Salley v. McCoy

• Decision Date: 09 November 1936
• Docket Number: 14372.
• Citation: 189 S.E. 196,182 S.C. 249
• Parties: SALLEY v. McCOY et al.
• Court: South Carolina Supreme Court

189 S.E. 196

182 S.C. 249

SALLEY v. McCOY et al.

No. 14372.

Supreme Court of South Carolina

November 9, 1936

Rehearing Denied Dec. 22, 1936.

On Petition for Rehearing.

Appeal from Common Pleas Circuit Court of Orangeburg County; Wm. H Grimball, Judge.

Action by J. R. Salley, individually and as County Treasurer of Orangeburg County, against S. J. McCoy and others, as members of and constituting the Orangeburg County Highway Commission of Orangeburg County, wherein the defendant filed a counterclaim. From a decree sustaining the plaintiff's demurrer to the amended answer, the defendants appeal.

Affirmed. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Decree of Judge Grimball, directed to be reported, follows:

This case comes before me on a demurrer to certain of the defenses set up in defendants' amended answer. The action was brought by plaintiff to have his right to certain compensation, by way of salary and tax execution costs determined by this court. The complaint alleges that the defendants constitute the Orangeburg County Highway Commission, the governing body of the county, and that plaintiff is the treasurer of the county and has been such since July, 1931, and prior thereto. It is alleged further that the county has not paid in full its portion of plaintiff's salary for the years 1931 through 1934, inclusive, nor for the expired portion of 1935, the amount claimed being stated for each year, and that plaintiff is entitled to $1 for each tax execution issued by him as county treasurer for the years 1932, 1933, and 1934, which has been collected, and will be entitled to $1.00 on each of the uncollected tax executions for these years, as and when collected. Also, that defendants deny plaintiff's right to the salary and fees claimed in his complaint.

The answer sets up nine separately numbered defenses, the eighth and ninth defenses being by way of counterclaim. Plaintiff's demurrer is to the third through the ninth defenses inclusive. The first and second defenses need not be considered. Briefly stated, however, the first defense amounts to a denial of all the allegations of the complaint, save so much thereof as alleges that the defendants constitute the Orangeburg County Highway Commission, that plaintiff is treasurer of the county, and that defendants deny plaintiff's claim, as set forth in his complaint. The second defense is that plaintiff has been fully paid, as by law provided.

The gist of plaintiff's contention is that he is entitled to receive compensation for his services as county treasurer as is provided by section 2700 and 2854, Code of Laws for 1932. Section 2700, being the general law of this state as to the salaries of county treasurers, provides for a salary of $3,500 for the treasurer of Orangeburg county. It (section 2700) also provides that the state shall pay two-thirds of the salary of the various county treasurers and that the respective counties shall pay one-third thereof. In the state appropriation acts for the years 1931 through 1935, inclusive, this salary ($3,500) was reduced each year under a general schedule of reductions. See Acts 1931, p. 446, § 56; Acts 1932, p. 1577, § 6; Acts 1933, p. 652, § 79; Acts 1934, p. 1642, § 6, and Acts 1935, p. 514, § 6. Plaintiff's salary claim against the county for each year is based upon one-third of $3,500, less the reductions just referred to, and after crediting the amounts already received from the county. Section 2854 provides, among other things, that the treasurer shall have $1 from the defaulting taxpayer for each tax execution or warrant issued.

As already stated, plaintiff's demurrer is to the third through the ninth defenses, inclusive; as to the third through the seventh, on the ground that they do not set forth facts sufficient to constitute a defense; and, as to the eighth and ninth, that they do not set forth facts sufficient to constitute a legal claim or set-off against plaintiff or his action as alleged in his complaint.

The various issues arising upon this demurrer have been fully argued before me by counsel for both sides. At my request written arguments were submitted on certain phases thereof. The case is of considerable importance and I have given it serious study.

An orderly treatment demands that the sixth defense be first considered. It is as follows: "For a sixth defense: (1) That under and by virtue of the Salary Act of 1932 the plaintiff, among other County officers, was placed upon a definite basis of compensation, which said basis was fixed by the County Supply Acts from and including 1933 to 1935, and that the operation of the office of the plaintiff, and those connected therewith, is governed entirely by the terms and provisions of the said act of 1932 and the Supply Acts from 1931 to 1935."

The Salary Act of 1932, p. 1390, Act No. 803, provides that in lieu of all fees, costs, and charges which the treasurer, auditor, clerk of court, judge of probate, and sheriff of Orangeburg county are entitled to collect and retain under the general law, they "shall be paid such salaries as may be prescribed by the General Assembly and annually appropriated by it for such purpose." Section 1. The act provides further that the officers shall keep itemized accounts of all fees collected, and on or before the tenth day of each month "they shall deliver one copy * * * to the Treasurer of said County together with payment to said Treasurer in full of all fees, costs and charges collected during the preceding calendar month." Section 2. In the Orangeburg county supply acts for the years 1931 through 1935, Acts 1931, p. 936, § 1; Acts 1932, p. 1985, § 1; Acts 1933, p. 1036, § 1; Acts 1934, p. 2143, § 1; Acts 1935, p. 1050, § 1, a certain appropriation was made for the "Salary of Treasurer" with the following provision appended: "Provided, The County shall pay to the Treasurer so much of this item as will make his salary from the County and State total $ ---, and acceptance of any payment from the County shall be deemed agreement to this provision."

The amount of the salary named varied for each year, as follows: 1931, $2,800; 1932, $2,240; 1933, $2,100; and 1934, $1,900, and these amounts should be inserted in the above provision as quoted for each year. In 1935 the Orangeburg county supply act covered two periods, the first for six months and the second for twelve months. The salary was fixed at $1,050 for the six-month period, and at $2,280 for the twelve-month period. Acts 1935, pp. 1050, 1055, §§ 1, 2. The salary fixed by the county supply act in each instance was less than the salary provided by the general law.

These, then, are the acts set up in the sixth defense as a bar to plaintiff's action. It is manifest that they do constitute a defense unless they are, as plaintiff contends, unconstitutional. Plaintiff says that these acts are in violation of article 3, § 34, subsecs. 8, 9, and 10, Constitution of South Carolina 1895, in so far as they purport to deprive him, as county treasurer, of tax execution costs, and to reduce his salary from that provided by the general law.

The constitutional provisions relied on, as printed in the appendix to the 1932 Code of Laws (volume 1, pp. 1049, 1050), are as follows:

"§ 34. Special Laws Prohibited.-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: * * *

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."

If the Constitution in fact remained as above quoted, this issue could be resolved in plaintiff's favor without further discussion. Holt v. Calhoun, 175 S.C. 481, 179 S.E. 501; State ex rel. Pearman v. King, 108 S.C. 339, 94 S.E. 866; State ex rel. Schroder v. Burns, 73 S.C. 194, 52 S.E. 960; Nance v. Anderson County, 60 S.C. 501, 39 S.E. 5; Dean v. Spartanburg County, 59 S.C. 110, 37 S.E. 226; DeHay v. Commissioners of Berkeley County, 66 S.C. 229, 44 S.E. 790; Gillespie v. Blackwell, 164 S.C. 115, 161 S.E. 869.

However, counsel for defendants have demonstrated to my satisfaction that the provision quoted above as subsection 8 was stricken from the Constitution in 1921. See resolution proposing amendment striking out this subsection, approved March 12, 1920, published as Act No. 905, 31 Statutes, p. 1700; and Act No. 135, approved February 28, 1921, 32 Statutes, p. 191, ratifying the amendment. Through some inadvertence, this subsection was not stricken from the Constitution as printed in the Appendix to the 1922 Code (volume 1, pp. 544, 545), nor as printed in the 1932 Code. Therefore, for the sake of convenience, I shall refer to the various subsections by number as quoted above in the remainder of this discussion.

Having eliminated subsection 8, counsel for defendants then argue that subsection 9 does not apply to the acts in question because another provision of the Constitution authorizes special legislation as to county government on any other than an expressly prohibited subject. They refer to article 7, § 11, the pertinent portion of which is as follows: "§ 11. Townships-Body Corporate-Township Government. * * * The General Assembly may provide such system of township government...