Lyon v. Patterson, 9196

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9196 | S.C. | Dec 17, 1915

Lead Opinion

The Circuit Judges having been called to the aid of the Court en banc.

December 17, 1915. The opinion of the Court en banc was delivered by I cannot escape the conclusion that the act of the legislature appropriating money to pay the claim in question in effect annuls in part the decision of this Court in County ofRichland v. American Surety Co. and S.H. Owens, 92 S. *542 C. 329, 75 S.E. 549" court="S.C." date_filed="1912-08-26" href="https://app.midpage.ai/document/county-of-richland-v-american-surety-co-3879862?utm_source=webapp" opinion_id="3879862">75 S.E. 549, and is, therefore, constitutional, null and void, as an attempt to exercise judicial power.

This claim was before the Court in that case, and the right of the county to recover therefor was adjudicated. It was there contended that the extra allowance paid to the clerk was not as salary for performance of his duties as clerk, but for services required of him by the board outside of and in addition to his duties as clerk, and, for that reason, the extra allowance was not a violation of the statute, and that the county had received the benefit of the extra services, and was, therefore, bound legally and morally to pay for them. The Court was not fettered by any statute or want of power from sustaining those contentions, and did not reject them on any such grounds. If they had been proved by competent evidence, no doubt they would have been sustained under the authority of Luther v. Wheeler, 73 S.C. 83" court="S.C." date_filed="1905-11-27" href="https://app.midpage.ai/document/luther-v-wheeler-3881658?utm_source=webapp" opinion_id="3881658">73 S.C. 83,52 S.E. 874" court="S.C." date_filed="1905-11-27" href="https://app.midpage.ai/document/luther-v-wheeler-3881658?utm_source=webapp" opinion_id="3881658">52 S.E. 874, 4 L.R.A. (N.S.) 746n, 6 A. E. Ann. Cas. 754. But they were not sustained by the evidence, and it appeared that the extra salary allowed was for services as clerk, and that such allowance was in violation of the statute. Clearly, under the circumstances, the right of the county to recover the amount so unlawfully paid could not be relitigated in any Court; nor can the judgment of the Court thereupon be overthrown by the legislature, without violating the constitutional inhibition, that it shall not exercise judicial power.

I entertain no doubt of the power of the legislature to authorize, or even compel, a county to pay equitable or moral obligations, which could not be paid by the county authorities, or enforced in the Courts, on account of some irregularity or even for the lack of power in their creation, or for want of authority to pay or enforce them, or the lack of funds with which to do so, but this claim was not rejected by the Court upon any such ground, but upon the ground that it had been created and paid in violation of the positive prohibition of the statutes. Even if it were not res judicata, *543 it could hardly be contended that a claim so created and paid, without any proof of an emergency requiring such action, is based upon equitable or moral grounds.

For these reasons, as well as those expressed in the separate opinion of Mr. Justice Fraser, I am constrained to think that the judgment below should be reversed.

CIRCUIT JUDGES MEMMINGER and WILSON concurred in the opinion rendered by MR. JUSTICE HYDRICK.

Concurrence Opinion

I concur in result with Mr. Justice Hydrick, but not in the reason set forth by him.

It seems to me that there was at that time no statute by which this claim could be paid. It seems to me that if a title is declared defective at the time of suit, that would not prevent the holder from curing the defects in his title and having it afterwards declared good. So, as there was no statute by which this claim could be paid, the judgment did not prevent the legislature from passing an act by which it could be paid, provided that act itself was not forbidden by the Constitution.

It seems to me that this act is forbidden by the Constitution and that art. III, sec. 30, forbids the payment of "anyclaim under any contract not authorized by law." I think that prohibits this very thing, to wit, the making of a contract "not authorized by law" at the time it was made and afterwards securing payment of the claim by a subsequent statute.

The Constitution says to public officials, your contracts made in excess of your authority shall not be paid.

This act says it shall be paid, and is, therefore, unconstitutional.

CIRCUIT JUDGES GARY, SHIPP, BOWMAN and MOORE concur in the opinion rendered by MR. JUSTICE FRASER. *544

Concurrence Opinion

I concur in the result on the ground that the act of 1915 is obnoxious to article III, section 17 of the Constitution, which provides that "every act or resolution having the force of law shall relate to but one subject and that shall be expressed in the title," and only upon that ground.

CIRCUIT JUDGE MAULDIN concurs with Judge Prince.

Concurrence Opinion

I concur for the above reasons, and for the further reason that the act of 1914 is obnoxious to the above section of the Constitution.

Dissenting Opinion

For the reasons stated by his Honor, Judge H.F. Rice, in his Circuit decree, it is my opinion that the judgment of this Court should be that the judgment of Circuit Court be affirmed.

MR. CHIEF JUSTICE GARY, MR. ASSOCIATE JUSTICE GAGE and CIRCUIT JUDGE SEASE concur in the opinion delivered by MR. JUSTICE WATTS.