Opinion
14515
July 15, 1937.
Before STOLL, J., Florence, April, 1937. Affirmed.
Proceeding by E.E. Ward to require Cyril A. Waters to show cause why certain things should not be done, and by B.F. Turner against Jesse A. Carter, which involved identical issues. From an order sustaining defendant's demurrer to the complaint, the plaintiffs appeal.
Order of Judge Stoll follows:
On February 24, 1937, the plaintiff, E.E. Ward, obtained from Judge William H. Grimball, the presiding Judge of the Fourth Judicial Circuit, a rule based upon a summons and complaint requiring the defendant, Cyril A. Waters, to show cause before me on March 22, or as soon thereafter as counsel could be heard, why the books, records, and all property and things of a public nature incident and pertaining to the office of Commissioner of the Florence County Governing Board should not be delivered to plaintiff.
Plaintiff's complaint alleges that Florence County is divided into six election districts; that the Florence County Governing Board consists of six members, one member from each district "to be appointed by the Governor upon nomination at the Democratic Primary" for a term of office of two years from January 1, 1935 (Section 4351, 1934 Supplement, Code of Laws 1932 [Act April 6, 1932, 37 St. at Large, p. 1441, § 1]); that the defendant, Cyril A. Waters, was elected in the primary elections of 1934 as a member of the Governing Board from the Florence election district for a term of office expiring on December 31, 1936, and so appointed by the Governor. In May of 1935, the General Assembly enacted the following statute (Act May 18, 1935, 39 St. at Large, p. 440):
"An Act Providing for the Appointment of Members of the Governing Board of Florence County Should a Vacancy Occur in the Personnel Thereof, Occasioned by Death, Resignation or Removal from Office, and Changing and Fixing the Term of Office of Said Governing Board.
"Section 1. Governing Board, Florence County — Vacancy. — Be it enacted by the General Assembly of the State of South Carolina: That should a vacancy occur on the Governing Board of the County of Florence by reason of the death, resignation or removal from office of any member or members thereon constituting said Board, then such vacancy shall be filled by appointment of the Governor for the unexpired term so becoming vacant, upon the recommendation of a majority of the Legislative Delegation of said County.
"§ 2. Term. — The term of office of the members of the said Governing Board is hereby declared to be four (4) years from January 1, 1935, and until their successors have been nominated, appointed and qualified, whose term of office shall likewise be for a term of four (4) years, and until their successors are nominated, appointed and qualified, and so on ad infinitum.
"§ 3. Purpose of Act. — It is hereby declared the purpose of this Act to change the existing law with reference to said Governing Board only as to the length of the term of office; and to provide for the filling of vacancies occurring thereon.
"§ 4. All Acts or parts of Acts inconsistent herewith are hereby repealed.
"§ 5. This Act shall take effect upon its approval by the Governor.
"Approved the 18th day of May, 1935."
Under the authority of the aforementioned statute, the Governor reappointed the defendant to a term of office of four years commencing January 1, 1935. The plaintiff further alleges that in the Democratic primary election of August 25, 1936, he was duly and regularly elected a member of the Governing Board from the Florence District for the term commencing January 1, 1937, and that the appointment by the Governor of the defendant, Cyril A. Waters, for a term of office of four years was based upon a misconstruction of Act No. 311 of the Acts of 1935 [39 St. at Large, p. 440], for the reason that the Governor "has no authority or power to appoint defendant to the office without the defendant having been elected in the Democratic Primary," said "election of defendant being a prerequisite to his appointment, or the beginning of a term of office."
The prayer of the complaint prays judgment that plaintiff's right to the office be adjudged and decreed by this Court; that he be given unmolested charge of said office, to which he has been elected, and the possession of the books, records, office, and papers incident and belonging to the office; that he also have judgment against the defendant for the salary that may have accrued since January 1, 1937.
The defendant, by way of the return to the rule to show cause, demurred to the complaint on which said rule to show cause was based on the ground that the complaint fails to state facts sufficient to constitute a cause of action for the following reasons:
I. In that it appears from the face of the complaint that the plaintiff claims as his sole authority to bring the action his alleged nomination to the office in a primary election held in Florence County, S.C. August 25, 1936, and such nomination, even if a vacancy had existed at that time, does not constitute sufficient authority to maintain an action against the defendant, the person in the actual possession of the office and performing the duties thereof under appointment thereto, as shown in the complaint.
II. In that it appears in the statute creating the Governing Board of Florence County, S.C. as set forth in Paragraph 3 of the complaint, that in order for any person to maintain an action as one of the members of such board, as plaintiff in this action is seeking to maintain, he must be appointed to such office by the Governor of South Carolina; and there is no allegation in the complaint that the plaintiff has received such appointment, and in the absence thereof he cannot maintain this action to try title to the office.
III. In that it is a condition precedent to plaintiff's right to maintain an action to try title to the office of a member of the Governing Board of Florence County, against the defendant as a member of such board, that he (the plaintiff) show that he has been duly commissioned to such office; and, as the complaint fails to allege that he has received such commission, he has no right to maintain this action to try title to such office.
IV. In that it appears from the complaint herein that the defendant is in the actual possession of the office under appointment thereto by the Governor of the State of South Carolina and discharging the duties thereof; and, as such de facto officer, his right to exercise the functions of such office and to retain the books, papers, and other records thereto cannot be brought in question by a person who does not show in himself by the allegations of his complaint a superior title thereto.
V. In that it appears from the face of the complaint that the plaintiff has no such standing as will enable him to maintain the present action, and that he is not in position to question the right of the defendant to exercise the duties of such office.
By agreement of counsel for plaintiff and defendant, the cause was argued before me at chambers, in Kingstree, S.C., on April 2, 1937.
At the outset it is evident that the office of a member of the Florence County Governing Board is not an elective office but is an appointive office, inasmuch as the Act of 1932 and the Act of 1935 provides that the Governor shall appoint after nomination at the Democratic primary. The nomination at the Democratic primary operates as a recommendation to the Governor and does not in itself place the nominated person upon the Governing Board, such that the person so nominated, in order to become a member of the Governing Board, has to be appointed by the Governor, as well as nominated in the primary election.
At the hearing the defendant first maintained that the plaintiff has no right to come into a Court of equity and demand the possession of the books, papers, and privileges of said office without first establishing his title to said office, or showing in himself a right to the title of said office superior to that of the defendant. The plaintiff, in his complaint, is asking that the title to the office be adjudged and decreed, but the plaintiff has failed to show in his allegations a right superior to that of the defendant, or a prima facie title to the office free and clear of any reasonable doubt. It is therefore evident that the relief asked for in the rule to show cause should be and is denied.
By consent of counsel for the plaintiff and defendant, the merits of the case were then argued before me. The gist of the plaintiff's cause of action is that the defendant is attempting to claim the office of commission from the Florence election district, basing his claim upon an alleged election in the Democratic primary of 1934, that the defendant's term of office expired on December 31, 1936, and that the Governor of South Carolina had no right or authority to appoint defendant to a four-year term of office commencing January 1, 1935. The plaintiff has no commission or appointment from the Governor, while the defendant holds a commission for the aforementioned four-year term of office.
The office of Governing Board of Florence County is a creature of the Legislature, such that the term of this office be ended, extended, or shortened at the will of the Legislature. The Supreme Court of South Carolina has held in the cases of Alexander v. McKenzie, 2 S.C. 81; State v. Rhame, 92 S.C. 455, 75 S.E., 881, Ann. Cas., 1914-B, 519; State v. Hough, 103 S.C. 87, 87 S.E., 436; Walpole v. Wall, 153 S.C. 106, 117, 149 S.E., 760, that in the absence of any constitutional inhibition political offices are subject to the entire control of the legislative power, which may at its mere will and pleasure abolish the offices themselves or change the tenure by which they are held or remove the officers and put others in their places with or without elections.
The defendant was a member of the then existing Governing Board when the Act of 1935 became law, and as the Legislature was not prohibited by any constitutional provision in this instance from changing the term of office from two years to four years, the appointment of the defendant to a four-year term of office is valid.
The plaintiff contends that the Act of 1935 was only to provide for, the filling of vacancies that may accrue upon the Governing Board, and that the Governor misconstrued the Act in this particular. However, a reading of the title of the Act and of the Act itself clearly shows that the intent and meaning of the Act is not only to provide for the filling of vacancies, but also to change the term of office from two years to four years.
It is therefore ordered, adjudged, and decreed that defendant's demurrer be sustained, and that the rule to show cause, and the complaint upon which the rule to show cause is based, be dismissed.
Messrs. C.T. McDonald and Troy T. Stokes, for appellant, cite: As to expiration of term under commission: 183 S.E., 145.
Messrs. McEachin Townsend and G. Badger Baker, for respondents, cite: Nomination serves as recommendation to Governor to appoint: 189 S.E., 361. Political offices subject to legislative control in absence of constitutional restriction: 153 S.C. 117; 149 S.E., 760; 2 S.C. 81; 92 S.C. 455; 75 S.E., 881; 103 S.C. 87; 87 S.E., 436; 97 A.L.R., 1436. Demurrer: 90 S.C. 229; 71 S.E., 1009; 71 S.C. 95; 50 S.E., 675.
July 15, 1937.
These two cases are identical as to the issues involved, and it is agreed that a decision of one of them will also dispose of the other. The facts are not in dispute, and are sufficiently stated by Judge Stoll in his order, which will be reported. A study of the record convinces us that the Circuit Judge reached a correct conclusion, and we approve the result of his decree.
From a reading of the pertinent statutes (Acts March 28, 1931, and April 6, 1932, 37 St. at Large, pp. 199 and 1440; Act May 18, 1935, 39 St. at Large p. 440), it is clear that the office about which this controversy arose is undoubtedly an appointive and not an elective one, and it was properly so held. The Act of 1932 (page 1440 of the Acts of that year), established a Governing Board for Florence County to consist of six members, "one from each Commission District to be appointed by the Governor upon the nomination at the Democratic Primary." Section 1.
The respondent, Waters, was duly nominated in the primary of 1934, and was thereafter appointed by the Governor, as provided by the Act of 1932, for a two-year term as a member of such Governing Board, beginning January 1, 1935. It is conceded or undisputed that the office of a member of this board is a creation of the General Assembly; and we find no restriction in the Constitution, and none has been pointed out, upon the Legislature with respect to the office thus created. In State v. Hough, 103 S.C. 87, 87 S.E., 436, 437, the Court had this to say: "Those holding offices created by the Legislature hold them subject to the legislative will. The power that creates an office can impose such limitations and conditions upon the manner of filling it, and the tenure and the exercise of the duties of the office, and may modify or abolish any of these, or the office itself, as its wisdom may dictate, when no provision of the Constitution is contravened in doing so."
By the Act of 1935 (page 440 of the Acts of that year), which became effective upon its approval by the Governor on May 18th, it was provided that the term of office of the members of the Governing Board should be four years from January 1, 1935, and that any vacancy occurring on such board, for any of the reasons stated in the Act, should be filled by appointment of the Governor for the unexpired term so becoming vacant, upon the recommendation of a majority of the legislative delegation of Florence County. As is seen, this Act was passed nearly five months after the respondent had been inducted into office under the 1932 Act providing for a two-year term; and by express language, it operated retroactively to fix the four-year term created by it to begin on January 1, 1935, the date which the Act of 1932 designated for the beginning of the two-year term provided by it. We think, therefore, that this express provision of the 1935 Act may be fairly construed as indicating a purpose or an intention on the part of the Legislature to enlarge or extend the term of the incumbent; that is to say, to make it four years instead of two, beginning January 1, 1935. This the Legislature could do, if it so desired. If, then, as claimed by the appellant, the respondent later resigned as such officer, it would seem unquestionably true that the Governor, as provided by the Act of 1935, could appoint him, or any one else recommended by a majority of the Legislative Delegation, to fill the unexpired four-year term made vacant by such resignation.
The order appealed from is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and FISHBURNE concur.
MR. JUSTICE CARTER did not participate.
MR. JUSTICE BAKER disqualified.