Gillespie v. Blackwell

• Decision Date: 14 December 1931
• Docket Number: 13300.
• Parties: GILLESPIE, County Treasurer, v. BLACKWELL, Secretary of State, et al.
• Court: South Carolina Supreme Court

161 S.E. 869

164 S.C. 115

GILLESPIE, County Treasurer, v. BLACKWELL, Secretary of State, et al.

No. 13300.

Supreme Court of South Carolina

December 14, 1931

Suit In the original jurisdiction by Jesse D Gillespie, as Treasurer of Pickens County, against W. P Blackwell, Secretary of State, and others.

Decree for plaintiff.

Mann & Plyler, of Greenville, for plaintiff.

John M Daniel, Atty. Gen., for defendants.

STABLER J.

This action was brought in the original jurisdiction of the court for the purpose of enjoining the defendants, the secretary of state, the comptroller general, the state treasurer, and the Governor, from declaring the office of county treasurer for Pickens county vacant on account of the failure of the plaintiff, Jesse D. Gillespie, the county treasurer, to furnish an official bond with a surety company as surety as required by an act of the General Assembly (37 Stat. at Large, p. 151). A rule to show cause, returnable on October 12, 1931, and a temporary restraining order were issued by Mr. Justice Cothran. The defendants made return, and the matter duly came on for hearing.

The act in question is as follows: "That from and after the approval of this Act the Treasurer of Pickens County shall be required to furnish an official bond in the usual form, in the sum of Forty Thousand ($40,000.00) Dollars, the Supervisor of Pickens County shall furnish an official bond in the sum of Ten Thousand ($10,000.00) Dollars, and the Superintendent of Education of Pickens County shall furnish an official bond in the sum of Ten Thousand ($10,000.00) Dollars. Said bonds shall be executed by the respective officials and some reputable Surety Company authorized to do business in this State, and shall be in the usual form and have the same conditions as now fixed by law for such official bonds; the premium on said bonds shall be paid by the County of Pickens as other liabilities of said County are paid."

Plaintiff contends, inter alia, that this act is a special law--relating only to Pickens county--where a general law can be made applicable, and is, therefore, in violation of article 3, § 34, subdivision 9, of the State Constitution.

Section 34 provides: "The General Assembly of this State shall not enact local or special laws concerning any of the following subjects or for any of the following purposes, to wit: I. To change the names of persons or places. II. To incorporate cities, towns or villages, or change, amend or extend the charter thereof. III. To incorporate educational, religious, charitable, social, manufacturing or banking institutions, not under the control of the State, or amend or extend the charters thereof. IV. To incorporate school districts. V. To authorize the adoption or legitimation of children. VI. To provide for the protection of game. VII. To summon and empanel grand or petit jurors. VIII. To fix the amount or manner of compensation to be paid to any county officer except that the laws may be so made as to grade the compensation in proportion to the population and necessary service required. IX. In all other cases, where a general law can be made applicable, no special law shall be enacted. X. The General Assembly shall forthwith enact general laws concerning said subjects for said purposes, which shall be uniform in their operations: Provided, That nothing contained in this Section shall prohibit the General Assembly from enacting special provisions in general laws. XI. The provisions of this Section shall not apply to charitable and educational corporations where, under the terms of a gift, devise, or will, special incorporation may be required."

It will be noted that the first eight subdivisions of the section enumerate certain subjects as to which special laws are expressly prohibited, while subdivision 9 applies to all other cases where a general law can be made applicable. This subdivision, however, must be construed in connection with the proviso in the tenth subdivision. While under subdivision 9 special laws are prohibited in all cases where a general law can be made applicable, it is proper for the General Assembly, under the proviso in subdivision 10, to enact special provisions in general laws. As to the expressions, "local or special laws" and "special provisions in general laws," it was said in Grocery Company v. Burnet, 61 S.C. 205, 39 S.E. 381, 58 L. R. A. 687, that they do not mean the same thing, that they were intended to be construed in such a manner that neither would practically destroy the force of the other, and that under such construction the prohibition as to the enactment of local or special laws must not be held to practically nullify the right to enact special provisions in general laws. On the other hand, it was said in State v. Burns, 73 S.C. 194, 52 S.E. 960, 961: "To reconcile these apparently conflicting ideas, we must construe 'special provisions in general laws' so as not to practically nullify the purpose to uproot local or special legislation as to certain subjects and to secure general laws thereon having uniform operation throughout the state."

And, in order to give fair effect to the proviso, in subdivision 10, it is held that, although a statute containing "special provisions" may not in express terms purport to amend a prior general law on the same subject, yet such statute will be regarded as an amendment of the general law where by necessary implication such is its purpose and effect . Grocery Company v. Burnet, supra; State v. McCaw, 77 S.C. 351, 58 S.E. 145; City of Columbia v. Smith, 105 S.C. 348, 89 S.E. 1028.

Is the statute here in question, when viewed in the light of these general guiding principles, unconstitutional? We think it is, in part. The Legislature, by enacting a general law with respect to the acceptability of sureties on official bonds of county officials required by law to give bond, has declared in effect that a general law can be made applicable in such cases. Bank v. Farmington Corporation, 99 S.C. 475, 83 S.E. 637; Barfield v. Mercantile Company, 85 S.C. 186, 67 S.E. 158, 159. Section 749 of volume 3 of the 1922 Code provides in part: "The said bond or policy shall be made payable, in case of loss, to the State: Provided, however, That before any county official, hereafter elected or appointed to any county office in this State, who is required by law to give bond, shall enter into the discharge of the duties of his office, he shall secure bond in some reliable surety company authorized to do business in the State of South Carolina: Provided, That if any official be refused bond by any of said surety companies, after proper application, a personal bond shall be accepted when approved as now provided by law." (Italics added.)

While it is primarily for the Legislature to decide whether a general law can be made applicable in any specific case, the question is ultimately a judicial one (Barfield v. Mercantile Co., supra.), in solving which, the courts will give due consideration to the opinion of the Legislature, a co-ordinate branch of the government. But, aside from such consideration, we can reach no other...