Stallings v. Mallory

• Decision Date: 10 March 1939
• Docket Number: 14838.
• Citation: 1 S.E.2d 620,189 S.C. 468
• Parties: STALLINGS v. MALLORY et al.
• Court: South Carolina Supreme Court

1 S.E.2d 620

189 S.C. 468

STALLINGS v. MALLORY et al.

No. 14838.

Supreme Court of South Carolina

March 10, 1939

The decree of Judge Sease in the court below follows.

The petitioner seeks a Writ of Mandamus requiring the County Board of Spartanburg County and its clerk to approve and issue to her a salary warrant for six hundred forty-one and 66/100 ($641.66) dollars to pay her earned salary for the seven months beginning October 21, 1937, and ending May 21 1938, at the monthly rate of $91.67, as stenographer for Dudley K. Gaffney, the magistrate "at the Court House", as designated in the Spartanburg County Supply Acts for the years 1935 (Act May 20, 1935, 39 St. at Large, p. 1109), 1936 (Act May 30, 1936, 39 St. at Large, p. 2611), and 1937 (Act May 27, 1937, 40 St. at Large p. 1312), and requiring the County Treasurer to pay the warrant when issued.

The cause was heard upon the verified petition, the return of the respondents and testimony taken in open court. From these the following facts are established without dispute:

Dudley K. Gaffney was appointed magistrate for Spartanburg County in the City of Spartanburg, on May 16, 1935, and qualified and served as such continuously throughout the period for which the petitioner claims salary as his stenographer; the County's fiscal year ends June 30; in 1933, the Legislature (Act May 19, 1933, 38 St. at Large, p. 1076) provided for two magistrates at the City of Spartanburg, designating them as "Spartanburg No. 1" and "Spartanburg No. 2"; in the County Supply Act for 1935, a salary difference was made, and the magistrates were distinguished by the following language: "Magistrate at Court House" and "Magistrate City of Spartanburg". This distinction appeared in the Supply Bill for 1936, which established the salary of $1800 for the "Magistrate at the Court House", and $1650 for the "Magistrate City of Spartanburg"; in the 1937 Supply Bill there was provision for a salary of $1800 for the magistrate "not located at the Court House", and, by Section 22 of that Act, Act May 27, 1937, 40 St. at Large, p. 1326, this provision is made with reference to the "Magistrate at the Court House" and his stenographer: "If at any time after the passage of this Act there is appointed a Magistrate to serve at the Court House, the compensation for said Magistrate and a stenographer may be paid out of the delegation transferable fund and, if not available out of this fund, then there is hereby appropriated, to be paid out of the general funds of Spartanburg County, the salaries of said Magistrate and the said Stenographer, but said salaries shall not be in excess of the salaries paid to the other Magistrate and the other stenographer in the city of Spartanburg."

The salary provided for the stenographer of "the other Magistrate *** in the city of Spartanburg" was $1100 per year.

The petitioner was employed and served as stenographer for the "Magistrate at the Court House" from October 21, 1937, to May 21, 1938, and filed monthly claims for salary, which the County Board refused to approve.

The stenographer serving this magistrate up to the time of the employment of the petitioner on October 21, 1937, was paid by the respondents at the same monthly salary rate claimed by the petitioner.

On June 1, 1938, the County Treasurer had in the general fund $234,554.14.

Under the holding in Gaffney v. Mallory, 186 S.C. 337, 195 S.E. 840, which construes Section 22 of the Spartanburg County Supply Bill of 1937, as providing a salary of $1800 per annum for the magistrate who employed the petitioner and as making a specific appropriation for paying it, it seems to follow that that section provided a salary of $1100 for the magistrate's stenographer and made a specific appropriation for its payment.

We then have the following undisputed facts:

A lawful magistrate lawfully employed the petitioner as his stenographer; the law fixed her salary at $1100 a year; she served seven months, from October 21, 1937, to May 21, 1938; the supply bill made a direct appropriation for paying her salary, either out of the Delegation Transferable Fund or the General Fund; at the close of May, 1938, the County Treasurer had $234,554.16 in the general fund.

The petitioner is entitled to be paid and to the writ requiring the County Board to issue and approve her salary warrant and requiring the Treasurer to pay it, unless some legal objection not applying in the case of Gaffney v. Mallory, supra, is presented.

The contention of the respondents first presented is that, because the delegation to the legislature declines to sign an order or request for payment out of the Delegation Transferable Fund, the Board would be guilty of a violation of Section 3074, Code of 1932, if it ordered payment made from that source-- the only existing transferable fund being for the fiscal year 1938-1939, and the salary claim being within the preceding fiscal year. The petitioner not having shown delegation transferable fund on hand for the fiscal year in which her claim arose, the contention of the respondents seems correct insofar as payment from that source is concerned.

To defeat payment of petitioner's claim from the general fund in the treasurer's hands on June 1, 1938, the respondents invoke an Act of the legislature adopted April 27, 1938 (40 St. at Large, p. 1712), and insist upon a construction of that Act by which the existing general fund on hand on June 1, 1938, is re-appropriated to the payment of matured or maturing county bonds and interest, arguing that "the cash surplus existing in the hands of the treasurer of Spartanburg County on June 30, 1938, is not available towards the payment of petitioner's claim for the reason that such...