73 S.E. 628 | S.C. | 1912
February 7, 1912. The opinion of the Court was delivered by The petitioner, R.L. Golden, alleging that he is acting in good faith as a de facto rural policeman for the county of Greenwood, and as such defacto officer is entitled to the salary of the office from the *356 7th day of June, 1911, till the 7th day of January, 1912, asks this Court to issue its writ of mandamus commanding J.B. Wharton, foreman of the grand jury, and T.G. Burnett, supervisor, G.B. Riley and George Dorn, constituting the county board of commissioners, and F. Graham Payne, treasurer of said county, to draw the order and issue a warrant to pay the salary alleged to be due the petitioner, amounting to the sum of $583.31.
The rights of the petitioner have been adjudicated in proceedings heretofore instituted by him under the following provision of the act of February 19, 1911: "Be itenacted by the General Assembly of the State of South Carolina, that upon the approval of this act it shall be the duty of the Governor, upon the recommendation of the delegation of Greenwood county, to appoint three able-bodied men of the county of Greenwood, who are of good habits and of courage, coolness and discretion, known as men who are not addicted to the use of alcoholic liquors, or of drugs, and shall commission them as county policemen, for a term of four years, subject to removal by the Governor for cause: Provided, however, That no person shall be eligible to appointment who makes application for such appointment."
On the petition of Golden and Elledge this Court issued its writ of mandamus requiring payment to them of the salaries provided by law for rural policemen for the two months ending May 7, 1911. In that cause, reported in
"Appointment to office not being inherently an executive prerogative, it is competent for the legislature, in conferring the power of appointment, to attach such limitations and conditions to its exercise as may be deemed proper. The statute expressly provides that the appointment of rural policemen for Greenwood county shall be upon the recommendation of the legislative delegation of Greenwood county. No such recommendation having been made, the appointment was made without authority, and the petitioners cannot be held to be officers de jure."
Considering, however, that the petitioners had performed the duties of the office in good faith under the commission of the Governor which had not up to that time been declared invalid, the Court held that the petitioners were de facto officers, and that they were entitled to receive the salary for the two months ending May 7, 1911, inasmuch as neither the office nor the salary was claimed by any other persons. The writ of mandamus was accordingly issued. Subsequently under proper proceedings Mr. Justice Gary applying the rule thus laid down by the Court issued at chambers another writ of mandamus requiring payment of the salary of rural policemen to the same parties for the month ending June 7, 1911, on the ground that they should be regardedde facto officers and entitled to the salary up to June 14, 1911, when the decree was filed adjudging the petitioners to have no legal title to the office.
In the proceeding now under consideration the petitioner claims to be still a de facto officer and entitled to the salary in the face of the decision of this Court above referred to that he has no claim whatever to the office. To state the position is to demonstrate its unsoundness. It is impossible that the petitioner could have continued to assert *358 a claim to the office or to assume to act as a rural policemen under a bona fide belief that he was an officer after it had been finally adjudged that his claim to the office was without foundation. From the date of the judgment that the petitioner was not legally appointed and was not entitled to the office, his attempt to act as a policemen was a mere usurpation. Such disregard of judicial authority is nothing less than an attempt to subvert the law and is not to be sanctioned nor tolerated.
The petition is dismissed.
