Gaffney v. Mallory

• Decision Date: 14 March 1938
• Docket Number: 14641.
• Parties: GAFFNEY v. MALLORY et al.
• Court: South Carolina Supreme Court

195 S.E. 840

186 S.C. 337

GAFFNEY v. MALLORY et al.

No. 14641.

Supreme Court of South Carolina

March 14, 1938

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Proceeding for a writ of mandamus by Dudley K. Gaffney against J. R Mallory and others, as County Board of Spartanburg County and others. Decree for petitioner, and defendants appeal.

Affirmed.

Decree of Judge Sease follows:

The petitioner, Dudley K. Gaffney, brings this proceeding praying for a writ of mandamus to require J. R. Mallory, A. B Taylor, and R. F. Bagwell, as members, and R. H. Ashmore, as clerk, of the County Board of Spartanburg county to issue him a salary warrant in the sum of $150, which petitioner alleges is due him for salary as magistrate for the month of July, 1937. The petitioner further seeks in this proceeding to require Paul M. Murph, as treasurer of Spartanburg county, to pay such warrant, when issued. Upon a rule to show cause, the matter came before me for hearing.

From the verified petition, the answer and return of the respondents and the testimony taken before me, the following facts appear:

The petitioner, on May 16, 1935, was duly appointed by the Governor, by and with the advice and consent of the Senate, to serve as a magistrate for Spartanburg county, in the city of Spartanburg. He qualified as magistrate under this appointment, and has since served continuously as magistrate. No successor has ever been appointed and the petitioner is now filling the office.

The county's fiscal year ends June 30th. The petitioner was paid his salary through the month of June, 1937. During the month of July, he collected in fines and costs $1,005.80, which he turned over to the county treasurer and which was placed by him in the general fund of the county. Within due time, the petitioner filed all reports required by statute and presented to the County Board his requisition for $150 to cover his salary claim for the month of July. The board refused to issue a warrant therefor.

In 1933, the General Assembly provided for eight magistrates in Spartanburg county, and fixed their salaries. Statutes at Large for 1933, Act May 16, 1933, 38 St. at Large, p. 479. The act provided for two magistrates "at the City of Spartanburg" with a salary of $1,200, and they were referred to as "Spartanburg No. 1" and "Spartanburg, No. 2."

The County Supply Acts for 1933 and 1934, Act May 16, 1933, 38 St. at Large, p. 479; Act April 16, 1934, 38 St. at Large, p. 2184, made provision for a $1,200 salary to be paid each magistrate, designating them as above.

In the County Supply Act for 1935, Act May 20, 1935, 39 St. at Large, p. 1109, there was provision for salaries for two magistrates in the city of Spartanburg, but the act distinguishes between them by providing a salary of $1,800 for the "Magistrate at Court House" and a salary of $1,500 for magistrate "City of Spartanburg." See Statutes at Large for 1935, p. 1114.

The same distinction between the two magistrates appears in the County Supply Act for 1936, Act May 30, 1936, 39 St. at Large, p. 2615, the one at the courthouse being provided a salary of $1,800 and the other salary of $1,650.

In the County Supply Act for 1937, Act May 27, 1937, 40 St. at Large, p. 1312, there is a provision for a salary of $1,800 for the magistrate "not located at Court House." The salary of the other magistrate is provided for, if at all, by the Supply Act, by section 22, p. 1326, as follows: "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 transferrable 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."

At the end of the last fiscal year, the treasurer had a balance available for general county purposes of $85,786.63 which was brought over into the current fiscal year. This available balance as of July 31, 1937, was $49,181.80. As of October 15, 1937, the available balance was $107,613.05. The treasurer had borrowed $100,000.00 due January 5, 1938, in anticipation of the current year's tax collections.

To be entitled to a writ of mandamus to compel the payment of money, it must appear: (1) That the petitioner is the lawful incumbent of the office; (2) that there is a legal duty imposed on the respondents to pay the claim; (3) that the duty is ministerial; (4) that the petitioner has no other adequate remedy; (5) that there are funds in the treasury applicable to the payment of the claim. Chesterfield County v. State Highway Dept., 181 S.C. 323 , 187 S.E. 548; Rouse v. Benton, 100 S.C. 150, 84 S.E. 533.

That the petitioner is and was during July, 1937, the lawful incumbent of the office of magistrate is clear. The term of magistrates is fixed both by the Constitution and statute as two years and until their successors are appointed and qualified. Article 5, section 20, Constitution of 1895; section 3707, Code of 1932. The office to which the petitioner was appointed is still in existence, and no successor has been appointed for him. The petitioner's title to the office, and his right to the emoluments thereof, are clear.

I likewise hold that there is a legal duty imposed upon the respondents to pay this claim. The office of magistrate is a constitutional one and the salary of magistrates is guaranteed by the Constitution in the following language: "Each Magistrate shall receive a salary, to be fixed by the General Assembly, in lieu of all fees in criminal cases." Article 5, section 20, Constitution of 1895. In this connection, the language of the Supreme Court in Grimball v. Beattie, 174 S.C. 422, 177 S.E. 668, 671, is peculiarly apt: "It will be noted that the framers of our state Constitution used the words 'Judges of the Circuit Court shall receive compensation for their services to be fixed by law, which shall not be increased or diminished during their continuance in office.' The words 'to be fixed' themselves denote permanency. The words 'shall receive' constitute words used in appropriating moneys. There is therefore great force in the reasoning of the Supreme Court of Oklahoma in the case of Riley v. Carter to impel the conclusion that the provisions of section 9, art. 5, of our state Constitution, construed with the statutory provisions in the Code of Laws, 1932, constitute a constitutional appropriation of petitioner's salary in the amount of $7,500 per annum."

The petitioner's office was established by the General Assembly in 1933, and the salary fixed at $1,200 a year, payable monthly. Acts 1933, pp. 480, 481, § 3. This is a permanent continuing statute, which itself may constitute an appropriation. Grimball v. Beattie, supra; Dacus v. Johnston, 180 S.C. 329, 353, 185 S.E. 491; Smith v. Ashmore, 184 S.C. 316, 192 S.E. 565. The respondents' position that this statute, as to the salary provision, was repealed by the County Supply Act of 1935, which fixed a higher salary, is untenable. The Supply Act of that year had no force or effect beyond the fiscal year 1935, and its sole effect on the permanent statute of 1933 was to suspend, for the fiscal year 1935, only the salary provision of the statute. With the expiration of the 1935 Supply Act, the permanent statute of 1933 again became fully effective. Unless, therefore, the County Supply Act of 1937 changes the rate of the petitioner's salary, the permanent continuing statute of 1933, being unrepealed, gives the petitioner the right to be paid for July, 1937, at the rate of $1,200 a year. The effect of the 1937 Supply Act will be later discussed.

The petitioner has filed all reports and has paid over all fines and costs collected during July, 1937, to the county treasurer, as required by sections 3723, 3725, 3729, Code of 1932. He is entitled to be paid his salary for that month.

The authorities are conclusive that mandamus is the appropriate remedy to compel the payment of a salary fixed by law. There is no other adequate remedy, and the duty of issuing and paying a warrant for official salary is a purely ministerial one. State ex rel. Marshall v. Starling, 13 S.C. 262; Grimball v. Beattie, supra; Smith v. Ashmore, supra.

It is equally clear that there are available funds in the county treasury applicable to the payment of the petitioner's claim. It has been shown that there are funds in the treasury sufficient to pay the petitioner's claim, and the petitioner alleges that such funds are available to pay his claim. On the issue thus presented, the burden is on the respondents to show that payment of the claim out of the funds in the treasury would encroach upon a specific appropriation made for another purpose. Smith v. Ashmore, supra. The respondents have failed to sustain that burden of proof. The result compels a holding that there are funds in the treasury available for the payment of the claim.

It now remains to consider the amount of salary to which the petitioner is entitled for the month of July, 1937. At the time that the above-quoted section of the 1937 Supply Act was framed, there was pending in the General Assembly a bill to abolish the office of magistrate at the courthouse in Spartanburg county, and that bill had been passed by the Senate and was pending in the House, where it remained as unfinished business to the time of adjournment of the General Assembly. Furthermore, the two years for which the incumbent had been appointed had expired and he was holding over as...