Grimball v. Beattie

• Decision Date: 07 December 1934
• Docket Number: 13960.
• Citation: Grimball v. Beattie, 174 S.C. 422, 177 S.E. 668 (S.C. 1934)
• Parties: GRIMBALL v. BEATTIE, Comptroller General, et al.
• Court: South Carolina Supreme Court

177 S.E. 668

174 S.C. 422

GRIMBALL v. BEATTIE, Comptroller General, et al.

No. 13960.

Supreme Court of South Carolina

December 7, 1934

Original proceeding by W. H. Grimball for an order of mandamus requiring A. J. Beattie, as State Comptroller General, and Eustace P. Miller, as State Treasurer, to issue and pay a warrant for the unpaid balance of petitioner's salary as Circuit Judge of the Ninth Judicial Circuit.

Peremptory writ granted.

Nicholls Wyche & Russell, of Spartanburg, for petitioner.

John M Daniel, Atty. Gen., and J. Ingram Wilson, Asst. Atty. Gen for respondents.

PER CURIAM.

The petitioner, W. H. Grimball, brings this proceeding in the original jurisdiction of the Supreme Court, praying for order of mandamus to require A. J. Beattie, as comptroller general of the state of South Carolina, to issue to him a salary warrant in the sum of $242.50, which petitioner alleges is the unpaid balance of his compensation as circuit judge for the month of August, 1934. Petitioner further asks judgment that Eustace P. Miller, as treasurer of the state of South Carolina, be required by order of this court to pay such warrant when so issued.

A study of the petition filed and of the return made on behalf of the respondents discloses the following undisputed facts:

That the petitioner, W. H. Grimball, was elected, commissioned and qualified as circuit judge of the Ninth judicial circuit of South Carolina in January, 1933, for a term of four years; at the time of his election his compensation as fixed by the Code of Laws of South Carolina was $7,500 per annum. From this compensation he was required to pay his traveling and living expenses while engaged in holding the circuit courts in various counties of the state.

On the 1st day of September, 1934, he presented to the respondent, A. J. Beattie, as comptroller general of the state of South Carolina, a requisition for salary warrant for one-twelfth of the sum of $7,500 claiming this as his compensation as circuit judge for the month of August, 1934, as fixed by section 41 of the Code of Laws of South Carolina 1932. See Act Jan. 28, 1929 (36 St. at Large, p. 7), entitled "An Act to Fix the Compensation and to Provide for the Expenses of the Judges of the Circuit Courts."

The respondent A. J. Beattie, as comptroller general, refused to issue a warrant to petitioner, according to the requisition, on the ground that it was not in accordance with the provisions of the annual appropriation act of 1934, and therefor issued to petitioner a warrant for only $382.50.

It is admitted by the parties to the proceeding that there is a surplus in the hands of the treasurer of the state of South Carolina amounting to approximately $400,000.

The issues raised by the pleadings apparently cover a narrow sphere, but the spendid briefs presented by counsel for petitioner and respondents disclose that far-reaching questions of law are involved, not only as affecting the constitutional provisions invoked here, but as affecting the very basis on which the Constitution of the United States and that of the state of South Carolina was founded.

In the beginning, let us say, we fully realize the gravity of declaring under any circumstances an act of the Legislature, a co-ordinate branch of the government, to be invalid, yet here we are called on to decide whether the appropriation act of 1934 renders invalid the provisions of section 41, Code of Laws S.C. 1932, and whether or not the claim of petitioner is protected by section 9, art. 5, of the Constitution of South Carolina 1895, which declares: "The Justices of the Supreme Court and Judges of the Circuit Court shall each receive compensation for their services to be fixed by law, which shall not be increased or diminished during their continuance in office."

Generally speaking, petitioner claims that since, at the time of his election in the month of January, 1933, his compensation was fixed by law at $7,500 per annum, any act of the Legislature which had for its purpose or the result of which would amount to a change in his compensation during his term of office is contrary to, and prohibited by, the Constitution of this state, and that the Legislature, being forbidden by the state Constitution to change his salary during his tenure of office, could not indirectly accomplish this purpose by providing in its annual appropriation act an amount of salary less than that fixed by law at the time petitioner was elected and commissioned a circuit judge.

The respondents, however, claim that there has been no appropriation made by law as required by the provisions of the state Constitution which would authorize them to pay the amount claimed by the petitioner. To sustain this contention they rely upon Section 9, art. 10, Constitution of South Carolina 1895, which provides that "money shall be drawn from the Treasury only in pursuance of appropriations made by law."

Now, unless there has been an appropriation made by law authorizing the payment of the salary claimed by petitioner, the comptroller general should not issue his warrant for the amount. The vital question before this court is: Has there been an appropriation made by law to pay the salary claimed by Judge Grimball?

The provisions of section 9, art. 5, of the Constitution of South Carolina, as quoted above, seem clear and susceptible of only one construction, and that is, that the compensation of the judges of the Supreme Court and of the circuit courts of South Carolina "shall not be increased or diminished during their continuance in office."

Three important questions seem to be presented by petitioner, and may be considered as follows: (1) That there is a constitutional appropriation, and his contention should be sustained under the authorities relied on; (2) that section 41 of the Code of Laws S.C. 1932, passed pursuant to the terms and requirements of section 9, art. 5, of the state Constitution, quoted above, is a continuing statute, has never been repealed, and therefore his contention should be sustained on this ground; (3) that an appropriation bill cannot be used as a vehicle to repeal a continuing statute which was of force at the time of the election and qualification of the members of the judiciary.

It is a satisfaction to this court to know that our own Supreme Court has heretofore passed upon some of these important questions, and as was said by Mr. Justice Woods, one of the great jurists of the past, in the case of State ex rel. Buchanan v. State Treasurer, 68 S.C. 411, 47 S.E. 683, 685: ""As already indicated, if Judge Buchanan had been elected before November 1, 1893, he would have been entitled to a salary of $3,500 per annum for his entire term, notwithstanding that might have been intended to be the salary only during the currency of the appropriation bill, for the reason that the salary with which he entered office could not be lessened. But he was elected and qualified in December, 1894, after the end of the fiscal year, and after the reduction act went into effect."

In the case of Brooks v. Jones, 80 S.C. 443, 61 S.E. 946, our Supreme Court declared an annual appropriation act could not operate to suspend or repeal a permanent salary act, if such appropriation act was in violation of a constitutional inhibition, and said: "If an appropriation act appears to increase or diminish the salary provided in a permanent salary act, the former controls (if there be no constitutional prohibition violated)."

This case in effect decides that the Legislature, being prohibited by the state Constitution to change the salary of a circuit judge during his tenure of office, could not indirectly accomplish this purpose by providing in its annual appropriation act an amount of salary less than that fixed by law at the time petitioner was elected and commissioned circuit judge.

From the foregoing decisions, it is clear that an annual appropriation bill cannot by its terms reduce the compensation of a circuit judge whose salary has theretofore been fixed by a continuing statute, which statute was in effect at the time of his election to office.

It is of importance to observe here that there is no provision in the state Constitution requiring legislative appropriations annually to make funds in the treasury available for the payment of the expenses of the government.

We here call attention to the pertinent sections of the state Constitution and of the statutes of South Carolina before us in this controversy.

Section 13, art. 5, of the state Constitution, provides for the office of circuit judge in the following language: "The State shall be divided into as many Judicial Circuits as the General Assembly may prescribe, and for each Circuit a judge shall be elected by joint viva voce vote of the General Assembly, who shall hold his office for the term of four years."

The General Assembly by section 50, Code of Laws of South Carolina 1932, divided the state into fourteen judicial circuits.

Section 9, art. 5, of the state Constitution, provides: "The Justices of the Supreme Court and Judges of the Circuit Court shall each receive compensation for their services to be fixed by law, which shall not be increased or diminished during their continuance in office."

Section 9, art. 10, of the Constitution of South Carolina, relied on by respondents, provides that "money shall be drawn from the Treasury only in pursuance of appropriations made by law."

As required by this provision of the Constitution, the Legislature, by section 41, Code of Laws of South Carolina 1932, fixed the compensation of circuit judges in the following language: "The annual salaries of the Judges of the Circuit Courts * * * shall be seven thousand five hundred ($7,500.00) dollars,...