Lyon v. Patterson

87 S.E. 306, 102 S.C. 525, 1915 S.C. LEXIS 239

• Court: Supreme Court of South Carolina
• Decided: December 17, 1915
• Docket: 9196
• Status: Published

Opinions

The opinion of the Court en banc was delivered by

Mr. Justice Hydrick.

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 of Richland v. American Surety Co. and S. H. Owens, 92 S. C. 329, 75 S. E. 549, and is, therefpre, conconstitutional, 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, 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, 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.

1 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 Wieson concurred in the opinion rendered by Mr. Justice Hydrick.