Opinion
14838
March 10, 1939.
Before SEASE, J., Spartanburg, July, 1938. Affirmed.
Mandamus proceeding by Marjorie G. Stallings, by her guardian ad litem, Jesse Stallings, against J.R. Mallory and others, constituting the County Board of Spartanburg County, and others, to compel issuance of a warrant for salary, and payment thereon. Decree for plaintiff, and defendants appeal.
The decree of Judge Sease in the Court below follows:
The petitioner seeks a Writ of Mandamus requiring the County Board of Spartanburg County and its clerk to approve and issue to her a salary warrant for six hundred forty-one and 66/100 ($641.66) dollars to pay her earned salary for the seven months beginning October 21, 1937, and ending May 21, 1938, at the monthly rate of $91.67, as stenographer for Dudley K. Gaffney, the magistrate "at the Court House", as designated in the Spartanburg County Supply Acts for the years 1935 (Act May 20, 1935, 39 St. at Large, p. 1109), 1936 (Act May 30, 1936, 39 St. at Large, p. 2611), and 1937 (Act May 27, 1937, 40 St. at Large, p. 1312), and requiring the County Treasurer to pay the warrant when issued.
The cause was heard upon the verified petition, the return of the respondents and testimony taken in open Court. From these the following facts are established without dispute:
Dudley K. Gaffney was appointed magistrate for Spartanburg County, in the City of Spartanburg, on May 16, 1935, and qualified and served as such continuously throughout the period for which the petitioner claims salary as his stenographer; the county's fiscal year ends June 30; in 1933, the Legislature (Act May 19, 1933, 38 St. at Large, p. 1076), provided for two magistrates at the City of Spartanburg, designating them as "Spartanburg No. 1" and "Spartanburg No. 2"; in the County Supply Act for 1935, a salary difference was made, and the magistrates were distinguished by the following language: "Magistrate at Court House" and "Magistrate City of Spartanburg". This distinction appeared in the Supply Bill for 1936, which established the salary of $1,800.00 for the "Magistrate at the Court House", and $1,650.00 for the "Magistrate City of Spartanburg"; in the 1937 Supply Bill there was provision for a salary of $1,800.00 for the magistrate "not located at the Court House", and, by Section 22 of that Act, Act May 27, 1937, 40 St. at Large, p. 1326, this provision is made with reference to the "Magistrate at the Court House", and his stenographer: "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 transferable 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."
The salary provided for the stenographer of "the other Magistrate * * * in the City of Spartanburg" was $1,100.00 per year.
The petitioner was employed and served as stenographer for the "Magistrate at the Court House" from October 21, 1937, to May 21, 1938, and filed monthly claims for salary, which the County Board refused to approve.
The stenographer serving this magistrate up to the time of the employment of the petitioner on October 21, 1937, was paid by the respondents at the same monthly salary rate claimed by the petitioner.
On June 1, 1938, the County Treasurer had in the general fund $234,554.14.
Under the holding in Gaffney v. Mallory, 186 S.C. 337, 195 S.E., 840, which construes Section 22 of the Spartanburg County Supply Bill of 1937, as providing a salary of $1,800.00 per annum for the magistrate who employed the petitioner and as making a specific appropriation for paying it, it seems to follow that that section provided a salary of $1,100.00 for the magistrate's stenographer and made a specific appropriation for its payment.
We then have the following undisputed facts:
A lawful magistrate lawfully employed the petitioner as his stenographer; the law fixed her salary at $1,100.00 a year; she served seven months, from October 21, 1937, to May 21, 1938; the supply Bill made a direct appropriation for paying her salary, either out of the Delegation Transferable Fund or the General Fund; at the close of May, 1938, the county treasurer had $234,554.16 in the general fund.
The petitioner is entitled to be paid and to the writ requiring the county board to issue and approve her salary warrant and requiring the treasurer to pay it, unless some legal objection not applying in the case of Gaffney v. Mallory, supra, is presented.
The contention of the respondents first presented is that, because the delegation to the legislature declines to sign an order or request for payment out of the Delegation Transferable Fund, the board would be guilty of a violation of Section 3074, Code of 1932, if it ordered payment made from that source — the only existing transferable fund being for the fiscal year 1938-1939, and the salary claim being within the preceding fiscal year. The petitioner not having shown delegation transferable fund on hand for the fiscal year in which her claim arose, the contention of the respondents seems correct insofar as payment from that source is concerned.
To defeat payment of petitioner's claim from the general fund in the treasurer's hands on June 1, 1938, the respondents invoke an Act of the Legislature adopted April 27, 1938 (40 St. at Large, p. 1712), and insist upon a construction of that Act by which the existing general fund on hand on June 1, 1938, is re-appropriated to the payment of matured or maturing county bonds and interest, arguing that "the cash surplus existing in the hands of the treasurer of Spartanburg County on June 30, 1938, is not available towards the payment of petitioner's claim for the reason that such surplus is specifically appropriated to the retirement of county bonds." The Act provides, in substance, as follows: "If at any time during any fiscal year or at the end of any fiscal year (including fiscal year 1937-1938) it should be ascertained and determined that there then exists a surplus in general funds not otherwise pledged or appropriated for such period or year for other purposes, in the county treasury of Spartanburg County, then such surplus funds shall be segregated and set apart in a separate account by the county treasurer to be used and applied by the county board of Spartanburg County, and the same are hereby appropriated for the purpose of paying any outstanding bonds which may be due at the time of the determination of the existence of such surplus or which may come due thereafter, together with interest thereon. * * *"
There is nothing in this Act indicating a legislative intent to make it retroactive so as to defeat earned compensation to the payment of which the surplus general funds dealt with had been previously appropriated by specific and valid enactment. The contrary intent arises by necessary implication from the care with which the legislature avoids an interpretation which would make the Act retrospective. It expressly exempts and excepts from the operation of the Act such portion of the general funds as may have been "otherwise pledged or appropriated for such period or year for other purposes."
This language is plain and seems to clearly include the petitioner's claim within that part of such general funds as have already been pledged or appropriated to another purpose, and are therefore not available for segregation to be applied to the retirement of bonds and bond interest. The 1937 Supply Bill for Spartanburg County, by Section 22, under the holding of Gaffney v. Mallory, supra, appropriated $1,100.00 to pay the salary of a stenographer for the magistrate at the Court House for the fiscal year July 1, 1937, to June 30, 1938. The petitioner's predecessor in this employment was paid. If so much of the general fund as might be necessary was appropriated to this purpose, it is still available and in the hands of the treasurer for the payment of the petitioner's claim. It is equally clear that this much of the general fund on hand June 30, 1938, is not affected by the provisions of the Act of April 27, 1938.
Since it is clear that the Act of April 27, 1938, does not seek to divert appropriations previously made for other purposes, but, on the contrary, expressly excepts from its operation such portion of the general funds on hand as may have been previously appropriated to other purposes it is unnecessary to discuss the question whether the Act would be constitutional if it had undertaken to revoke appropriations previously made to pay earned salaries and otherwise apply them.
The petitioner has argued this question, contending that there was a valid prior appropriation of general funds which might be on hand at the end of the fiscal year 1937-1938 for the payment of the petitioner's salary, fixed by law, and that the salary had been earned by completed services rendered and her right thereto was complete and could not be defeated by a later Act taking away the only source of compensation for services which she had rendered under a valid appropriation to pay for them. She urges that such an Act would amount to confiscation and would be invalid as in conflict with the due process, the contract and the ex post facto law clauses of the State and Federal Constitution. But, as stated above, I think it unnecessary to discuss this contention, because the Act does not attempt to interfere with the appropriation made to pay the salary of the stenographer at the Court House.
I think it clear that justice requires that the plaintiff's claim be paid. I think it equally clear that the law follows justice and makes the same requirement.
It is, therefore, adjudged and decreed that the return of the respondents is insufficient and presents no reason why the relief prayed should not be granted; that the petitioner is entitled to be paid her salary claim of six hundred, forty-one and 66/100 ($641.66) dollars; that it is the plain administerial duty of the county board and its clerk to issue a warrant for its payment, and of the county treasurer to pay the warrant when issued and presented, and that funds for its payment are available in the hands of the treasurer; that the county board and clerk do issue the warrant and the treasurer do pay it, and that any further order necessary to carry this judgment into effect may be applied for. Let the Writ issue.
Mr. Donald Russell, for appellants, cites: As to salary appropriation: 186 S.C. 337; 195 S.E., 840; 15 S.C. 552; 2 Bail, 586; 3 Hill, 96; 42 S.C. 17; 19 S.E., 1018.
Messrs. Lyles Daniel, for respondent, cite: Use of certain surplus funds: 147 S.C. 433; 145 S.E., 186; 13 S.C. 262; 29 S.C. 476; 7 S.E., 826; 153 S.C. 106; 149 S.E., 760; 86 S.C. 344; 68 S.E., 627; 164 S.C. 460; 162 S.E., 432.
March 10, 1939. The opinion of the Court was delivered by
The respondent brought this proceeding for a writ of mandamus, to require the appellants, as the members and as the clerk of the County Board of Spartanburg County, to issue her a warrant which she alleges is due her for seven months' salary (October 21, `1937, to May 21, 1938), as stenographer for Dudley K. Gaffney, Magistrate. She seeks further to require Paul M. Murph, as county treasurer, to pay the said warrant when issued.
After hearing the matter upon a rule to show cause, the Circuit Judge held the return of the appellants insufficient, and the right of the respondent to the issuance of the writ was sustained.
The exceptions raise several questions, all of which we have considered with care. However, we deem it unnecessary to discuss them, as an examination of the record satisfies us that they were correctly disposed of by the Circuit Judge. His decree, therefore, from which this appeal is taken and which will be reported, is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and BAKER concur.
MR. JUSTICE CARTER did not participate on account of illness.