Scroggie v. Scarborough

• Decision Date: 16 September 1931
• Docket Number: 13244.
• Citation: 160 S.E. 596,162 S.C. 218
• Parties: SCROGGIE v. SCARBOROUGH, State Treasurer, et al.
• Court: South Carolina Supreme Court

160 S.E. 596

162 S.C. 218

SCROGGIE v. SCARBOROUGH, State Treasurer, et al.

No. 13244.

Supreme Court of South Carolina

September 16, 1931

Original proceeding instituted by James B. Scroggie against J. H Scarborough, Treasurer of the State of South Carolina, and others.

Temporary restraining order dissolved, and petition dismissed.

A. W Holman, of Columbia, and W. L. De Pass, Jr., of Camden, for petitioner.

John M Daniel, Atty. Gen., Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., Thomas & Lumpkin, of Columbia, R. E. Babb, of Laurens, D. J. Jenkins, of Charleston, J. O. Williams, of Easley, for respondents.

H. C. Godfrey, pro se.

CARTER J.

This action, instituted in the original jurisdiction of the court, was brought by the petitioner, a citizen and taxpayer, against the respondent Scarborough, as state treasurer, for the purpose of having him permanently enjoined from paying certain vouchers or checks issued to the members of the General Assembly as expense money in accordance with an appropriation made by that body at its 1931 session. When the matter came on for hearing, the court ordered the petitioner to amend his pleading by making one or more persons of each of the following classes parties to the proceeding:

"(1) Members of the General Assembly who have received from the Comptroller General warrants upon the State Treasurer for the item of expenses amounting to $260.00 each contained in the Appropriation Bill of 1931 and are in favor of the constitutionality of the appropriation attacked by the petitioner;

"(2) Members of the General Assembly who received such warrants and are opposed thereto, and

"(3) Assignees, endorsees or otherwise holders of said warrants or checks of State Treasurer."

By the petition as so amended, it is alleged that the General Assembly, at its 1931 session, passed an act whereby it appropriated $260, designated as expense money, for each of its members; that this appropriation "is unlawful and unconstitutional in that there is no provision of law, by statute or constitution, which entitles said members to said compensation as salary, expenses or otherwise; all of which are now fixed and determined by the statute laws and Constitution of the State," and is in conflict with sections 9, 19, and 30 of article 3 of the State Constitution. It is further alleged that the payment of the $260 would be unlawful for the reason that the appropriation act "carried no authority for the payment thereof as by law required and that there is no legal warrant for the payment of said sum, or any other sum in excess of $400.00 per session and mileage"; and for the additional reason that it would be illegal and void because of noncompliance with section 70 of the appropriation act with reference to itemization.

The state treasurer, by return and answer, alleged that, in issuing the vouchers or checks in question, he was merely acting in accordance with the provisions of the appropriation act of 1931, and with his conception of his duty under that act. The respondents of the first class alleged that the action of the Legislature complained of by the petitioner was constitutional and valid. Members of the second class submitted the question of the constitutionality of the act to the judgment of the court without argument. Members of the third class pleaded the constitutionality and validity of the appropriation, and alleged further that the vouchers or checks which had been transferred to them, by assignment or otherwise, had been accepted without notice of any defect of title or infirmity in such instruments.

At the hearings had before this court, oral arguments were made by counsel representing some of the parties and by some of the litigants themselves; and these, with the several printed arguments filed, have been of much assistance to the court in arriving at its conclusions.

The main question to be considered is: Did the appropriation complained of increase the compensation of the members of the General Assembly in violation of the provisions of the Constitution?

Let it be said at the outset that we fully recognize the gravity of declaring, under any circumstances, an act of the Legislature, a co-ordinate branch of the government, to be invalid. Judge Cooley, in his Constitutional Limitations, quoted with approval in Butler v. Ellerbe, 44 S.C. 256, 22 S.E. 425, has this to say: "It is a solemn act, in any case, to declare that that body of men, to whom the people have committed the sovereign function of making the laws for the commonwealth, have deliberately disregarded the limitations imposed upon this delegated authority, and usurped power which the people have been careful to withhold; and it is almost equally so when the act which is adjudged to be unconstitutional appears to be chargeable rather to careless and improvident action, or error in judgment, than to an intentional disregard of obligation."

At its 1931 session (page 398, § 2), which was one of unusual length, the General Assembly appropriated, in addition to $400 as pay, the sum of $260 as expenses, for each of its members, in lump sums as follows:

" Senators (salaries and expenses) ......... $31,160.00."

"Representatives (salaries and expenses) .. $82,380.00."

The provisions of the Constitution and statute law, which the petitioner contends to have been violated by the appropriation of "expense money," are as follows:

Section 9 of article 3 of the Constitution: "Members of the General Assembly shall not receive any compensation for more than forty days of any one session."

Section 19 of article 3: "Each member of the General Assembly shall receive five cents for every mile for ordinary route of travel in going to and returning from the place where its sessions are held; no General Assembly shall have the power to increase the per diem of its own members; and members of the General Assembly when convened in extra session shall receive the same compensation as is fixed by law for the regular session."

Section 30 of article 3: "The General Assembly shall never grant extra compensation, fee or allowance to any public officer, agent, servant or contractor after service rendered, or contract made, nor authorize payment or part payment of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasions, preventing or suppressing insurrection."

Sections 16, 17, and 18 of the Civil Code of 1922:

"(16) Members of the General Assembly shall receive as compensation for their services the sum of four hundred dollars for each session and mileage at the rate of five cents per mile for the actual distance traveled in the most direct route going to and returning from the place where the session of the General Assembly shall be held; and the Speaker of the House of Representatives shall receive a salary of three hundred and fifty dollars per session, in addition to his compensation as a member. ***

"(17) The Clerk of the Senate shall, on the first day of each session, draw a pay certificate of five dollars in favor of each Senator, and the Clerk of the House of Representatives shall likewise, on the first day of each session, draw a pay certificate of five dollars in favor of each member of the House of Representatives, which shall be given in lieu of all stationery and postage to be used by such Senator or Representative in his official capacity during each session, and to be in addition to his per diem and mileage.

"(18) The Clerks of the Senate and of the House of Representatives shall each furnish for their Houses, respectively, for their use and for the use of their several Committees, such stationery as may be necessary for each session; the amount so to be furnished for the Senate not to exceed one hundred dollars, and that so furnished for the House of Representatives not to exceed one hundred and fifty dollars."

The limitations upon the power of the Legislature contained in the quoted sections of the Constitution may be thus summarized: (1) The Legislature may not provide compensation for its members for more than forty days in each session (article 3, § 9). (2) It cannot increase the per diem of its own members (article 3, § 19). (3) It cannot provide more than five cents per mile as mileage for its members (article 3, § 19). (4) It cannot provide a different compensation for its members when convening in extra session, from that provided by law for the regular session (article 3, § 19). (5) It cannot grant extra compensation, fee, or allowance, to any public officer after service rendered, or authorize the payment of any claim under any contract not authorized by law (article 3, § 30).

Respondents argue that, no other limitation on the power of the Legislature being found in any of these sections of the Constitution, so far as the case at bar is concerned, the Legislature, in all other phases of the matters, is supreme and is the people.

Section 9 of article 3 of the Constitution, considered with section 19 of the same article, clearly prohibits increasing the compensation of members of the Legislature during their term of office. The payment of "expenses," eo nomine, however, is not prohibited by the quoted provisions, and it therefore becomes necessary to examine these provisions, with special reference to the meaning of the terms used to characterize payments to be made or not to be made to members of the General Assembly, for the purpose of ascertaining whether the payment of expenses is included, under proper construction, in the limitations created by such provisions.

The terms "fee" and "allowance" are found only in article 3, § 30, which forbids the grant of extra compensation, fee, or allowance to any public...