53 S.C. 161 | S.C. | 1898
The opinion o'f the Court was delivered by
The appeal will be better understood by a reproduction of the pleadings, with a statement of the case. This was a summaiy proceeding instituted by James R. McMillan against W. R. Bullock, to recover from his possession the books, records, seal, etc., belonging to the office of the clerk of the Court of Common Pleas and General Sessions for Abbeville County. The proceeding was commenced before his Honor, Judge J. C. Klugh, Judge of the Eighth Judicial Circuit, under the provisions of section 484 of the Code of Procedure.
The following affidavit was presented to Judge Klugh: The State of South Carolina, county of Abbeville. Personally appeared before me, J. R. McMillan, who, being duly sworn, says: 1. That at the last term of the Court of General Sessions for Abbeville County the grand jury of said county presented W.- R. Bullock to the Court for various misdemeanors in office, and among other things for forgery. 2. That thereupon a bill of indictment was handed to the grand jury by the acting solicitor, charging the said W. R. Bullock with forging certain pay certificates therein named, and said grand jury found a “true bill” on said indictment. That thereafter, to wit: on the 5th day of March, 1898, as deponent is informed by the governor of the State, and believes, the Honorable W. H. Ellerbe, governor of the State of South Carolina, issued an order suspending the said W. R. Bullock from the office of the clerk of the court for Ab-beville County, until his acquittal of the charges brought against him. That thereafter, to wit: on the 9th day of
Upon hearing this affidavit, his Honor, Judge Klugh, signed the following order: Upon hearing the affidavit of J. U. McMillan, stating that he has been appointed clerk of the Court for Abbeville in the place and stead of W. R. Bullock, suspended by the governor, and that the said W. R. Bullock has upon demand refused to turn over to the said J. U. McMillan the books, records, papers, and seal of said office, on motion of W. A. Barber, attorney general, and Wm. N. Graydon, attorney for J. U. McMillan, it is ordered: That the said W. R. Bullock do show cause before me at my chambers, at Abbeville C. H., S. C., on Saturday, the 19th day of March, 1898, at 11 o’clock A. M., why he should not be ordered to deliver the books, papers, records, seal, and office appurtenances of the office of clerk of the Court of Abbeville County, which are now withheld by the said W. R. Bullock from said J. U. McMillan, as clerk of the Court for Abbeville County. Bet a copy of this order be forthwith served upon said W. R. Bullock, by exhibiting to him the original, and leaving with him a copy of the same.
The commission of J. G. McMillan was produced and shown to the Judge, appointing him to succeed W. R. Bullock, until the said Bullock was acquitted by a jury, as was also the papers upon which the governor acted in making the appointment, which are as follows: South Carolina, county of. Abbeville. To Hon. James Aldrich, presiding Judge: The grand jury beg to make the following special presentment: The former grand jury investigated the office of the clerk of the court, and have taken testimony as to certain alleged misconduct on the part of said clerk, and which testimony has been submitted to our body. It appears that the said clerk, W. R. Bullock, has forged the name of Judge O. W. Buchanan to the following witness tickets: Emma Tench, five days attendance upon the Court in the case of the State, and upon which the said clerk collected the sum of $2.50; M. Childs, five days, and upon which the said Bullock collected the sum of $3.40. He also forged the name of Judge Buchanan to the following constable tickets: George Marshall, one day, $1.50; G. H. Moore, one day, $1.50. We hereby present the said W. R. Bullock for the forgery above mentioned, and give the names of Emma Tench, M. Childs, George Marshall, G. H. Moore, J. R. Blake, Jr., John Eyon, Frank Nickels, W. A. Calvert, Walter Miller, and B. S. Barnwell as material witnesses. We further beg your Honor to instruct the solicitor
To Hon. James Aldrich, presiding Judge: The grand jury beg leave to make thé following presentment: That they have examined and passed on all bills of indictment handed them by the solicitor. By committee we have visited the county poor house, and find the inmates well cared for, the buildings in good condition. -Also visited the county jail, and found everything in good shape. All magistrates, except J. R. Covin, have made their reports, and we find them correct, with all money turned over to treasurer, and taken receipts for same. All county officials have filed certified copies of all moneys received in their respective offices for the past year, except W. R. Bullock, clerk of the court. We recommend that he be required to do so at once. We find the clerk of court to be due the county the following amounts: $25 balance on circus license; $85 rent for court house; $30 fine of Ed. Turner; $50 fine of Ed. Simkins. We recommend that this money be turned over to treasurer. We recommend that in future the court room be not used for theatricals or shows. We have been unable at this time to make a thorough investigation of all the offices, but with the aid of an expert we hope to make a thorough examination, and report at June term of Court, if your Honor will grant us the privilege of deferring the matter until that time. The attention of the grend jury had been called to certificates being paid without the signature of the Judge, certified to by W.'R. Bullock, paid by J. R. Blake, accepted by John Ryon and cancelled. We recommend that these
Also an order, passed by Judge James Aldrich, by and with the consent of the attorneys of W. R. Bullock, turning over the indictment, presentment of the grand jury, or when the same affect the said W. R. Bullock, to M. F. An-sell, Esq., as solicitor. Also the correspondence had by the solicitor, M. F. Ansell, Esq., with his Excellency, Governor W. H. Ellerbe, touching the indictment for forgery found against W. R. Bullock by the grand jury for Abbeville. Also a report made by the committee appointed by the grand jury from their own body to M. F. Ansell, Esq., as to their examination of the office of auditor for Abbeville County, in connection with W. R. Bullock as clerk, and also the supervisor’s office. They reported that they “find that the clerk has made no report to that office of fines and licenses collected by him, nor filed any report of the January term at all, and not until December of the previous Court. We find on the treasurer’s books that since the report of the grand jury to the June term of the Court in 1896, when a balance of his books was made up to the last of May, that he has paid up to the present time $83 for licenses and $343 for fines collected by him since the balancing of the books at that time. From receipts and other evidences, we find that he has collected since that time $108 for licenses, $430 for fines, and $30 for rent of court room, showing a balance of $134 not accounted for at all; and of the sum paid, at least $150 was not paid until eight months after it was collected. In the clerk’s office we could fiud no record or book of any description in which is kept the amounts received and paid out by him, and we are not sure, but there may be other fines, licenses or rents unaccounted for. We found his office in some respects not properly kept, and books and papers hard to find, and he himself was unable to produce some of the books and papers requested by us in our examination of his office, and we judge from his conduct, while we were making this examination,
After argument of counsel, and after considering the merits of this application in so far as they were involved in the conclusion reached, his Honor, Judge Klugh, granted the following order: This is an application to me for an order requiring W. R. Bullock to deliver to James L. McMillan the books, papers, records, seal, and office appurtenances to the office of clerk of court for Abbeville County. On the 16th day of March, 1898,1 issued an order requiring the said W. R. Bullock to show cause before me, on the 19th day of March, 1898, why the said order should not be granted. The respondent made return to said order before me to-day. After hearing argument of Frank B. Gary and Ellis G. Graydon, attorneys for the respondent, and Hon. C. P. Townsend, assistant attorney general, and William N. Graydon, attorneys for the relator, I am of opinion that the application for such order, which is based on subdivision 2 of section 434 of the Code of Civil Procedure, is premature and cannot be considered until there has been a judicial determination that the person making such application is entitled to the office, the books, papers, &c., which he seeks to obtain. It is, therefore, on motion of Frank B. Gary and Ellis G. Graydon, attorneys for respondent, ordered, that the application for an order requiring the said
Within ten days from the date of this order the plaintiff gave notice of his intention to appeal to the Supreme Court, and within the time allowed by law served his case and exceptions as follows: I. Because it was error in Judge Klugh to hold that the application was premature. II. Because it was error in Judge Klugh to hold that the application could not be considered until there had been a judicial determination that the person making such application was entitled to the office. III. Because it was error in Judge Klugh not to consider the application on its merits. IV. Because it was error in Judge Klugh to dismiss the proceeding on the ground of want of jurisdiction. Wm. A. Barber, Wm. N. Graydon, appellant’s attorneys.
Respondent’s notice: Take notice that upon the hearing of the appeal in the said case in the Supreme Court, the respondent’s attorneys will move to sustain the order of his Honor, Judge Klugh, on the following additional grounds, to wit: Hirst. Because the said James R. McMillan did not establish a clear prima facie right to the office, and, therefore, an order directing the said Bullock to turn over the books, &c., of the said office to the said McMillan would have been improper. Second. Because the papers and the return upon said application showed that W. R. Bullock was and is in possession of the office of clerk of court for Abbeville County, under and by virtue of an unexpired commission from the governor of the State, that no indictment for embezzlement has been given out against him, and no true bill upon such charge has been found by the grand jury; that it was, therefore, beyond the power of the governor to suspend the said Bullock, and it would have
As to the fourth ground of appeal, we think Judge Klugh was right in holding that the application failed to disclose the existence of facts essential to confer jurisdiction upon him to hear it. We hold that the application must disclose existence of every requirement of the Constitution, as we have herein pointed them out.
If Judge Klugh was without jurisdiction to hear the application, it is needless for us to consider appellant’s third ground of appeal as well as those submitted by respondent.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.