trial Judge committed an abuse of discretion in finding, as a fact, that there are funds in the treasury available for the payment of respondent's claim.
Quoting from State ex rel. Fooshe v. Burley, 80 S.C. 127, 132, 61 S.E., 255, 257, 16 L.R.A. (N.S.), 266:
"It only remains to consider whether the failure to allege that there are funds in the county treasury applicable to the payment of such claim is fatal to the issuance of mandamus in this case. When it is sought to enforce payment of an audited claim, it is undoubtedly true mandamus will be refused if it appears that there are no funds available to pay the same. State v. Hiers, 51 S.C. 388, 29 S.E., 89; State v. Daniel, 52 S.C. 201, 29 S.E., 633; McCaslan v. Major, 64 S.C. 188, 41 S.E., 893.
"But since the presence or absence of such available fund is a fact lying peculiarly within the knowledge of the officer, and can rarely, if ever, be certainly known by the lien claimant, except with the aid of the officer, it is but fair that, when that defense is relied upon, it should be alleged in the return of the officer, so that an issue on that point may be made up and determined with the burden upon the officer to show the absence of available funds. Such was not done in this case."
The order appealed from is affirmed, and the case remanded for such further orders, if any, as may be necessary to enforce the judgment herein.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.