Foster v. Taylor

• Decision Date: 21 April 1947
• Docket Number: 15940.
• Parties: FOSTER v. TAYLOR et al.
• Court: South Carolina Supreme Court

42 S.E.2d 531

210 S.C. 324

FOSTER v. TAYLOR et al.

No. 15940.

Supreme Court of South Carolina

April 21, 1947

H. K. Osborne and Thomas B. Butler, both of Spartanburg, for appellant.

Odom & Bostick and Johnson, Johnson &amp Foster, all of Spartanburg, for respondent.

STUKES Justice.

Respondent is a former Probate Judge of Spartanburg County whose compensation the legislature undertook to change from fees to salary. He sued the county upon the ground of the unconstitutionality of the legislative act thereabout and recovered judgment on May 24, 1945, in the sum of $4707.16 with interest from May 1 preceding, and costs. See Foster v. Mallory et al., 199 S.C. 144, 18 S.E.2d 740.

Upon the failure and refusal of the county governing Board to pay the judgment respondent filed his petition for mandamus. It was resisted principally upon the grounds which will be reflected in the statement of the allegedly applicable statutes, which are as follows Section 4755 et seq. of the Civil Code of 1942, Chapter 116 Article 44, relate to the government of Spartanburg County. Section 4767 thereof provides that any surplus existing in the county general funds, otherwise unappropriated and unpledged, is thereby appropriated for the purpose of paying outstanding county bonds and interest which may be due at the time of the accrual of such surplus or thereafter, whereupon the tax levy for that year shall be proportionately reduced. Section 4755 provides that the county Board shall pay out funds only for salaries fixed by law and items incurred by the Board or its duly authorized purchasing agent. And section 4758 requires that the county's financial affairs shall be budgeted by the Board, and there shall be expended no amount in excess of the amounts appropriated for the various departments of the county government.

Defendants (the county and its Board members) also set up the provisions of the annual county Supply Acts which from 1938, 40 Stat 2761, through the Act of 1946, 44 Stat. 2430, contain the following quoted portion of section 1 of each of said Acts:

'PROVIDED, That any surplus [funds] on hand at the close of any fiscal year, or period shall be applied to the payment of the principal and/or interest on bonds, * * * thereby reducing the levy proportionately; [However] the County Board of Spartanburg County may use such surplus funds to meet the payment of items appropriated for until taxes are available for payment of such items and for replacing of surplus funds allocated for payment of bonds and interest.'

Beginning with the county Supply Act in 1942, 42 Stat. 2491, and through that for the current year, there appears in the Acts the following:

'Authorization is hereby made for the expenditure of any surplus funds or funds on hand not allocated to specific items at the end of the fiscal year * * * in excess of the items herein appropriated for. Said funds may be applied to any existing agreements or contracts entered into. The provision for the application of surplus funds as set forth in Item 1, shall not affect the expenditure of funds as authorized in this Section. Such disbursements shall be made upon approval of a majority of the Legislature Delegation including the Senator.'

It is seen from the foregoing that there is conflict between the terms of Section 4767 of the Code and the annual Supply Act provision last quoted, but the latter requires that the expenditures of surplus funds (other than for bonded debt) shall be upon the approval of a majority of the legislative delegation. Further conflict may be found by reference to Section 2880 et seq., of the Civil Code of 1942 which also refers to Spartanburg County and includes a subsection designated as 2880-5, Vol. 2 of the Code, page 604, as follows: 'Disposition of unapportioned funds in the treasurer's office.--All unapportioned funds now in the county treasurer's office, or such as may accumulate hereafter without being designated for some definite purpose; be credited to the ordinary county accounts: provided, that any future claimant who may establish a just claim to any part of said funds be paid by the treasurer under an order by the circuit court from the fund or funds which have received credit for such amount.' It will not be necessary to resolve these various apparent conflicts in the statutes for our solution of the problem presented by the appeal rests upon a broader ground.

The trial Judge held that respondent's judgment against the county was obtained under such circumstances that it was really a consent judgment which constituted a contract between the parties and came within the disposition of the surplus funds in the subsequent Supply Act whereby it was provided that they 'may be applied to any existing agreements or contracts,' and that was an express exception to the prior appropriation of the surplus to the payment of the bonded debt of the county. It was further held that the subjoined provision of the Supply Act requiring that disbursement of surplus for the payment of existing agreements and contracts be made upon the approval of a majority of the legislative delegation was an invalid inpairment of the obligation of the contract, in contravention of the State Constitution, Art. 8, Section 1, and of the Constitution of the United States, Art. 1, Section 10.

It is unnecessary for us to approve the stated ground in order to affirm the judgment. No principle in the disposition of appeals is more firmly established than that a right decision upon a wrong ground will be affirmed. It is equally well settled that determination of unconstitutionality of a legislative act will be avoided when possible. Proper application of these rules enables us to decide the case without examination of the soundness of the judgment of the Circuit Court. We need concern ourselves only with the propriety of the result of it.

Concisely stated, the basis of the appeal is that the county cannot be required by the Court to pay respondent's judgment even from surplus funds for there has been no legislative appropriation for the purpose, but on the contrary the surplus funds, however, much and unneeded, have been expressly appropriated to the payment of county bond debt and interest. Section 9 of Art. 10 of the State Constitution is relied upon, as follows: 'Money shall be drawn from the Treasury only in pursuance of appropriations made by law.'

Reference has been made to the surplus funds of the county. They amounted on June 30, 1946, to the sum of $417,000. On that date the outstanding bonds of the county classified as 'Ordinary' were $1,804,354.99, and Road Improvement Bonds $519,445.94, the two series thus aggregating $2,323,800.93. The complete table of maturities in the record indicates that these amounts include interest to maturity of all the bonds and also bank commissions for the payment of maturities. The aggregate of the principal is $2,030,500. Principal, interest and bank commission maturities for the fiscal year ending June 30, 1947, aggregate $384,968.44. It is seen that the surplus at the beginning of the current fiscal year was substantially more than the bonded debt maturities for the year. Incidentally, the present Supply Act, already hereinabove cited (44 Stat. 2430), appropriated for the maturities, principal, interest and bank commissions, of the 'Ordinary' county bonds, but apparently not for the Road Improvement Bonds, so the surplus funds on hand at the beginning of the current fiscal year over bonded debt Supply Act appropriations was more by $84,968.44 than the foregoing figures indicate. The amount of respondent's judgment (involved in this action) is quite insignificant in comparison with the present resl surplus of the county. It appears that the county authorities would 'rob Peter (the judgment creditor) to pay Paul (the bond holders)' despite already more than ample provision for Paul's current needs.

The generally accepted authority of Freeman on Judgments, 5th Ed., contains in Vol. 2, page 2227, Section 1069, the following:

'The object of a judgment against a county is to obtain an audited demand which shall no longer be open to contest. * * * On being allowed (if required to be by a board, pursuant to a statute-interpolated), it will stand in the same position and be subject to payment in the same manner as other audited demands. No action can be sustained on such judgment; but if the board of supervisors refuse to allow the judgment when properly presented to them, they may be compelled to do so by writ of mandate. * * *'

The writ of mandate will not issue if the county be without funds except in those States where the defendant county Board or other local authority is empowered to levy taxes for the purpose of paying a judgment against the county. Emeric v. Gilman, 10 Cal. 404, 70 Am.Dec. 742, note. Illustration of enforcement against a municipal corporation without surplus funds but whose governing Board is empowered to levy taxes or assessments is found in State ex rel. Ascension Red Cypress Co. v. New River Drainage District, 148 La. 603, 87 So. 310.

The fallacy of appellants' position lies, we think, in their misconception of the meaning of the word 'surplus' with respect to the finances of a public corporation, here Spartanburg County. They depend for their refusal to pay the judgment upon the repeated and continuous appropriations by the legislature of the surplus of the county to payment of the bonded debt of the county, both current and future maturities; but the 'surplus' which was thereby appropriated did not, and does not, properly, and therefore legally, include the sums of money which should rightfully have long since been paid to respondent. His services, for which he has not been legally paid, contributed...