State v. Jennings

• Decision Date: 11 April 1904
• Citation: 47 S.E. 683,68 S.C. 411
• Parties: STATE ex rel. BUCHANAN v. JENNINGS, State Treasurer, et al.
• Court: South Carolina Supreme Court

47 S.E. 683

68 S.C. 411

STATE ex rel. BUCHANAN v. JENNINGS, State Treasurer, et al.

Supreme Court of South Carolina

April 11, 1904

Appeal from Common Pleas Circuit Court of Richland County; Townsend Judge.

Petition by the state, on relation of O. W. Buchanan, for writ of mandamus against R. H. Jennings, State Treasurer, and another. From an order directing a writ, defendants appeal. Reversed.

U. X Gunter, Atty. Gen., for appellants.

WOODS J.

We adopt the respondent's clear and accurate statement of the facts:

"Respondent claims that he is entitled to be paid the salary allowed by law to a circuit judge at the time of his election and qualification; that such salary is the amount named in the general appropriation act of December 23, 1893 and not that named in the salary reduction act of December 22, 1893.

The main facts are as follows: By the salary reduction act approved December 22, 1893, to go into effect 1st January 1894, the salary of a circuit judge was fixed at $3,000; by the general appropriation act approved the next day, and which went into effect immediately, December 23, 1893, salaries were provided for under the prior salary acts giving to circuit judges $3,500, and in this act it was declared in section 13 'that in the event that salaries or other compensation for services now provided for by law for officers, clerks and other persons, for which appropriation is herein made, shall be fixed by law at other rates than those herein provided for, such rates shall not affect such salaries or other compensation for the year 1894, but the amounts herein appropriated shall be paid them.' 21 St. at Large, pp. 417, 477.

By comparison of this appropriation act with salary reduction act of the previous day and prior salary acts, it will be seen that the salaries of the appropriation act were the same as in the prior salary acts, and not at all in agreement with the salary reduction act of the day before, except in cases where that act made no changes.

During the year 1894, on 4th December, O. W. Buchanan was elected judge of the Third Circuit, and four days afterwards he qualified and entered upon the discharge of his duties, his first term ending December 8, 1898. On 24th December, 1894, the general appropriation act was passed and went into effect, wherein only $3,000 was appropriated for the salary of the judge of the Third Circuit. Judge Buchanan received this $3,000 per annum for the four years of his first term, though demanding that he be paid $3,500."

Judge Buchanan applied to the circuit court for a writ of mandamus to compel the Comptroller General to issue his warrant, and the State Treasurer to pay such warrant, for the sum of $500 for each year the petitioner held the office of circuit judge; being the difference between $3,000, the sum actually paid, and $3,500, the sum petitioner claims he was entitled to receive each year. Judge Dantzler held by his decree, dated November 7, 1902, that the state was justly due the petitioner the sum of $2,000, which covered the claim for his first term as circuit judge, but that upon his second election the act then in force fixing the salary of circuit judges applied, just as if he had not before held office. Judge Dantzler, as we understand his decree, practically refused to issue the writ at that time on the ground that the appropriation was then exhausted, and that it was not to be assumed that the General Assembly would refuse to pay the amount he found to be due. The petitioner was given leave to renew his motion after the adjournment of the session of the General Assembly commencing January, 1903. No provision having been made for the claim by the General Assembly, the petitioner on July 3, 1903, filed an entirely new petition, reciting the facts, including the decree of Judge Dantzler, and praying "that a writ of mandamus may issue, directed to the Comptroller General, A. W. Jones, and State Treasurer, R. H. Jennings, commanding the former to audit and allow and to issue his warrant upon the State. Treasurer for the sum of $2,000, being $500 for each and every year of your petitioner's term of office, commencing 8th December, 1894, and commanding the State Treasurer to pay such warrant."

Upon hearing the petition and return, Judge Townsend ordered the writ to issue. From this order the Comptroller General and the State Treasurer appeal, alleging:

"That his honor Judge Townsend erred in adjudging the return to the petition as insufficient, and directing a writ of mandamus to issue:

(1) In that the salary reduction act of 1893, approved December 22, 1893 (21 St. at Large, p. 416), reducing the salary of the circuit judge to $3,000, was passed and enacted prior to the election of the petitioner as such judge, and that said act, in so far as it fixed the salary to be paid the circuit judges after the year 1894, was of force when the petitioner was elected and entered upon the discharge of his duties as circuit judge.

(2) In that it appeared upon the face of the petition that no appropriation has been made by law of any amount for the payment of the said sum of $2,000 alleged in the petition to be due the petitioner.

(3) That the court is without jurisdiction to issue the mandamus prayed for, inasmuch as the state is the real party in interest, and the mandamus prayed for would direct the payment by the state of a debt alleged to exist against it, the respondents, the State Treasurer, and Comptroller General, having no personal interest in the subject-matter of the suit, and the relief sought being an affirmative and official action by the state officers in performing an obligation which attaches to the State in its political capacity, and not the mere performance of a ministerial duty.

(4) In that there were no funds in the treasury upon which the Comptroller General could draw his warrant directing the State Treasurer to pay the claim mentioned in the petition."

We consider first the status and construction of the salary reduction act approved December 22, 1893, and the appropriation act approved December 23, 1893.

In State v. Stoll, 17 Wall. 425, 21 L.Ed. 650, the court says: "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, § 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.

As already intimated, as soon as the conflict can be regarded, in any reasonable view, at an end, it is the duty of the court to give to the former statute, as a separate enactment, full force, both as to the time when it shall have effect and as to its subject-matter. It is important, also, in the discussion, to have in mind the familiar rule that violation of the Constitution is not to be imputed to the General Assembly, if such a conclusion can be avoided by any fair and reasonable interpretation of its enactments.

The salary reduction act repealed by necessary implication all previous salary acts, so far as they related to the offices therein mentioned, but by its terms it did not go into effect until January 1, 1894. We now inquire for what further time its operation was suspended by the appropriation act, approved December 23, 1893. This inquiry involves a consideration of the scope of the latter statute. The Constitution of 1868, art. 9, § 13, provides: "The fiscal year shall commence on the first day of November of each year." In accordance with this requirement, the General Assembly, by the act approved December 23, 1893, as appears from the title of the act, made appropriation ""for the fiscal year commencing November 1st 1893." Section 13 of this act is as follows: "That in the event that salaries or other compensation for services now provided for by law for officers, clerks and other persons, for which appropriation is herein made, shall be fixed by law at other rates than those herein provided for, such rates shall not affect such salaries or other compensation for the year 1894, but the amounts herein appropriated shall be paid them." 21 St. at Large. p. 477. It is important to determine whether the words "the year 1894" referred to the calendar year or to the fiscal year, for, if the fiscal year was meant, then the appropriation for the salary of the judge of the Third Circuit ended on November 1, 1894, and the act reducing the salary...