[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 231 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 232 October 25, 1937. The opinion of the Court was delivered by Respondent was auditor for Clarendon County for the years 1931, 1932, 1933 and 1934, and was paid by the State of South Carolina as its two-thirds of his salary for the years 1932, 1933, and 1934, the sums of $1,283.10, $1,129.11, and $1,091.92. respectively.
Respondent alleges that his salary for these years, as fixed by the general law of this State, Section 2700 of the Code of 1932, was $2,250.00 annually, and as two-thirds of this salary is payable by the State, he is due a balance by *Page 233 the State of $216.90 for 1932, $370.89 for 1933, and $408.08 for 1934, or a total of $995.87.
He commenced an action in mandamus against appellants in the Court of Common Pleas for Richland County, but by consent the action was transferred to the Richland County Court, resulting in decree of that Court ordering that the appellant A.J. Beattie, as Comptroller General of the State of South Carolina, do issue his warrant or warrants in favor of respondent in above-stated amounts claimed as back salary due from the State, and that the appellant, Eustace P. Miller, as Treasurer of the State of South Carolina, do pay said warrants upon presentation.
We need not concern ourselves with the local supply bills of Clarendon County wherein it was attempted to reduce the salary of the auditor of that county, since similar local Acts have been declared unconstitutional, null and void in the case of Salley v. McCoy et al., 182 S.C. 249,189 S.E., 196.
The only question of fact over which there was any issue having been decided against appellants, and there being some testimony to sustain the trial Judge, such finding will not be disturbed. Also, the exception to the finding of the trial Judge, not having been argued, is presumed to be abandoned.
The cardinal questions raised by the appeal, and the only ones argued by appellants, are: (1) What was the salary of the auditor of Clarendon County for the years 1932, 1933, and 1934, in which is included the question: Does the annual appropriation Act supersede or have equal force with a permanent statute? And (2) is so much of the appropriation Act of 1932 (37 St. at Large, p. 1567), as undertakes to decrease the salary of county auditors for the year 1932, unconstitutional? A careful reading of the appropriation Acts for 1933 and 1934 (Act May 8, 1933, 38 St. at Large, p. 796, and Act March 16, 1934, 38 St. at Large, p. 1865) does not disclose that county auditors *Page 234 are referred to except the appropriation of a lump sum with which to pay them.
Under Section 2700 of the Code of 1932 (Act of 1929), the annual salary of the auditor of Clarendon County is $2,250.00, two-thirds of which, $1,500.00, is payable by the State. The State appropriation Act for 1931 (Act May 9, 1931, 37 St. at Large, p. 446, § 56) reduced the pay of county auditors from the scale paid in 1930 (the State's portion), on salaries from $1,301.00 to $1,800.00, 6 per cent. The State appropriation Act for 1932, at page 1577, provides that the State's portion of the salary of county auditors shall be reduced from the basis of 1931 on salaries of $1,201.00 to $1,500.00, 12 per cent.; and on page 1625, in Section 57, it is provided that any increases or decreases of salaries over or under amounts paid in 1931 shall become effective April 1, 1932. This provision was apparently inserted so as to avoid any possible conflict with Section 3212 of the Code of 1932. This last-mentioned section will be discussed later.
A simple calculation discloses that the State's portion of the salary of the auditor of Clarendon County for the year 1931 was $1,410.00. In the year 1932, the State's portion of the auditor's salary for Clarendon County for the months of January, February, and March was one-fourth of $1,410.00, or $352.50. For the balance of the year of 1932, if the salary had not been decreased, the State would have been due the auditor of Clarendon County $1,057.00; but the salary after April 1, 1932, having been reduced by the appropriation Act for 1932, 12 per cent., as aforesaid, the State was due him not $1,057.50, but $930.60. This added to the $352.50 for the months of January, February, and March, 1932, made the portion of the salary due by the State for 1932, the sum of $1,283.10 (the amount paid), if the appropriation Act of 1932 supersedes or has equal force for the period of time covered with a permanent continuing statute. *Page 235
On account of its persuasiveness and influence on this opinion, we here set forth Subdivision 1 of Section 3212 of the Code of 1932:
"(1) Authorization. — The State Treasurer is hereby authorized, empowered and directed to pay the salaries and expense allowance in lieu of salaries of State officers, county auditors and treasurers and employees for the months of January, February, and March of each year, the same to be paid upon a warrant issued by the Comptroller General and the Comptroller General is hereby required to issue such warrants. The payment of all salaries of State officers, county auditors and treasurers and employees shall be made upon the basis of the preceding year as set forth in the appropriation Act, except constitutional officers who shall be paid at the rate specified in the statutes for the term for which they have been elected."
It will be noted from the foregoing that it was recognized by the Legislature that the salaries of State officers, except constitutional officers, and county auditors and treasurers, who are not constitutional officers, would be subject to change annually by the State appropriation Act; and so that these officers would not be discommoded while awaiting the passage of the yearly appropriation Act, Section 3212 provided for the payment of salaries based on the salary of the preceding year. If increased or decreased, the necessary additions or deductions could be made for the remaining nine months of the year so as to conform to the salary appropriated. The section under discussion was formerly Act 838 of the Acts of 1930, p. 1397, after the passage of Section 2700 of the Code, and repealed all inconsistent Acts, and adopted as a criterion in the payment of salaries by which to be governed for the first three months of the year, the amount appropriated for officers the preceding year. *Page 236
When no increase or decrease in the salary of an officer is made in the appropriation Act for any given year, then the general permanent statute controls.
In principle, the case of Brooks v. Jones, 80 S.C. 443,61 S.E., 946, is on all fours with the phase under discussion in this case. There a permanent statute fixed the salary of the clerk of this Court at $800.00 per annum. The State appropriation Act for 1908 raised the salary to $1,000.00, and when the Comptroller General refused to issue his warrant on the State Treasurer for the increase, an action in mandamus was instituted.
We quote from the decree of the Circuit Judge granting the mandamus, at pages 444 and 445 South Carolina Reports, which decree was adopted as the opinion of the Court, and unanimously adopted in so far as the principle of law was concerned, as shown by the concurring opinion of Mr. Justice Jones (afterwards Chief Justice), at page 449 of 80 S.C. at page 947 of 61 S.E., concurred in by Mr. Justice Woods.
From main opinion:
"`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. U.S. v. Mitchell, 109 U.S. 146 (3 S.Ct., 151,27 L.Ed., 887); Buchanan v. State Treas., 68 S.C. (411) 415, 47 S.E., 683.
"`If an appropriation act appears to increase or diminish the salary provided in a permanent salary act, the former controls (if there be no constitutional prohibition violated), provided it is apparent that it was the intention of the Legislature to make the change. "The whole question depends on the intention as expressed in the (appropriation) statutes."U.S. v. Mitchell, supra; Belknap v. U.S., *Page 237 150 U.S. 588 [14 S.Ct., 183, 37 L.Ed., 1191]; Buchanan v. StateTreas., supra.'"