Lead Opinion
The opinion of the- Court was delivered -by
The important question presented in this case is whether the Governor of the State has the power, at his discretion, to remove from office a magistrate whose appointment has been confirmed by the Senate. .The duty of the Court to pass on the limitations of the power of the General Assembly or the chief executive of the State is one of great delicacy, to be entered upon with the greatest deliberation and with care to find in the law support for the legislative action or the action of the chief executive if it be possible. While several provisions of the Constitution and a number of the statutes are to be examined and reconciled in the light of the legal history of the State, we venture to think that the correct solution may be made evident.
The question arises under a petition filed by B. L. McDowell asking the Court to -issue a writ of mandamus requiring the supervisor of Greenwood county to issue, and the county treasurer to pay, a check for his salary as magistrate. An order was made requiring the defendants to show cause why the writ should not be issued. Afterwards W. H. Kerr, who claimed to hold the office of magistrate against McDowell, was made a party by order of the Court. 90 S. C. 400. Returns were made which were not traversed.
The facts appear from the petition, returns, and from an agreed statement submitted by counsel. W. G. Austin,' whose term of office as magistrate began in 1909, died during the session of the General Assembly of 1910. W. EL Kerr was appointed and his appointment was confirmed by the Senate at the same session.
*472
The two years from the date of Kerr’s confirmation did not expire until the session of the Senate in 1912. On 25th of February, 1911, the Governor issued a commission to J. W. Canfield and wrote Kerr, “your successor having been appointed your commission is hereby revoked and made null and void.” Kerr refused to surrender the office and retained his books and records and continued to exercise the duties of magistrate. Thereafter, on 21st of March, 1911, the Governor wrote Kerr a formal notice of removal as follows:
“I am informed that you continue to act as magistrate. I have already advised you that your commission has been revoked, and while I had hoped you would retire gracefully, I now repeat to you that you are hereby removed from the office of magistrate for neglect of duty, having refused and failed to make your monthly statement in writing to the auditor and treasurer of the county of Greenwood.”
*473 Canfield sent his resignation to the Governor in May, 1911, whereupon the Governor issued a commission to McDowell, the petitioner. As Kerr’s term had not expired when these appointments of Canfield and McDowell were made neither of them could be sustained on the ground that it was made to fill a vacancy arising from the expiration of Kerr’s term of office.
But the Governor gave Kerr formal notice of removal by the revocation of his commission; and if the law has invested the Governor with the power to remove magistrates serving for the full term at his discretion, a vacancy was created by removal, the appointments of Canfield in February, 1911, and of McDowell in May, 1911, when Canfield resigned, were valid and McDowell would be entitled to the salary of the office until the end of the session of 1913, when the Senate refused to confirm his appointment. The inquiry into the power of the Governor to remove requires a detailed examination of the constitutional and statute law of the State.
The first provision in the Constitution in respect to the removal of officers is found under the head of “Legislative Department” and is in these very general terms:
3 “Officers shall be removed for incapacity, misconduct or neglect of duty, in such manner as may be provided by law, when no mode of trial or removal is provided in this Constitution.” Article III, section 37.
It will be observed that the provision is mandatory, in that it requires that officers shall be removed in such manner as may be provided by law, when incapacity, misconduct or neglect of duty has been legally shown to the removing power. It was held, however, in
Sanders
v.
Belue,
78 S. C. 171,
This section, it is to be remarked, further leaves to the legislative department the discretion to provide the manner 'of the removal, and this includes the designation of the person or tribunal who shall have the power of removal, arid the procedure by which such person or tribunal shall have a hearing and ascertain the fact of incapacity, misconduct or neglect of duty, except when a mode of trial or removal-is provided — that is a person or tribunal designated and a procedure indicated — in subsequent provisions of the Constitution.
The first question, then, is whether a mode of trial or removal of magistrates has been laid down in the Constitution. There are three sections providing modes of trial and removal of officers. Article IV, section 22, reads as follows: “Whenever it shall be brought to the notice of the governor by affidavit that any officer who has the custody of public or trust funds is probably guilty of embezzlement or the appropriation of public or trust funds to private use, then the governor shall direct his immediate prosecution by the proper officer, and upon true bill found the Governor shall suspend such officér and appoint one in his stead, until he shall have been acquitted by the verdict of a jury. In case of conviction the office shall be declared vacant and the vacancy filled as may be provided by law.” This applies to the removal of all officers, including magistrates, except the governor, but being limited to the misconduct of embezzlement, it has no application to other forms of misconduct or to incapacity or neglect of duty.
The other sections are those relating to impeachment and removal from office upon addr'ess of the General Assembly, and they are very broad in their terms. They are found in article XV, under the head “Impeachment:”
Section 3. “The Governor and all other executive and judicial officers shall be liable to impeachment; but judg *475 ment in such cases shall not extend further than removal from office. The person convicted shall, nevertheless, be liable to indictment, trial and punishment according to law.
Sec. 4. “For any wilful neglect of duty, or other reasonable cause, which shall not be sufficient ground of impeachment, the Governor shall remove any executive or judicial officer on the address of two-thirds of each house of the General Assembly. * * * ”
If the convention meant to include magistrates in the term “all other executive and judicial officers, then magistrates could be removed for incapacity, misconduct or neglect of duty only by impeachment, or by the Governor on address of two-thirds of each house of the General Assembly. In the widest and usual meaning of the words, “all other executive and judicial officers” would include every officer of the State not of the legislative department from the highest to the most insignificant. Yet, even if sections 3 and 4 of article XV • stood alone, it would hardly be reasonable to suppose that the framers of the Constitution meant to use the words in such a broad sense that every petty officer of the State and county, except in case of conviction of embezzlement, should be subject to impeachment and could be removed only by impeachment or address of two-thirds of the General Assembly. But they do not stand alone, and it must be that “all other executive and judicial officers” was meant in some limited sense, for section 27 of article III clearly contemplates the removal of officers of some kind in a manner other than by impeachment, address of the General Assembly, or conviction of embezzlement. That section must have some meaning, and its meaning, if possible, must be reconciled with the article relating to impeachment. In other words, if both provisions are to be given effect, there must be a line of distinction somewhere between impeachable executive and judicial officers and those smaller local officers subject to removal under the statutes of the State or the common law.
*476 The use of such general terms as “all executive and judicial officers,” “all civil officers” and the like in the impeachment articles of constitutions, where they must have been meant to have some limited meaning, is one of the most curious anomalies of legislation. . However difficult the task, the Court must try to find the line of distinction which the convention probably had in mind and mark that as the true line. In essaying the task, the primary principle must be kept in view that, in construing the Constitution of the State, the Court should not take the liberty of limiting the meaning of plain language, used without express limitation,' further than it can be made plain with reasonable certainty that such limitation was intended.
On first impression it may seem logical to hold the incumbents of all officers created by the Constitution removable by impeachment, and the incumbents of offices created by the General Assembly subject to removal in such manner as the General Assembly may. provide. But this distinction would lead to results which could not have been intended, for under it not only magistrates, but solicitors could be removed only by impeachment, legislative address, or on conviction of embezzlement, and even sheriffs and coroners would fall under the rule except for the single offense of allowing a prisoner to be taken by a mob and injured through the negligence, permission or connivance of the officer.
Search for the line of distinction which the framers of the Constitution of 1868 and 1895 intended to draw, in the light of the history of the subject in this State and of judicial authority in this country, leads to this conclusion: Every executive and judicial officer whose authority .and jurisdiction extends over the entire State — in whose official conduct the entire State is concerned — and whose office was created by the Constitution, or created by statute and filled by election by the people at large, is removable by impeachment or by the Governor on the address of the General *477 Assembly or by conviction of embezzlement or of appropriation of trust funds and in these modes only. All other officers are subject to removal under the provisions of the statute law of the State or under the common law where that is applicable.
The Constitution of 1790 provided that “the Governor, Lieutenant Governor and all the civil officers shall be liable to impeachment.” Article V, section 3.
To remedy the inconvenience of the removal of local officers by impeachment and to dissipate all doubt as to whether they could be removed otherwise, in 1828 the impeachment article of the Constitution of 1790 was amended as follows:
Section 4. “All civil officers, whose authority is limited to a single election district, a single judicial district, or part of either, shall be appointed, hold their office, be removed from office, and in addition to liability to impeachment, may be punished for official misconduct, in such manner as *478 the legislature, previous to their appointment, may provide/'. The same provision is found in the Constitution of 1865.
Under this amendment of the Constitution of 1790, the General.Assembly, by the statute of 1839, provided for the removal by the Governor, after indictment and conviction of official misconduct, of “any public officer hereafter to be elected or appointed whose authority is limited to a single election or judicial district.” (6 Stat. 390.)
Although the Constitutions oí 1790 and of 1865 were supplanted by that of 1868, this statute has remained a part of the law of the State, and with insignificant verbal change, is now embodied in section 388 and the first sentence of section 389 of the Criminal Code. Thus we find a legislative declaration running from 1829 to a very late day that “officers whose authority is limited to a single election or judicial district” may be removed without impeachment. The validity of sections 388 and 389 of the Criminal Code and of trials thereunder of a magistrate and a probate judge was recognized in
State
v.
Tarrant,
24 S. C. 593;
State
v.
Green,
52 S. C. 520,
Not only so but this line of cleavage on the subject of removal from office between local officers and all officers having jurisdiction over the entire State has been followed in many other statutes, enacted at various times through the course of many years. Among these are section 381 of the Criminal Code for the removal of any county officer, section 383 for the removal of clerks of court, sheriffs and magistrates, sections 395 and 403 for the removal of sheriffs, section 410 for the removal of magistrates, section 416 for the removal of constables, and section 393 for the removal of solicitors.
This apparent legislative construction, though not binding on the Court, is entitled to great consideration. It was departed from, but to a very limited extent, in
State
v.
Ansel,
76 S. C. 395,
But there is no reason to depart from the rule recognized and followed in the entire history and scheme of legislation on the subject to the extent of holding that offices created by the General Assembly and filled by election of the people at large do not fall within the class whose incumbents are removable by impeachment. On the contrary, when the people at large have chosen by election an officer charged with duties affecting the interests of the entire State, such an officer is responsible to all the people, and there are the' strongest reasons why the commission received from the people should not be annulled by removal, except in the solemn method of an impeachment trial before-a body representative of all the people. It would be an unwarranted, not to say arbitrary, stretch of judicial authority to hold that such an officer is not embraced in the constitutional description “all other executive and judicial officers.”
The few precedents on the subject indicate perplexity of the Courts, but they also indicate approval of the line between impeachable and nonimpeachable officers which we
*480
have stated. The Ship reme Court of Massachusetts, construing a clause of the Constitution providing for impeachment proceedings “against any officer or officers of the Commonwealth,” held that it was not intended to apply to local offices created either by the Constitution or the statutes, but to “officers elected by the people at large, or provided for in the Constitution, for the administration of-matters of general or State concern.” Opinion of the Justices,
The Constitution of Wyoming provided for impeachment of the “Governor and other State and judicial officers.”
In
State
v.
Grant,
We conclude that magistrates are not such judicial officers as are removable under the impeachment article of the Constitution, but are removable in such manner as the General Assembly may provide.
In addition to this both the Constitution and the statute law of the State, by necessary implication, have denied the Governor the unconditional power of removal by conferring the power of suspension and the power of removal of those whom he has appointed to fill vacancies. Section 22 of article IV confers on the Governor the power to suspend an officer having the custody of public funds when it appears to the governor that such officer is probably guilty of embezzlement and a true bill has been found, but in such case the suspension is at an end if the officer is acquitted, and removal follows the suspension only in the event of trial and conviction. This clearly shows that even for the highest official crime' the Governor has only the pówer of suspension, and certainly implies that he shall not have the power of removal at will.
*483 Kerr, having been appointed by the Governor and confirmed by the Senate, was not filling a vacancy by appointment of the Governor, but was serving a full term. Section 625 of Civil Code authorizes the Governor to remove for cause an officer appointed by him to fill a vacancy, and thus negatives the intention to confer on the Governor the power to remove an officer holding for a full term.
But aside from all other considerations, section 982 of Civil Code is conclusive against the power of the Governor to remove a magistrate serving a full term, at his discretion, without the approval of the Senate. That section provides: “Such magistrates may be suspended by the Governor for incapacity, misconduct or neglect of duty; and the Governor shall report any suspension, with the cause thereof, to the Senate at its next session, for its approval or disapproval.” The difference between suspension and removal is evident to all men; one is the mere temporary withdrawal of the power to exercise the duties of an office, the other is a complete and final deprivation of official tenure. 29 Cyc. 1405;
Sumpter
v.
State,
Consideration of the Constitution and the statute law of the State forces the Court to these conclusions:
First. The Governor has no power to remove magistrates serving for a full term, except after trial and conviction as provided by the Constitution and the statutes referred to.
Second. The Governor has power to suspend such magistrates, when a showing has been made to him by affidavit that the magistrate is probably guilty of embezzlement and a true bill has been found.
*484 Third. The Governor has the power of suspension also for incapacity, misconduct, or neglect of duty, subject to the requirement that he should submit the suspension to the Senate at its next session -for its approval or disapproval.
Fourth. The attempt of the Governor to remove Kerr without indictment and conviction, as provided by law, was without effect as a removal.
But the question remains, can any effect be given to the Governor’s- order, designed as a removal, by giving to it the lesser effect of a suspension for the misconduct, imputed by the Governor, of failing to make monthly statements to the auditor and treasurer of the county?
The presumption is that the chief executive, in the exercise of the powers of his great office, acts with a view to the public interest, and, therefore, the Courts should give effect to his acts to the utmost extent that they are authorized by law. The attempt to remove under this principle, might be given effect as a suspension of Kerr from office from 21st of March, 1911, when the Governor undertook to remove for cause, until the adjournment of the Senate at its next session in 1912; but section 982 of Civil Code expressly provides that the Governor shall report the suspension of an officer to the Senate at its next session for its approval or disapproval, and the suspension of Kerr was not so reported to the Senate. In addition to this the Senate expressed its refusal to approve Kerr’s suspension by passing a joint resolution that Kerr wás entitled to the salary of the office after the attempted removal. Aside from all this,, however, we have reached the conclusion, after much consideration, that the attempted removal cannot be given the effect of a suspension because Kerr was not first notified and given an opportunity to be heard 'on the charge of misconduct.
■ The power of suspension is conferred in this clause of section 982: “Such magistrates may be suspended by the Governor for incapacity, misconduct ór neglect of duty; and *485 the Governor shall report any suspension, with the cause thereof, to the Senate at its next session, for its approval or disapproval.” The power is not intended for arbitrary exercise, but is conditioned on a finding by the Governor of incapacity, misconduct or neglect of duty. It is true that a public office is not property, and an incumbent has no legal cause of complaint when suspended or removed, even without reason, under a power to suspend or remove at will conferred by law. . Such a suspension or removal .implies no condemnation, for under such provisions of law changes in public office are common ■ for reasons which in nowise reflect on the person suspended or removed. But under a statute like this, conferring on the Governor the power to suspend a magistrate, for incapacity, misconduct or neglect of duty, suspension implies that the Governor has by careful investigation ascertained the fact that the officer is incapable, or has been guilty of misconduct or neglect of duty. When it is remembered that the Governor, to whotn the law has entrusted the power to suspend an officer; is presumed to act with • fairness and sedate judgment, it becomes evident that the suspension by him for misconduct is a most serious condemnation. The Court cannot impute to the General Assembly the intention to subject an officer to such a condemnation without notice and an opportunity to be heard, for the intention to preserve the right to. be heard before condemnation is implied in all legislation unless it is expressly denied.
Under statutes like this conferring the power of
removal
the right to be heard under the principle we have stated has been upheld by the Courts with little dissent. The authorities on the subject, both English and American, are too numerous for citation. Elaboration of the principle referred to and the authorities will be found in
Trainor
v.
Wayne County Auditors
(Mich.), 15 L. R. A.
95
note;
State v. Hewitt
(S. D.), 16 L. R. A. 413;
23
Am. & Eng. Enc. 436;
29
Cyc. 1409. It is true, as we have- already
*486
pointed out, that removal is a permanent deprivation of office, while suspension is only a temporary deprivation; but, on the other hand, suspension is in some respects more serious than removal since the officer suspended must remain in uncertainty as to his future. It is also true that the public interests sometimes require that an officer should be quickly suspended, but even in such emergencies the present facilities of communication make possible notice and hearing before suspension, without detriment to the public. Stronger than all other considerations, however, is the fact that the General Assembly might have conferred on the governor the power to suspend at will for any cause he thought sufficient, and that power could have been exercised without notice and hearing; but it chose to withhold that power; and the limitation imposed on the power of suspension connotes the condition that it shall be exercised only after notice and hearing. There is little authority on the right to notice and hearing before
suspension
from office, but in
State
v. Johnson,
Our conclusion is that the attempted removal of Kerr from the office of magistrate was without effect and that he is now, and has been since his confirmation by the Senate, a lawful magistrate of Greenwood county and that he, and not McDowell, is entitled to the salary.
The judgment of the Court is that the petition be dismissed.
Dissenting Opinion
dissenting. I cannot concur in the opinion of the majority of the Court en banc. The question that the Court is called upon to decide is whether or not ME. McDowell is entitled to demand payment of his salary :as magistrate.
I am of the opinion that Mr. Kerr is a suspended officer. Whether he was justly or unjustly suspended is beside the question.. Mr. McDowell having discharged the duties of the office by commission from the Governor pending the suspension of Mr. Kerr, he is at 'least a de facto officer, and I think he should be paid the salary for his services while so acting'. The. fact that the General Assembly made provision for paying a salary to Mr. Kerr also pending his suspension does not change the status of' the parties. I therefore dissent. -
Dissenting Opinion
dissenting. I dissent on the following grounds: First, for the reasons stated in the opinion herein, of Mr. Justice Watts, reported in 90 S. C. 400, *487 and second, because the petitioner is entitled to his saláry from the date of his appointment,'until the'adjournment of the Senate in 1912, for the reasons stated in the case of Elledge v. Wharton, 89 S. C. 119, especially as a joint resolution was adopted by the General Assembly, at its session commencing the 9th of January, 1912, requiring the county supervisor of Greenwood county to draw his warrant for each month from January 1, 1911, for twenty-nine dollars and sixteen and two-thirds cents monthly salary, in favor of W. H. Kerr, till the expiration of his term of office as magistrate, and directing the treasurer of said county to pay said warrants. There is no difference in principle between that case and the one under consideration.
Dissenting Opinion
dissenting. The pleadings and facts are fully set out in the opinions filed, in the case heretofore on February 2G, 1912, 90 S. C. 400. Mr. Kerr made answer as required by the Court and denies the right of the Governor to remove him and claims that he was duly appointed and commissioned on January 27, 1910, by the Governor of this State magistrate at Greenwood for the unexpired term of W. G. Austin, deceased, and until his successor was appointed and qualified, and denies that any one has been legally appointed as his successor. I adhere to the views expressed in my dissenting opinion herein, and am of the opinion that Kerr’s term of office expired when the General Assembly adjourned in 19.11, and there was a vacancy in the office then and the Governor had. the right to and did fill it and that the petitioner was both de jure and de facto magistrate from the date he was commissioned until the Senate failed to confirm him in 1912, and 'entitled to pay for his services, and even if he was not de jure the magistrate, but only de facto being commissioned and rendering services as such he would be entitled to be paid for his services, under Elledge v. Wharton, 98 S. C. 113. I *488 think the petition should be granted and mandamus issued .in accordance with views indicated.