*1 no circumstances a refusal amend. While a justifying kind is addressed to discretion motion of this the sound court, en the trial “this does not trial an judge give free hand in what be termed mat tirely might discretionary Co., North Carolina Mutual Insurance ters.” Page Life In that case an 35 S. E. 718. 207 S. C. (2d) also an amendment was reversed. This was order refusing Plowden, 60 S. E. in Mack v. (2d) done The order the amendment and the decree refusing grant- are reversed. The case is remanded divorce respondent ing in accordance with the views here- for further proceedings before the with leave move appellant in expressed, down within after remittitur twenty days goes Court her her answer and cross- to amend for an order permitting complaint. Legge JJ., J.,C. Taylor, Moss,
Stukes, concur. THOMPSON, Plaintiff, JOHN I.
STATE ex rel. G. HASKELL CAROLINA, Defendants SEIGLER and STATE OF SOUTH (94 (2d) 231) S. E. *2 Callison, General, T.
Messrs. C. James S. Ver- Attorney ner, General, McLeod, Assistant and D. R. As- Attorney General, Columbia, sistant all of Mc- Attorney Jefferies, Walterboro, Leod Unger, Resрondents, & *3 Moorer, Walterboro, M. Esq. I. Plaintiff, 23, 1956. August
Taylor, Justice.
This case jurisdiction of original this Court con- cerns the anof order of validity Bell Tim- George merman, Jr., Sheriff G. suspending Haskell Thompson *4 Colleton from office the County until said is ac- Thompson of the in an quitted contained charges indictment the by Jury Columbia, Grand the S.U. District Court at South Carolina.
Plaintiff, Sheriff, the suspended contends: A constitutional officer can the (1) by Gov- suspended ernor in the only manner the provided by Constitution. The act of the General (2) Assembly under which the order of was issued denies to him due suspension process and of the law. equal protection The act of the
(3) General under which the Assembly order of was issued does not when such apply is in indictment the Federal Courts.
On the Honorable Bell Timmer- George June man, Carolina, Governor of South Jr., Executive Order G. Haskell suspended then Sheriff of Thompson, Colle- ton from the County, office of Sheriff of County Colleton and in his stead I. appointed until the Seigler said G. John Haskell should be Thompson acquitted indictments found him the of the against Grand United States Jury Court 4, 1956, 5, 1956, on and him with charging inter- June June awith Federal Grand and fering with violation of the Juror Internal Revenue Laws of the United States. Liquor 3, 1956,
On on the July basis the summons and com- in an action entitled State ex rel. Haskell plaint G. Thomp- son, I. v. John Plaintiff, Defendant, in Seigler, the absence Circuit, in Fourteenth Honor, His Judge William Grimball, H. issued an order and restraining enjoining defendant, I. from Seigler, exercising any duties John of the officeof Sheriff Colleton under said County Execu- tive Order datе, wit, 3, 1956,
On the same on the July basis of the summons the case of The State complaint South Callison, General, ex rel. C. Carolina T. on Attorney of John I. v. Haskell Seigler Thompson, G. Complaint in the absence of the of the Fourteenth Circuit Judge from Circuit, Honor, Brailsford, His M. Jr., issued James rule to show cause the said G. Hаskell requiring Thompson to show cause he turn should not over I. why Seig- John books, ler the office Sheriff Colleton County, records and thereto. papers, equipment appurtenant motion of counsel for Upon and the plaintiff Attorney on General July passed Court an order assum- *5 120 causes, the all of further jurisdiction staying
ming original in for thе Court of Common Pleas Colleton- proceedings further order of this in effect until Court County, keeping Grimball; H. issued William mak- by the injunction Judge a defendant the first party the State of South Carolina ing the v. de- Thompson Seigler requiring entitled action the merits the first entitled action on fendant to of plead 16, before or July issued under an of
The order of act the Gen- suspension at St. eral March 49 Assembly approved Large, 1841, as follows: reads p. who in any or officer is indicted court county
“Any Governor, the in the discretion of be sus- may, for crime any Governor, in of who event shall the by suspension pendеd he shall in his until be In acquitted.- another stead appoint be vacant the office shall declared case conviction filled as law.” the vacancy provided by 4, 4, 22, 5, 15, 1 Article and Article Sec. Article Secs. 3, 27 of the South and Article Sec. Carolina Consti- Sec. removal, all or refer tution disqualifi- officers, of Article Sec. 27 wording cation public being: for or
“Officers shall be removed misconduct incapacity, law,- in such manner may provided by duty, neglect in or is no mode trial removal Con- provided when stitution.” are Assembly General plenary
The powers it may the constitution and enаct from acquired or clear as is not expressly impli- such legislation It does not have such the constitution. cation prohibited by term, abolish, its as to vary constitutional office control office, mode such remove different of filling prescribe for such action unless authority the office holder suspend However, it may provide found the Constitution. or re- officers as fail to meet standards of such Welch, 209 S. C. Moseley Constitution. quirements 133; Marsh, 39 S. Taylor (2d) *6 606; Co., S. County Jasper E. 220 (2d) S. C. Beaufort 469, 421; McMillan, S. E. Caldwell v. 224 (2d) S. C. 150, E. 77 S. 798. See also West’s (2d) Constitu- Digest, Law, tional
Plaintiff relies
State ex rel.
strongly upon
Huckabee v.
87,
436, 437,
103 S. C.
87 S. E.
Hough,
whiсh was based
Bullock,
161,
McMillan v.
860,
53 S. C.
31 S. E.
upon
in
which the
then
Statute
under consideration was held to be
however,
unconstitutional;
in
the
its
Court
used the
opinion
which is
here:
.following language
apropos
“The
here
power
given
for the
provide
removal of
officersfor the
it,
causes
carries with
sрecified
by implication,
for the
power
provide
of a
temporary
so
filling
vacancy
otherwise,
can,
created
or
by appointment
until the office
in
course,
due and
be filled in the
regular
manner prescribed by
Constitution,
the
it
unless
is otherwise
in the
provided
Con
stitution, because it wоuld not be reasonable to conclude that
it was intended that the office should remain vacant. State
Bowden,
rel. Lyon] v.
C.
92 S.
The office Sheriff aiid Constitution of 1895 30 of the Carolina South VII, Article thereto reveals that further reference of officers of charitable and with removal 8 has to do Sec. XV, 4 refer to im 3 and Article Sections institutions. penal the address of two-thirds of and removal upon peachment sections and these have Assembly each house General Sanders, Sheriffs, ex rel. State no reference to Wolfe ex Richards v. Ballen 808; rеl. 498, 110 E. C. S. S. 66 A. L. R. 574. How tine, 150 S. authority for the that ever, case proposition the Ballentine Assembly the mode providing of the General under an act removal, have the to remove a may Sheriff, the Court stating: *7 section makes no for the removal this
“Certainly of sheriff a miscon- charge ‘incapacity, of a upon general 3, duct, referred tо in article 27. It of or neglect duty,’ § a of upon particular for a special proceeding charge provides misconduct, or trust The the embezzlement funds. public to the immediate direct prosecution required officer, true bill to and a found upon being the offending another, until the him aсquittal and appoint suspend the office his conviction shall be de- officer charged. Upon court, assume, and not we Gov- clared vacant (by be filled law. vacancy may provided by ernor), * * * Burnett, 469, 75
“In McDowell v. S. section, to said: ‘This the court to applies referring officers, including except the removal of all magistrates, but, the misconduct of embezzle- Governor; limited to being or ment, other forms of misconduct it has no to application * * * or neglect duty.’ incapacity not be clear, therefore, a would “It that as sheriff seems the address to removal upon or subject impeachment, cannot be article 15 Assembly, houses of the General both There being, for his removal. said to have made provision ** * in this then, of trial or removal provided ‘no mode Constitution1 the removal of sheriff for the offenses named in article the method of removal is left to the § ** General Assembly From the it is seen that the foregoing Constitution has no mode for removal of sheriffs for provided incapacity, Hence, misconduct or such duty. be neglect may which done provided by legislature, was the act in dated March 1956 within the question framework of Ill, Art. Sec. 27 of the South Carolinа Constitution of 1895 and incident to temporary suspension being step re- moval is in the implied removal.
Plaintiff also contends that the Act inis violation of Arti- I, cle Sec. which states:
“The and immunities of citizens of this privileges and of the United States under this Constitution shall be life, nor shall abridged, any person deprived liberty without law, due nor property process shall any person be denied the of the laws.” equal protection
The order of can in no wise be said deprive sheriff of his life or suspended and the liberty office holder no vested in the acquires property right office as
“It is held that while gеnerally public officers civil service have which will employees rights be pro- tected those against infringement, are not rights vested the state and federal con- property rights protected by *8 stitutional the of against without provisions taking property law; due of and the rule the by proсess supported great of is that office authority weight public government em- thereof, and the emoluments are not within ploy, property the the sense of constitutional of due guaranties process S., Law, 600, law.” 16-A. C. Constitutional 705. p. § J. The Governor without notice so may suspend long Burnett, McDowеll as he does not act v. arbitrarily, 469, 873; Daniel v. 75 S. E. Citizens & Bank, 384, 696; Nat. 182 185 E. Southern Ga. S. Jones State, 261, 56; 104 149 S. W. Wilson State North Ark.
124 Carolina, 586, 435, 865, 42 L. Ed. see U. S. 18 S. Ct. Officers, there- Public and the annotations also 43 Am. Jur., 242-244 of which states under. Sections respectively: of an as action is not arbitrary, “So long suspension misconduct, so to tie his hands offiсer his trial for as pending seems to be universally for the time fair being, accepted The is con- and often necessary. power suspend generally cause, in since sidered as included power is less severe measure. suspension merely disciplinary exists, to remove at will or at But wherе the power pleasure is not neces- it has been observed that power suspend Moreover, the and does not exist. indefinite sary suspension is not considered as within the of a officer without pay public * * * of removal. general power “Notice and are not hearing prerequisite suspension statute, and a without unless such by suspension required notice does not the officer of without due property deprive is a in due of law. Nor process suspension wanting process of law or as a denial laws be- equal protection the officer is the evidence nоt and he produced cause against his is not an to confront accusers and given opportunity examine the witnesses.” cross
The does have unlimited of re power of officers whose terms are fixed by moval law or the indefinite and his arbitrary power this Dacus v. discretion to review Court. John subject is However, ston, 185 S. where S. C. suspen sion is within the of Article Sec. as to contemplation misconduct or as authorized duty incapacity, neglect the Act of March and neither nor indefi arbitrary nite, for the exercise of it is where made proper the interim. power contends that the act contravenes the
Plaintiff also pro- III, visions of Article Sec. South Carolina Consti- as follows: tution of which reads in two vested branches. The legisla- “Legislative power shall be vested in two distinct tive
125 branches, one to be the ‘Senate’ styled and the other the ‘House of and both Reprеsentatives,’ the ‘General together ” of the State of Assembly South Carolina.’
We to are unable with agree the contention that the act is an unconstitutional delegation to legislative power Federal or Government that of sister state. The to Governor, with the suspend reposes the Grand Jury, whether Federal, it be no and legislative powers are thereby delegated.
Every will be made in presumption favor of the con- stitutionality act and legislative a statute if pos- sible will as construed so to render it valid. It will be declared unconstitutional where its only invalidity appears sо leave no to room for clearly reasonable doubt that it is in some violation of of the Constitution. Santee 122 Mills v. S. C. Query, 202; S. E. Moseley Welch, McMillan, supra; Caldwell supra.
For the we foregoing reasons are of the opinion that the Act the General Assembly heretofore referred March 1956 is not approved to the repugnant Constitution State and that Executive Order No. 14 of the Governor Sheriff suspending Thompson rea- being within the of Article sonably provisions Sec. 27 of the Constitution for South which Carolina for provides misconduct or is valid. incapacity, neglect duty That should be dismissed and the complaint possession office of Sheriff Colleton County with rec- together ords thereof should be turned over the Sheriff designate forthwith; I. it is so ordered. Seigler John Legge Moss, C. concur. J., JJ., Stukes, J., dissents. Oxner, (dissenting).
Oxner, Justice Act, The St. at under which Large, p. Sheriff Governor, was removed authorizes the Thоmpson his dis- cretion, trial, without a hearing, suspend, pending “Any *10 for any is indicted court any officer who
State or county crimes without re It to all applies crime”. mine.) (Italics of such I not think the delegation do striction or limitation. In Car South can be sustained. a broad and sweeping Harbin, Department State Highway olina with we following ap E. quoted 86 S. (2d) : proval “ of an constitutionality are considering ‘When courts which the act, into consideration things should take they an administra- not what action act affirmatively permits, ” Northern Cedar Co. take.’ may may tive officer French, 230 P. 843. 131 Wash. not act arbitrarily an officer will that
“The presumption cannot sus- faith good sound judgment but will exercise 42 Am. Jur., discretion.” of unregulated tain a delegation Law, Section Administrative Public that the far-reaching The Act further contains crime, conviction, any includes conviction in case which Governor and officeshall be declared vacant “the mine.) law.” (Italics filled as vacancy provided un- should declared It that this legislation view my constitutional. THOMAS, Respondent, v. JAMES JEFFCOAT
HARRY FULMER, Appellants LLOYD (2d) 240)
(94 S. E.