State ex rel. McLeod v. Mills

• Decision Date: 13 April 1971
• Docket Number: No. 19201,19201
• Citation: 256 S.C. 21,180 S.E.2d 638
• Court: South Carolina Supreme Court
• Parties: STATE ex rel. Daniel R. McLEOD, Individually and as Attorney General of the State of South Carolina, Plaintiff, v. John Henry MILLS, Comptroller General et al., Defendants.

Page 638

180 S.E.2d 638

256 S.C. 21

STATE ex rel. Daniel R. McLEOD, Individually and as Attorney General of the State of South Carolina, Plaintiff, v. John Henry MILLS, Comptroller General et al., Defendants.

No. 19201.

Supreme Court of South Carolina.

April 13, 1971.

Daniel R. McLeod, Atty. Gen., and Julius W. McKay, Columbia, for plaintiff.

Harry M. Lightsey, Jr., Columbia, for defendants.

MOSS, Chief Justice:

This action is one under the 'Uniform Declaratory Judgments Act', Sections 10--2001 et seq., 1962 Code of Laws, brought, with permission, in the original jurisdiction of this court. The purpose of the action is to determine the annual salaries of the Constitutional Officers of this State, who are parties to this action. The controversy arises out of the provisions of two acts passed by the General Assembly relative to these salaries.

The General Assembly of this State, at its 1969 session, by Act No. 349, 56 Stat. 595, approved June 24, 1969, provided in Part II, Permanent Provisions, Section 15 thereof, the following:

'The appropriate sections of the 1962 Code relating to salaries of the Constitutional Officers of the State Government, as amended, are hereby further amended so as to fix the following salaries for such officers, to be effective with the beginning of the regular term following the general election to be held in November, 1970: Governor $35,000.00, Lieutenant Governor $15,000.00, Secretary of State $30,000.00, Comproller General $30,000.00, Attorney General $30,000.00, State Treasurer $30,000.00, Adjutant General $30,000.00, Superintendent of Education $30,000.00.'

The General Assembly, at its 1970 Session, by Act No. 984, 56 Stat. 2085, approved April 1, 1970, such being the General Appropriations Act, for the fiscal year commencing July 1, 1970, and ending June 30, 1971, in Part I of said Act, provided line appropriations as salaries for the parties to this action, the following: Governor $25,000.00, Lieutenant Governor $7,500.00, Secretary of State, Comptroller General, Attorney General, State Treasurer, Adjutant General and Superintendent of Education $20,000.00 each.

It was further provided in the 1970 Appropriations Act, that:

'All Acts or parts of Acts inconsistent with any of the provisions of Part I of this Act are hereby suspended for the fiscal year 1970--71.'

The plaintiff and the defendants were elected to their respective offices at the general election held on November 3, 1970. All of these Constitutional Officers qualified and were installed in their respective offices on January 19, 1971. At that time the question arose as to whether they should be paid salaries pursuant to the provisions of the permanent statute, Section 15 of Act No. 349, or in accordance with the line appropriations set forth in the General Appropriation Act of 1970. The Comptroller General determined that the salaries should be computed in accordance with the provisions of the permanent statute. This action followed and the Comptroller General and State Treasurer were enjoined Pendente lite from making payments of compensation to the Constitutional Officers, except in accordance with the General Appropriation Act of 1970, pending the determination by this court of their entitlement to the compensation fixed in the permanent statute.

We are called upon here to decide whether the 1970 General Appropriation Act repealed or suspended the permanent statute fixing the salaries of the Constitutional Officers.

There are two ways of repealing a statute, one is by express terms and the other is by implication, and it is only in one of these ways that a statute can be repealed. It is well settled that repeal by implication is not favored and act should not be construed as impliedly repealing a prior act unless no other reasonable construction can be applied. Lewis v. Gaddy, 254 S.C. 66, 173 S.E.2d 376. A careful study of the 1970 General Appropriation Act convinces us that the General Assembly did not intend to repeal the permanent statute either expressly or by implication.

We have held that the first rule of construction in the interpretation of statutes is that of intention on the part of the legislature and where the terms of the statute are clear and not ambiguous, there is no room for construction, and courts must apply them according to their literal meaning. Jones v. South Carolina State Highway Department, 247 S.C. 132, 146 S.E.2d 166.

The legislature has in plain and clear language, in the 1970 Appropriations Act, said: 'That all Acts or parts of Acts inconsistent with any of the provisions of Part I of this Act are hereby suspended for the fiscal year 1970--71.' There are no ambiguities in the wording of this portion of the Act and such should be given its plain, ordinary and literal meaning. It thus appears that the above quoted section of the Appropriations Act is explicit and expresses the legislative intent that the increase in salaries for the Constitutional Officers, as contemplated by the permanent statute, must be regarded as 'suspended' during the fiscal year 1970--71. We, therefore, conclude that it was the intent of the legislature to temporarily suspend, until July 1, 1971, rather than repeal, the provisions of the permanent statute relating to the salaries of the Constitutional Officers. There is no doubt that the legislature has the power, where there is no constitutional prohibition, to suspend the operation of a statute. When such intention is clearly manifest this court has no choice but to give force and effect thereto.

There is a material difference between the repeal and the suspension of a statute. A repeal puts an end to the statute; a suspension holds it in abeyance. The question of whether the later Appropriation Act suspends or repeals an existing permanent salary statute has been considered by our court. The aforementioned question was specifically dealt with in the case of State ex rel. Buchanan v. State Treasurer, 68 S.C 411, 47 S.E. 683, which is here controlling. In the Buchanan case it appears that on December 22, 1893, the legislature passed a statute known as the Salary Reduction Act, which lowered the salary of State Officers, including circuit judges. On the folloing day the General Appropriations Act was approved fixing the same salary for circuit judges as had been provided in the Appropriations Act for the previous year and in excess of the salary specifically fixed by the Salary Reduction Act. At that time the fiscal year was from November 1 to October 31. Our court dealt specifically with the question of what effect the subsequent General Appropriations Act had on the prior Salary Reduction Act and how to resolve the apparent conflict between the two Acts. The court said:

'If, by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part, or wholly, as the case may be. See Endlich on Statutes, sec. 210. Where two statutes are passed at the same session, there is a still stronger presumption that they are intended to harmonize and not conflict, and it is the duty of the court to consider them, as far as possible, one statute, and endeavor to find what appears to have been the intent of the legislative body. Therefore the salary reduction bill, having been approved December 22, 1893, must be regarded amended and changed by the appropriation act passed the next day, so far as the two acts are in conflict. Riggs v. Pfister, 21 Ala. 469; Townsend v. Little, 109 U.S. 504, 3 S.Ct. 357, 27 L.Ed. 1012. The reduction of salaries contemplated by the former act must therefore be regarded suspended during the period the latter act provided for payment of the larger salary.'

In the case of Brooks v. Jones, 80 S.C. 443, 61 S.E. 946, the court reached a similar conclusion, saying:

'An appropriation act, though generally in duration temporary, has equal force and effect as a permanent statute for the time being. If approved subsequently to such permanent act, and there is irreconcilable conflict, the latter is suspended during the time the appropriation act is of force. United States v. Mitchell, 109 U.S. 146, 3 S.Ct. 151, 27 L.Ed. 887; State ex rel. Buchanan v. State Treas., 68 S.C. 411, 415, 47 S.E. 683.

'If an appropriation act...