,16 L.R.A.N.S. 266, State v. Burley

• Decision Date: 21 April 1908
• Citation: 61 S.E. 255,80 S.C. 127
• Parties: STATE ex rel. FOOSHE v. BURLEY, County Supervisor.
• Court: South Carolina Supreme Court

61 S.E. 255

80 S.C. 127

STATE ex rel. FOOSHE v. BURLEY, County Supervisor.

Supreme Court of South Carolina

April 21, 1908

Gary A. J., dissenting.

Appeal from Common Pleas Circuit Court of Fairfield County; John S Wilson, Judge.

Mandamus by the state, on the relation of J. Frank Fooshe, against J B. Burley, as county supervisor of Fairfield county, to compel respondent to publish the statement of claims audited by the board of county commissioners of the county. From a judgment granting the writ, respondent appeals. Affirmed.

J. G McCants, for appellant.

J. E. McDonald, for respondent.

JONES J.

This is an appeal from an order of his honor, Judge John S. Wilson, granting a peremptory writ of mandamus, commanding the respondent, as county supervisor of Fairfield county, to publish the statement of claims audited by the board of county commissioners of said county as required by section 769 (Civ. Code) 1 Code of Laws 1902. This section requires the supervisor of Fairfield county, among others, to publish in some newspaper published in the county, at least in one issue thereof, and within 15 days after each meeting of the county board of commissioners at which claims are audited, a full statement of the claims audited by the said board at its meeting immediately preceding the publication, the statement to show the file number of the claim, the amount claimed, the amount allowed, the nature of the claim, and the name of the claimant. The statute further provides that the publication shall be paid for at the rate now allowed by law for public printing, provided the sum does not exceed $60 per annum. Certain counties named therein were exempted from its operation. The petitioner is a resident freeholder and taxpayer of Fairfield county, and is pecuniarily interested because he is the editor and proprietor of the News and Herald, the only newspaper published in Fairfield county.

The petition alleges that a large number of such claims have been audited by said board at sundry meetings during the year 1907, but that respondents have refused to make publication notwithstanding petitioner's demand therefor. The petition further alleges that respondent refused to make such publication because of the provisions contained in the act of the Legislature amending section 405, Civ. Code 1902, relating to the duties of county treasurers, approved February 21, 1906 (25 St. at Large, p. 45), in these words: "Nor shall the county supervisor of Fairfield county be required or allowed at public expense to publish annually or otherwise the itemized statement of disbursements for said county." But it further alleges that this provision is null and void, and affords no protection to respondent because it violates section 17, art. 3, Const., which provides 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 respondent made return to the petition, alleging that it does not state facts sufficient to authorize mandamus; that it does not appear that any appropriation had been made, nor that there was any fund in the hands of respondent or the county treasurer for the payment of such publication; that petitioner's interest in the question as a taxpayer is in common with all other taxpayers, and his claim of interest as publisher of the newspaper is contingent and speculative, and exists neither in contract nor as a trust; that the statute of 1906 forbidding respondent from publishing the statement of disbursements is not invalid as alleged, but, if so, it is not the plain ministerial duty of respondent to ignore it, and treat it as void. Judge Wilson granted the mandamus, holding: "The act in question only purports to amend section 405 (Civ. Code) of the Code of Laws of 1902, which relates entirely to the duties of county treasurers, and in no way attempts to describe any of the duties appertaining to county supervisors. The duties of county supervisors in regard to publishing the statements in question are set forth and prescribed by section 769 of said Code, and the provisions in question are mandatory, or, at least, they set forth a plain ministerial duty on the part of county supervisors, except those in counties exempted from the provisions of said section. In so far as the act of 1906, hereinbefore referred to, attempts to repeal or nullify the provisions of section 769 (Civ. Code) of the Code of Laws of 1902, it is plainly in violation of the requirements of section 17, art. 3, Const. 1895, and therefore to that extent null and void. This being so, the requirements of section 769 are left in full force and effect; and it is the plain duty of the county supervisor of Fairfield county to publish the statements of claims audited by the board of county commissioners, as is required by said section.

The appellant contends that Judge Wilson erred in holding the act of 1906 to be unconstitutional. We think there was no error in so holding. Section 769 relates to the publication by the supervisor of claims audited by the county board of commissioners after each meeting. Section 405 relates to the annual publication by the county treasurer of claims paid by him. Fairfield county was exempt from the operation of section 405, but not of section 769. The title of the act of 1906 was: "An act to amend section 405, vol. 1, Code of Laws, 1902, so as to except Marion county from the provisions thereof." The body of this amending act inserted Marion county among the counties excepted from its operation in accord with the title, but went further and inserted, the provisions as to Fairfield county-a matter not included within nor germane to the subject mentioned in the title. Charleston v. Oliver, 16 S.C. 47; State v Crosby, 51 S.C. 249, 28 S.E. 529; Blair v. Morgan, 59 S.C. 67, 37 S.E. 45; State v. Fields, 68 S.C. 148, 46 S.E. 771. Other cases illustrating the subject are State v. O'Day, 74 S.C. 448, 54 S.E. 607; Park v. Cotton Mills, 75 S.C. 568, 56 S.E. 234; Aycock-Little Co. v. Railway, 76 S.C. 332, 57 S.E. 27; State v. Hunter, 79 S.C. 96, 60 S.E. 226. 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...