STATE v. RHAME
Supreme Court of South Carolina
April Term, 1912. September 21, 1912.
92 S. C. 455
In addition to this, the physician testified that he attended Mrs. Gamble for this illness in November and December, 1909, whereas Mrs. Gamble stated in her application that she had not been attended by any physician since November, 1908.
For these reasons the case should have been submitted to the jury.
Reversed.
MR. JUSTICE WATTS disqualified.
MR. JUSTICE FRASER, dissenting. I cannot concur in the opinion of the majority of the Court in this case. I know it is not always necessary to allege fraud in order to prove it, but when fraud is alleged, it ought to be proved as alleged.
It seems to me that the fraud alleged here is the fraud of the insured and the proof abundantly shows that Mrs. Gamble knew nothing of the two fatal diseases with which she was suffering. I see no proof, so easy to have been made by the defendant, if true, that the plaintiff procured the insurance, whatever the probabilities may be.
8321
STATE EX REL. LYON, ATTORNEY GENERAL, v. RHAME, BANK EXAMINER.
GOVERNOR—OFFICERS—BANK EXAMINER.—Where a statute creates an office to be filled by appointment by the Governor, and fixes the term for which the appointee shall hold, but confers on the Governor no power of removal, he has no power under the Constitution, the statutes or the common law to remove him.
MR. JUSTICE WATTS and JUDGE GAGE dissent.
Parsons v. U. S., 167 U. S. 324, distinguished from this case.
Opinion of the Court.
Petition in the original jurisdiction of this Court by J. Fraser Lyon, Attorney General, for removal of B. J. Rhame from office of Bank Examiner. H. W. Fraser, the appointee of the Governor, was made a party on his motion.
Attorney General J. Fraser Lyon, for petitioner. No argument furnished Reporter.
Messrs. Stevenson & Prince, for Rhame. No argument furnished Reporter.
Messrs. B. L. Abney and Geo. L. Rembert, for Fraser. Mr. Rembert cites: The constitutional authority of the executive:
September 21, 1912. The opinion of the Court was delivered by
MR. JUSTICE WOODS. His Excellency, the Governor, on April 1, 1912, issued his proclamation, reciting acts and omissions which he characterized as neglect of duty by B. J. Rhame, State Bank Examiner, and declaring that he did thereby, for the imputed neglect of duty, remove Rhame from his office. Thereafter the Governor appointed H. W.
The first and main question thus raised is whether the Governor has power to remove from office the State Bank Examiner. The office of State Bank Examiner was first created by the act of 1896,
The question then comes to this: when a statute creates an office to be filled by appointment of the Governor and fixes the term for which the appointee shall hold, but confers on the Governor no power of removal, does the Governor, nevertheless, have the power of removal under the Constitution or the statute law of the State or under the common law?
Laying aside for the moment the Constitution and the statute law of the State, we consider the common law rule as established by judicial expression. Surely, men of common sense, learned and unlearned, would be surprised to find the law to be that when the legislative department has created an office to be filled by appointment of the Governor and extended and limited its term to four years, yet the governor could at will shorten the term by removal, although no power of removal has been conferred. Such executive power is denied by both reason and authority.
The Governor, as chief executive, has no prerogative control over officers such as is held by the king of Great Britain. The power of removal from office, therefore, is not an incident of the executive office and exists only where it is conferred by the Constitution or by the statute law, or is implied from the conferring of the power of appointment.
In Sanders v. Belue, 78 S. C. 177, 58 S. E. 762, this Court held that the absolute power of removal at pleasure is incident to the power of appointment, unless the law provides duration of the official term or mode of removal.
“The power given the mayor and aldermen is that of electing or appointing members of the board provided for by the act. In exercising this power they act as executives, as the appointing to office is an executive and not a legislative function. Having exercised this power by electing or appointing plaintiffs to the offices provided for by the act, and being neither authorized to remove such officers or to abolish such offices, created by a superior sovereignty, their power is exhausted, and they cannot remove plaintiffs, either directly or by abolishing their offices, so long as their terms are unexpired.”
These cases laying down the rule in this State that the power of removal is not incident to the power of appointment, where the extent of the term of office is fixed by the statute, and not subject to be shortened, are buttressed by unbroken authority in other jurisdictions. Avery v. Tyringham, 3 Mass. 177; People v. Robb (N. Y.), 27 N. E. 267; Reilly v. Chatfield, 71 Conn. 112, 40 Alt. 922; State v. Dahl, 140 Wis. 301, 122 N. W. 748; Bruce v. Matlock, 86 Ark. 555, 111 S. W. 990.
In People v. Robb, supra, the New York Court of Appeals says that the following provision of the Constitution of New York was an embodiment of the generally recognized rule: “When the duration of any office is not provided by the Constitution, it may be declared by law, and, if not so declared, such office shall be held during the pleasure of the authority making the appointment.” In Marbury v. Madison, 1 Cranch, 138, 2 Law Ed. 60, Chief Justice Marshall thus stated the general rule: “Mr. Marbury, then, since his
This rule was restated and recognized in McAllister v. U. S., 141 U. S. 174, 35 Law Ed. 693; Ex parte Hennen, 13 Peters 230, 10 Law Ed. 138; Reagan v. U. S., 182 U. S. 419, 45 Law Ed. 1162.
At the argument the case of Parsons v. U. S., 167 U. S. 324, 42 Law Ed. 185, was mainly relied on as completely overturning the rule stated, and laying down the rule that the power of appointment implies the power of removal even where the term of office is fixed by the statute which confers the power of appointment, and no power of removal is expressed.
The case does not bear that construction. On the contrary, the entire opinion of Justice Peckham rests on the argument that under the Constitution and statutes of the United States, the office of district attorney and like Federal offices fall without the general rule and are not controlled by it. The Federal statute provided: “District attorneys shall be appointed for four years and their commissions shall cease and expire at the expiration of four years from their respective dates.” After consideration of the powers bestowed by the Constitution on the President to remove officers, and an elaborate review of the acts of Congress, on the subject, the Court holds that the debates in Congress, the history of congressional action on the subject, and the statutes themselves show that four years was fixed as a limitation on a term which was at one time indefinite, and that in so limiting the term it was not the intention of the Congress to interfere with the President’s power of removal which he had when the term was
Thus it appears, we think, beyond controversy that the Parsons case is in nowise opposed to the rule that the power of removal is not an incident of the power of appointment if the length of the term is fixed by statute and no authority to remove is conferred by the statute.
Not only does the common law deny the power of removal as an incident of the power of appointment when the term of office is fixed by the statute and the power of removal not expressed, but the Constitution and statutes of the State strongly negative such a power.
The Constitution by expressly conferring on the Governor the power,
The statute law of the State by the strongest implication denies the authority to remove here asserted. Public officers are created for the benefit of the commonwealth, incumbents have no contract or property rights in them, and, unless it be otherwise provided by the Constitution, they are subject entirely to legislative control. Hence, subject to the Constitution, the General Assembly may fix the term, provided for removal, abolish the office, reduce the term, and in every respect control the existence, powers,
When a different policy was intended the tenure has been expressly stated to be subject to removal, as in the case of the dispensary directors and the election commissioners whose tenure was made subject to removal by the Governor,
The duties of the State Bank Examiner extend over the entire State, but he is not elected by the people at large, hence he is not an officer removable only by impeachment; for the rule was thus laid down in McDowell v. Burnett, ante, 469: “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 address of the General Assembly, or by conviction of embezzlement or appropriation of trust funds and in these modes only. All other officers are subject to removal under the provisions
Under this rule the General Assembly in creating the office of State Bank Examiner might have provided that the term should be four years subject to be shortened by removal by the Governor or on the happening of any other contingency. But it did not see fit to do so. The wisdom of legislative action is without the sphere of judicial inquiry. It may be that fixing the term of the office of State Bank Examiner rigidly at four years in the last statute, when by the earlier statute it had been fixed at two years subject to be shortened by removal, was an oversight; or it may be the change was due to an intention to make an officer, clothed with so much discretion and power and charged with such great responsibility in safeguarding, by his supervision, enormous public and private interests, entirely independent of any outside influence and removable only by a civil action under the Code of Procedure. These questions are not for us. The Court can only declare that under the law as it exists the State bank examiner is not subject to removal at the discretion of the Governor, and that the defendant, B. J. Rhame, is still State Bank Examiner.
This conclusion makes unnecessary the consideration of the other questions argued, and it is, therefore, ordered and adjudged that the petition be dismissed.
MR. CHIEF JUSTICE GARY. I concur in the opinion of Mr. Justice Woods, for the reason that the law does not provide for the removal of the State Bank Examiner by the Governor, as it does in the case of magistrates.
MR. JUSTICE FRASER disqualified.
MESSRS. JUSTICES HYDRICK and JUDGE T. S. SEASE, Acting Associate Justice, and CIRCUIT JUDGES PRINCE, WILSON, RICE, FRANK B. GARY and SPAIN concur.
Dissenting Opinion.
MR. JUSTICE WATTS, dissenting. I cannot concur in the opinion of Mr. Justice Woods in this case that the Governor did not have the power to remove Rhame as bank examiner and appoint Fraser in his stead. There is not the slightest doubt, in my mind, but that he had the power, both by reason and authority, and while the cases of Sanders v. Belue, 78 S. C. 177, 58 S. E. 762, and The State v. Ansel, 76 S. C. 395, 37 S. E. 185, are not exactly decisive of the precise point at issue, yet the inference to be drawn from these cases are that the Governor had ample and plenary power to remove any one appointed by him to office where there was no express provision to the contrary in the act creating the office. I cannot see how the created can be greater than the creator. I think, under the Constitution and statute law of the State, the Governor has the right to remove from office any one appointed by him to office where there was no express provision in the act creating the office to the contrary, for incapacity, neglect of duty, misconduct, etc. The Governor is charged with executing the laws and has the innate and inherent power to remove any appointee of his for failure to perform the duties of the office to which he has been appointed where the act creating the office is worded like the act creating the office of bank examiner in this case. The office of bank examiner is not, in my opinion, a constitutional office. It is one of immense importance and he has great powers for good and evil in looking into the banking institutions created under the laws of the State. The constitutional convention of 1895 was so careful to guard the interests of depositors in the banks that by a constitutional provision it discriminated against and increased the liabilities of the stockholders in banks more than the stockholders of any other institutions. Money is not deposited in banks alone by persons who are competent to manage their affairs, but a great deal is deposited there under the orders of Court, such as estate money, widows’ and orphans’ money, money in litigation,
Dissenting Opinion.
As to whether Mr. Rhame could be removed without a hearing, I do not think that question is properly here, as when the Governor called on him to explain, he contented himself with challenging the right of the Governor to remove him and he thereby waived his right to be heard.
I think the judgment of the Court should be that the defendant, Rhame, be ousted from office.
JUDGE GAGE, dissenting. I think the Governor had the power to remove the bank examiner.
If he had not, then in a supposed case, admitted to be flagrant, and touching the most sensitive interests of the people, the Governor, sworn to “take care that the laws shall be faithfully executed,” is powerless to execute them.
In such a case the examiner might accept from the banks bribe money; he might refuse to make any examination; he might be convicted of crime; and the Governor would be powerless to act.
Such a result ought not to be abided, except upon the plainest mandates of the law, and from which there is no escape.
The banks carry the arterial blood of the business world, it ought to reach the people quickly, free from taint of suspicion.
A broken bank is like a poisoned spring of water; it affects the whole community, stockholders and strangers; its evil effects last for a generation.
The risk of such a disaster ought not to be taken by that construction of the law which will promote bank failures.
If there is an officer in the State who needs to be kept closely at his work, and always on the alert, he is the bank examiner.
If the Governor is robbed of the power to exact such a performance by the examined, and if such exaction is necessary, who will do it?
The General Assembly only provided that the Governor shall appoint a competent person to examine the banks; the term of service was fixed at four years; no provision was made in the act, or elsewhere in the statutes, for the removal of such an officer.
The Constitution, it is claimed, limits the power of the Governor.
The section relied upon is found in the article on impeachments, and is section 4 of that article.
It is confessedly irrelevant to this case unless the bank examiner is an executive officer liable to impeachment.
It is inconceivable that an officer of that character, created under a general provision of the Constitution, should be subject to trial by impeachment.
Such a construction is calculated to bring the administration of law into ridicule.
The General Assembly evidently thought that the examiner might be removed otherwise than by impeachment; for in the first act on the subject, another mode of his removal was explicitly prescribed.
There is no reason to dogmatically classify every officer of the State as either executive or judicial; and if there was, the framers of the Constitution never intended that an executive officer like a bank examiner was subject to trial by impeachment; they only provided for the impeachment of such executive or judicial officer as were liable to that procedure. Nor did they intend that he could only be removed upon an address of two-thirds of the General Assembly, in the event there was not sufficient ground for impeachment.
When it has been once admitted that the General Assembly had the power which it undertook to exercise in section
The circumstance that the Constitution has limited the Governor’s power to suspend officers guilty of embezzlement (
But rather the contrary conclusion is inferable; the circumstances that his power was limited in particular cases implies that in other cases it was not limited.
This case is rather governed by
Reference there is made simply to “Officers,” not executive and judicial officers; and for any neglect of duty by them, wilful or not, they may be removed as the law provides; for the Constitution, they thought, in the article on impeachments provided no remedy, else why this.
It must be conceded that there is no statute “law” provided, and the law referred to includes the common law and must be governed by that law.
The issue, therefore, is this, if such an officer be confessedly guilty of a neglect of duty midway his term of office, is he exempt from removal by any power? For if not subject to this power, then to none. The question ought to furnish the answer.
Admittedly the power to be exercised by the Governor is not arbitrary, nor at will; it must be for cause, and cause will move any man from any office, any time.
The next issue is a mixed one of law and fact, and it is, has the Governor given the examiner a right to be heard before his removal?
Perhaps it was not such a hearing as Courts give litigants; but it was a hearing, and it would not be wise for the Courts to hamper the executive by set rules to govern him in his execution of the laws.
If injustice has thereby been done, it will be incomparable to that statement of the law which will paralyze all Governors in their efforts to preserve the fiscal institutions of the State.
Finally, in my opinion this cause is controlled by the case of The State ex rel. Rawlinson v. Ansel, Governor, 76 S. C. 395, 37 S. E. 185.
The dispensary commissioners were as much executive officers as is the bank examiner.
The Constitution and the statutes also made provision for them. It is true the statute provided that the Governor might remove them; but if the case was controlled by the Constitution, in the article on impeachments, that provision of the statute was of no force.
In that case Governor Ansel removed the commissioners, and his act was sustained.
I am of the opinion that H. W. Fraser is the lawful bank examiner of the State.