Gamble v. Clarendon County

• Decision Date: 25 August 1938
• Docket Number: 14744.
• Citation: 198 S.E. 857,188 S.C. 250
• Parties: GAMBLE v. CLARENDON COUNTY et al., County Board of Com'rs.
• Court: South Carolina Supreme Court

198 S.E. 857

188 S.C. 250

GAMBLE v. CLARENDON COUNTY et al., County Board of Com'rs.

No. 14744.

Supreme Court of South Carolina

August 25, 1938

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

Action by J. E. Gamble, as Sheriff of Clarendon County, against Clarendon County and J. F. Dickson, and others, as County Board of Commissioners, to recover certain fees and costs wherein defendants filed a counterclaim, and 13 defenses to eight of which plaintiff demurred. From a judgment sustaining the demurrer, defendants appeal.

Affirmed in part and reversed in part.

STABLER C.J., and BONHAM, J., dissenting in part.

The decree of Judge Sease is as follows:

This case is before me on a demurrer of the plaintiff to certain defenses in the answer of the defendants. The action was brought by the plaintiff to recover fees, costs and salary alleged to be due him by the defendants as compensation for the discharge by plaintiff of his duties as sheriff of Clarendon County from March, 1931, to January, 1935.

The answer set up thirteen separate defenses. The plaintiff's demurrer is to the second, third, fifth, sixth, seventh eighth, ninth and tenth defenses. The demurrer does not go to the other five defenses, and the determination of the questions of fact raised therein, particularly the matters raised by way of offset and counterclaim by the eleventh and thirteenth defenses, must await a trial on the merits.

The basic legal questions involved, however, can be and should be determined upon demurrer. The solution of the questions here raised would require considerably more research and delicacy of handling were it not for the fact that the Supreme Court of our State has within the past year in the case of Salley v. McCoy, 182 S.C. 249, 189 S.E. 196, in passing upon questions raised by demurrer in a similar suit by a county officer for fees alleged to be due under the general state law and withheld under the supposed authority of subsequent legislation, determined almost completely the questions now before me. Although some of the points here raised were not specifically covered in the opinion of the Supreme Court or in the decree of the Circuit Judge in the Salley Case, the necessary implications of that case go far toward completely determining the defenses here involved. Some of the defenses, however, are directly covered by the Salley Case and it is to these that I first give my attention.

The Ninth Defense

The ninth defense really raises the question most fundamental in this lawsuit, but which has been directly passed upon by the Court in the Salley Case. The defendants in the ninth defense take the position that the fees alleged by the amended complaint to be owing belong to the County of Clarendon under the provisions of Act No. 152 of the Acts of South Carolina for the year 1931 (Code of 1932, Section 4185) and under the Clarendon County Supply Acts for the years 1931 through 1935.

Without discussion I point out that such a county salary Act as is Act 152, was held in the Salley Case to be unconstitutional as a special law where a general law can be made applicable within the prohibition of Paragraph 9 of Section 34 of Article 3 of the State Constitution of 1895.

Third and Fifth Defenses

The demurrer to these defenses must also be sustained under the direct authority of the Salley Case, that case holding clearly that the Statute of Limitations for the filing of claims with the County Board of Commissioners had no application when the claims were of such a nature that the law did not require them to be filed originally; that claims in derogation of allegedly unconstitutional legislation are of such a nature and that the Court of Common Pleas has original jurisdiction.

Second Defense

The matters raised by the second defense, I think, are really a part of the broad question presented by the ninth defense, which I have already shown is determined by the Salley opinion. The second defense alleges payment of salaries to the plaintiff for the years 1931-1935 and that the payment of these salaries constitute payment to the plaintiff in full for his services. The complaint alleged, however, that the plaintiff was entitled to certain fees over and above any salary that might be paid him.

The Court has before it those general statutory provisions allowing such fees. Disregarding the unconstitutional authorization by the Legislature of payment of salary in lieu of fees, it is necessary for me to hold that allegations that only a salary has been paid cannot constitute a defense to the complaint.

Seventh and Eighth Defenses

I come now to the matters raised in the seventh and eighth defenses which are to my mind the only important questions involved in this case not covered by the opinion in the case of Salley v McCoy, supra. The basis of these defenses is that the general law providing for fees for sheriffs in the State specially exempted Clarendon County, and that these exemptions are not special laws where a general law can be made applicable under the inhibition of Paragraph 9 of Article 3, Section 34, but are special provisions in general laws falling within the proviso of Paragraph 10.

Although the exemption of Clarendon County now appears in each of the fee statutes, they were no part of the original enactment and were added by the legislature during the same session that passed the Clarendon County Special Salary Act (37, Statute 212, Code of 1932, § 4185).

The amendments to the various provisions of the general law pertaining to sheriffs' fees are as follows:

Section 2171, fees for sales to Forfeited Land Commission, amendment exempting Clarendon County, 37, Statute, 17.

Section 2854, fees under tax execution, amendment exempting Clarendon County, 37, Statute, 161.

Section 3542, fees for judicial sales, amendment exempting Clarendon County, 37, Statute, 2.

Section 4950, fees for serving and entering writs, amendment exempting Clarendon County, 37, Statute, 18.

Section 8465, fees in condemnation proceedings, amendment exempting Clarendon County, 37, Statute, 4.

Section 9010, fees in sale of real estate in aid of assets, amendments exempting Clarendon County, 37, Statute, 16.

Before referring to the decisions passing upon the effect to be given to the proviso in Paragraph 10 of Article 3, Section 34, I point out the obvious fact that if the proviso had the effect that defendant seeks to attribute to it, the constitutional prohibition against the enactment of laws where general laws can be made applicable could be entirely disregarded by the legislature and the most flagrant special legislation enacted. If all that were necessary to avoid the effect of the other sections of Article 3, were, instead of passing a new law, to add an amendment to an old law, there would, as a practical matter, be no constitutional prohibition against special legislation.

If the salary Act of Orangeburg County was unconstitutional under the Salley decision, it seems impossible to say that Clarendon County could accomplish the same thing that Orangeburg County tried to do by simply adding amendments to the general fee statutes. It is an axiom of constitutional government that the legislature cannot accomplish by indirection what it cannot directly do.

This aspect of the plaintiff's case is greatly strengthened by the fact that the decisions do not make any distinction when passing upon the question as to whether certain legislation is prohibited as special legislation, or comes within the group of special provisions in the general law between enactments which are in form amendments, and enactments appearing as separate acts. State v. Huntley, 167 S.C. 476, 166 S.E. 637; Columbia v. Smith, 105 S.C. 348, 89 S.E. 1028; Carolina Grocery Co. v. Burnet, 61 S.C. 205, 39 S.E. 381, 58 L.R.A. 687; State v. McCaw, 77 S.C. 351, 58 S.E. 145; Walpole v. Wall, 153 S.C. 106, 149 S.E. 760.

When defendants' position is considered in the light of this rule, we find that what they are stating is the following proposition: The exemption of Clarendon County from the general fee statutes does not come within the prohibition of the Constitution. Since the legislature could constitutionally accomplish this change in the fee system by amendment to the fee statutes, it could accomplish the same result by enacting a separate law changing the fee system in Clarendon County. The Clarendon County Special Salary Act (37, Statute 212) is such enactment and is therefore constitutional. It is patent that this argument is squarely opposed to the law as announced in the Salley Case.

There are cases in this State announcing in a very forceful manner the general rule that the proviso cannot be so construed as to destroy the constitutional prohibition against special legislation.

From Dean v. Spartanburg County, 59 S.C. 110, 37 S.E. 226, 227: "It is also contended that the act of 1896 falls under the proviso in subdivision 12, hereinbefore mentioned, which is as follows: 'Provided, that nothing contained in this section shall prohibit the general assembly from enacting special provisions in general laws.' It is manifest, from even a casual reading of the constitution, that 'local or special laws,' and 'special provisions in general laws,' do not mean the same thing, and that they were intended to be construed in such a manner that neither would practically destroy the force of the other. * * * In order that a law may be general, it must be of force in every county in the state, and, while it may contain special provisions making its effect different in certain counties, those counties cannot be exempted from its entire operation."

This rule, perhaps the most definite statement of what special provision in...