Spartanburg County v. Miller

• Decision Date: 07 November 1924
• Parties: SPARTANBURG COUNTY v. MILLER, County Treasurer, et al.
• Court: South Carolina Supreme Court

132 S.E. 673

135 S.C. 348

SPARTANBURG COUNTY v. MILLER, County Treasurer, et al.

Supreme Court of South Carolina

November 7, 1924

Original proceeding by Spartanburg County for a writ of mandamus to be directed against L. G. Miller, as County Treasurer of Spartanburg County, and another. Writ granted.

Nicholls & Wyche and Bomar, Osborne & Brown, all of Spartanburg, for petitioner.

C. E Daniel and J. B. Atkinson, both of Spartanburg, for respondents.

MARION J.

By a proceeding in the original jurisdiction of this court, the petitioner seeks a writ of mandamus to compel the treasurer of Spartanburg county to permit certain auditors, employed by the legislative delegation of the county, to "count the cash" in the treasurer's office.

Petitioner's right to the relief demanded is referred to and predicated upon the terms and provisions of section 2 of an Act of the General Assembly (33 Stat. 1451) approved March 24, 1924 entitled "An act to provide for the levy of taxes for school and county purposes for the year 1924, and to direct the expenditures thereof for Spartanburg county," which section is, in part, as follows:

"Sec. 2. For the purpose of making a complete and comprehensive audit of the county offices and institutions and paying the expenses thereof the sum of ten thousand ($10,000.00) dollars is hereby appropriated, if so much be necessary, the amount to be paid in such installments and at such times as may be prescribed herein.

Provided, a certified public accountant or accountants shall be employed by the county delegation in the General Assembly or a majority thereof to make a complete audit of the books and accounts and official acts of all officers, offices and institutions of the county of Spartanburg to extend back for a period of six years from the first day of January, 1918, and up to and including the year 1924.

Provided, further, that all officers, agents or employees of the county of Spartanburg are required to exhibit and deliver to said accountants all books, accounts, vouchers, documents or records of any kind whatsoever in their possession or on file in their offices, or in their personal control whenever demanded by said accountant, or accountants and to account for all money held by them in any capacity in which they may be liable on their official bonds," etc.

Petitioner alleges, in substance, that in pursuance of the powers thus conferred upon them by the said act the "Spartanburg county delegation did employ Eaton, Saussy & Co., certified public accountants, to make an audit of the officers and offices, etc., in said county, including in such employment the office of the county treasurer of said county, and authorized said accountants to go into said office, examine the books, records, and accounts thereof, and to do whatever might be necessary to make and render a true audit thereof, with the view of ascertaining and reporting to said delegation the true status and condition of said office and of said county treasurer in his relations with the finances of said county"; that on two separate occasions the county treasurer refused to permit accountants, representing Eaton, Saussy & Co., to count his cash or to make such investigation of his office as would enable them to ascertain what amount of cash was in his official possession or control; and that it is impossible for the auditors employed to make a complete and comprehensive audit of said office, without knowing the amount of cash the officer has on hand and "checking same against his prior accounts and records," etc.

In his return, the respondent L. G. Miller, county treasurer, undertakes to raise numerous questions of law and fact. Broadly, the petitioner's right to the writ of mandamus sought is denied and resisted by the treasurer upon two grounds: (1) That the provisions of the act of 1924, under which certain parties claiming to proceed thereunder have sought to count the cash in his office, are unconstitutional and void; and (2) that, even if that act is valid, no proper and adequate demand thereunder has ever in fact been made on him by persons legally authorized to audit the affairs of his office, and that he has never at any time failed or refused to perform any official duty in that regard imposed by the act of 1924 or by any other law. The return of the comptroller general, formally made a party to the proceeding, raises no issue of fact or question of law which requires separate notice or treatment. Such of the specific contentions of the county treasurer as are deemed material to a disposition of the cause on its merits will be adverted to and considered in the following discussion.

We will first consider the contention that the act of 1924, relied upon by petitioner, is unconstitutional. Unquestionably, the rule recognized and approved in numerous decisions of this court is that, "when mandamus is sought to compel an officer to perform a duty enjoined by statute, the court will not generally permit the officer to assert that the statute is unconstitutional." Fooshe v. Burley, 61 S.E. 255, 257, 80 S.C. 127, 131 (16 L. R. A. [N. S.] 266), and cases therein cited in support of the foregoing proposition. In a note to the case of State v. Cease (114 P. 251, 28 Okl. 271) at page 152, Ann. Cas. 1912D, it is said:

"The trend of recent decisions is strongly in accord with the doctrine laid down in the reported case, that a law is presumed to be, and must be treated and acted on by a ministerial officer as, constitutional until its unconstitutionality or illegality has been judicially established, and that such officer cannot question its constitutionality." (Citing cases.)

It is true, as pointed out in Fooshe v. Burley, supra, that that rule is subject to the limitation that:

"If the nature of the office is such as to require the officer to raise the question, or if his personal interest is such as to entitle him to do so, he may contest the validity of the statute in a mandamus proceeding brought to enforce it."

But in this case it has not been made to appear that the respondent L. G. Miller, county treasurer, has any such personal interest as would entitle him to contest the validity of the act in question. Certainly, it cannot be assumed that a public officer has any such personal rights of privacy or of property as would exempt his official conduct from supervision or the affairs of his office from inquisition in accordance with the mandate of the supreme lawmaking power of the government. We are therefore clearly of the opinion that in the state of the present record the respondent is not entitled to challenge the constitutionality of the statute, and that petitioner is entitled to have the constitutional objections raised overruled on that ground.

Inasmuch, however, as petitioner has not made the point that the question of the constitutionality of the act could not be raised in this proceeding, and as there are considerations suggested by the nature of the controversy which more or less clearly indicate that it would be desirable in the public interest to have the question of the constitutionality of the statute settled without further delay, we will not decline to pass on the constitutional objections raised.

The first of these is that the act infringes section 17 of article 3 of the Constitution, requiring that:

"Every act or resolution having the force of law shall relate to but one subject and that shall be expressed in the title."

The title of the act here involved is that of the ordinary county supply bill, having to do with the general subject of the levying of taxes for "county" purposes and with the expenditure thereof for such purposes. That general subject is clearly expressed in the title of this Act. If, therefore, the provisions of section 2, which are here assailed, direct the expenditure of tax money for a county purpose, they are clearly embraced within the general subject expressed in the title. That an expenditure of money "for the purpose of making a complete and comprehensive audit of the county offices and institutions" is for a county purpose, within the meaning of the term "county purposes" as used in the title of the act, would seem obvious. And, in so far as the expenditure directed in section 2 is authorized, subject to certain conditions therein prescribed as to the qualifications of the accountants, methods of employment, etc., and in so far as the section imposes upon county officers the duty of exhibiting their books, records, etc., and of accounting to the auditors "for all money held by them in any capacity for which they may be liable on their official bonds," etc., we think the provisions relate to details of legislation reasonably incidental to carrying out the specific purpose for which the appropriation is made and clearly germane to the general subject expressed in the title. If so, the applicable and controlling principle of construction is that stated in Lillard v. Melton, 87 S.E. 421, 423, 103 S.C. 10, 14, and quoted with approval in the recent case of Poulnot v. Cantwell, 123 S.E. 651, 129 S.C. 171, as follows:

"When the general subject is expressed in the title, any details of legislation which provide the means, methods, or instrumentalities which are intended to facilitate the accomplishment of the general purpose, and are germane to it, may be embraced in the body of the act without violating this provision of the Constitution. State v. O'Day, 54 S.E. 607, 74 S.C. 449; Aycock-Little Co. v. Railway, 57 S.E. 27, 76 S.C. 331; Johnson v. Commissioners, 81 S.E. 502, 97 S.C. 212."

The contention that the act violates section 17 of article 3 of the Constitution is therefore overruled.

The second objection urged is that the act contravenes subdivision 9, § 34, of...