Carolina Grocery Co. v. Burnet
| Decision Date | 22 July 1901 |
| Citation | 39 S.E. 381,61 S.C. 205 |
| Parties | CAROLINA GROCERY CO. v. BURNET, County Treasurer. |
| Court | South Carolina Supreme Court |
Application by the Carolina Grocery Company for a writ of mandamus against Barnwell R. Burnet, county treasurer of Charleston county, requiring him to pay a warrant held by plaintiff. Writ granted.
W. M Fitch, J. W. Barnwell, T. W. Bacot, and W. Turner Logan, for plaintiff.
G Duncan Bellinger, Atty. Gen., for defendant.
This is a controversy submitted without action on an agreed statement of facts in the original jurisdiction of this court. The plaintiff, a corporation of this state, seeks a writ of mandamus to compel the defendant, as county treasurer of Charleston county, to pay a warrant against said county for $3.50, issued by W. P. Cantwell, the supervisor of said county, in favor of the plaintiff, upon the approval of the claim by the county board of commissioners of said county. The county treasurer refused to pay the claim on the ground that the board of county commissioners of Charleston county is not a legally constituted board and had no power to authorize payment. The purpose of this controversy is to determine whether the board of commissioners of Charleston county is a legal board.
1. Before proceeding further we will notice an inquiry made at the hearing,--whether this court has jurisdiction to hear this controversy. Section 374 of the Code of Civil Procedure provides: "Parties to a matter in dispute which might be the subject of a civil action may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought ***" This provision of the Code is applicable to this court in all matters within its original jurisdiction, and since this court has undoubted original jurisdiction to issue writs of mandamus under article 5,§ 4, of the constitution, jurisdiction to hear this controversy, submitted under section 374 of the Code of Civil Procedure, is clear. Simpson v. Willard, 14 S.C. 191; Macoy v. Curtis, 14 S.C. 367. This case is not like the case of Nicholson v. Cousar, 49 S.C. 329, 29 S.E. 1035, wherein it was sought to submit to this court a controversy without action involving the specific performance of a contract for the sale of land,--a matter not within the original jurisdiction of this court.
2. The county board of commissioners of Charleston county, whose authority to act as such is now questioned, is composed of W. P. Cantwell, the supervisor of the county, as ex officio chairman, and Morris Israel and others named in the proceedings, who are chairman of the township boards of commissioners of the several townships of Charleston County, appointed by the governor on the 13th day of February, 1901, under the provisions of the act entitled "An act to provide a system of county government for the several counties of this state," approved January 4, 1894 (21 St. at Large, p. 481). If this act is now of force in Charleston county, in so far as it provides for the mode of organizing the county board of commissioners, then the writ of mandamus should issue to compel the county treasurer to pay the plaintiff's claim, which has been approved and duly ordered to be paid by said board and proper warrant issued therefor. At the session of 1898 the legislature passed an act entitled "An act to provide for the county government of the various counties of this state." This act was not approved by the governor, but, not having been returned by him to the general assembly, the act on the 12th day of January had the same force and effect as if he had signed it, under the provisions of section 23, art. 4, of the constitution. 23 St. at Large, p. 1. This act provided in section 2: "That the governor shall before the 1st day of February, A. D. 1899, upon the recommendation of the members of the general assembly from the several counties or a majority of them, and before the 1st day of February of each succeeding two years thereafter, appoint two persons from each county, who shall be known as the commissioners of the county, and who shall act with the supervisor in the governmental matters of the county," etc. In section 3 the act provides: "That on the 1st day of February, A. D. 1899, the office of county commissioners and township commissioners, as now provided by law to be appointed by the governor, shall be abolished, and the jurisdiction, powers and duties now devolved by law upon the appointive boards of county and township commissioners is hereby devolved upon the boards of county commissioners herein provided for, to consist of the county supervisor and two commissioners; and all claims against the counties to be valid shall be approved in writing by a majority of said board," etc. In sections 7 and 9 it was enacted that "the provisions of this act shall not apply to the counties of Bamberg, Barnwell, Chester, Spartanburg, Fairfield, Cherokee, Kershaw, Hampton and Beaufort," etc. Section 8 repeals all acts or parts of acts inconsistent with this act. This act on March 3, 1899 (23 St. at Large, p. 9), was so amended as to insert Charleston county in the list of excepted counties, and to strike Spartanburg out of said list. Then, on the 6th of March, 1899, another act was approved, entitled "An act to amend an act entitled 'An act to provide for the county government of the various counties of this state."' 23 St. at Large, p. 113. This act purports to reenact and amend the said act of January 12, 1899 (23 St. at Large, p. 1). It provides that the county board of commissioners shall consist of the supervisor and two commissioners, to be appointed by the governor. In section 4 provision is made for salaries of all the county supervisors in the state, including Charleston, and in section 6 provision is made for the selection and salary of a clerk of said board in the counties named therein, including Charleston county. Then in section 8 it is enacted "that the provisions of this act, except those of sections 4 and 6, shall not apply to the following named counties, to wit: Bamberg, Barnwell, Beaufort, Charleston, Cherokee, Chester, Kershaw, Hampton and Orangeburg"; and section 11 repeals all acts or parts of acts inconsistent with this act. Assuming the validity of the act of January 12, 1899, it is contended in behalf of the defendant that said act abolished the offices of county commissioners and township commissioners as then provided by law, to be appointed by the governor in all the counties of the state except those mentioned in sections 7 and 9, and substituted in place of the abolished offices those mentioned in section 2 of the act, and that Charleston, being among those excepted, became subject to the "Two Commissioners Act" of January 12, 1899; and further, that the act of March 3, 1899, supra, assuming its validity, by excepting Charleston from the operation of the act of January 12, 1899, abolished the new county government act so far as that county was concerned, and failed to provide any other in its stead. But we do not so hold. The acts on this subject should be construed together, in order to ascertain the legislative intent. We think it clear that the purpose of the acts of March 3, 1899, and March 6, 1899, supra, was to leave Charleston county subject to the act of 1894, supra, in the matter of the appointment and constitution of the county board of commissioners. The provision of section 37 of the Revised Statutes, viz. "The repeal of an act or joint resolution shall not revive any law theretofore repealed or superseded, nor any office theretofore abolished," does not apply. The effect of the act of January 12, 1899, and amending acts, was not to repeal, but to so amend the act of January 4, 1894, that in the matter of the appointment and constitution of the county board of commissioners in nine counties in the state, including Charleston county, the board shall be composed of the county supervisor and the chairmen of the boards of township commissioners appointed by the governor, while in the remaining counties (speaking generally) the county board shall be composed of the county supervisor and two commissioners to be appointed by the governor. Under this view, the county board of commissioners of Charleston county is legally constituted, having been appointed and organized as required under the act of 1894, in force in said county. This same result would follow whether the act of January 12, 1899, supra, and the said amending acts, are unconstitutional as local or special legislation, or not. If the act of March 3, 1899, exempting Charleston county from the change proposed in the act of January 12, 1899, and the act of March 6, 1899, re-enacting and amending the act of January 12, 1899, and exempting Charleston county, are in conflict with article 3, § 34, of the constitution, as special legislation, for the same reason the act of January 12, 1899, would be unconstitutional, since it exempts from its operation certain counties therein named, and in this event the act of January 4, 1894, known as the "John Gary Evans Act," would be still of force in Charleston county.
3. This, perhaps, renders it improper to consider the constitutionality of said acts; but, as one of the main objects of this proceeding is to obtain an expression from this court on this subject, we will venture to state our view. Article 3, § 34, of the constitution provides: ...
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