9 S.C. 156 | S.C. | 1877
The opinion of the Court was delivered by
This was an original proceeding, instituted in this Court by the Attorney General in behalf of the State to oust the defendant from the office of Solicitor of the First Circuit, upon the ground that he had “ vacated, surrendered and forfeited” his said office of Solicitor by accepting the office of Representative in the Congress of the United States. The facts in the case are all conceded, and are as follows: The defendant, on the 7tb day of November, 1876, was elected to the office of Solicitor of the First Judicial Circuit of this State for the term of four years, and, having duly qualified, was commissioned as such Solicitor on the 30th day of November, 1876, and thereupon entered upon the duties of his said office. That on the 7th day of November, 1876, the defendant was also elected to the office of Representative in the Congress of the United States for the Second Congressional District of this State for the unexpired term, to end on the 4th day of March, 1877, and on the 23d day of January, 1877, duly qualified and entered
It is contended, however, that by the express terms of the Constitution of this State this rule of the common law has been abrogated, and that there is nothing to prevent one from holding at the same time two incompatible offices in this State. The provisions of the Constitution which are relied upon to support this proposition are Section 31, Article I, declaring that “ every inhabitant of this Commonwealth possessing the qualifications provided for in this Constitution shall have an equal right to elect officers and be elected to fill public office,” and Section 7, Article VII, declaring that “ every person entitled to vote at any election shall be eligible to any office which now is, or hereafter shall be, elective by the people in the County where he shall have resided sixty days previous to such election, except as otherwise provided in this Constitution or the Constitution and laws of the United States,” read in connection with various other Sections in which officers of the three great departments of the government — legislative, executive and judicial — are
From these provisions it is argued that as the Constitution has declared every person entitled to vote eligible to any office elective by the people, with the exceptions above specified, that it necessarily follows that unless the person in question comes under some one or more of the exceptions named that his right to hold any office cannot be questioned, and the fact that he holds one office is no bar to his holding any other office, because, if it were, another qualification, not prescribed by the Constitution, would be added to those required by that instrument. One defect in this argument is that it assumes that the word “any,” in the seventh Section of Article VIII, means all, every, or any two or more, or something equivalent thereto, and that when the Constitution declares that a person possessing certain qualifications is eligible to “ any” office it means that he is eligible to all or at least any two or more offices at the same time. This construction does not seem warranted by any rule that we have been enabled to apply. A more serious objection, however, to this argument is that it fails to distinguish between the qualifications required for holding an office and those required for election to office. It is very manifest that the two things are entirely
Again, it is argued that whilst there is no provision in general terms restricting the right declared by Section 31, Article I, and Section 7, Article VIII, to a single office, there are several exceptions limiting the right to hold more than one office in particular instances, as appears by the various Sections above cited, and that under the maxim expressio unius exclusio alterius, the construction must be that in all but the particular instances named the right to hold two offices at the same time is guaranteed by the Constitution.
This argument, besides ignoring the distinction above pointed out between being eligible to office and holding an office, proceeds upon the assumption that the words “ except as otherwise provided in this Constitution” relate only to cases in which certain officers, viz., those of the great departments of the government — -legislative, executive and judicial — are prohibited from holding more than one office at the same time ; whereas it seems to us to be the proper construction that those words should rather be applied to those causes which are declared by the Constitution to constitute ineligibility for any office, e. g., atheism, dueling, embezzlement, unsoundness of mind, confinement in alms house or prison.
In reference to the argument drawn from the maxim expressio unius exclusio alterius, we find, in the same Section from which it is cited, (1 Story on Const., § 448,) that the distinguished author advises caution in the use of such maxims in construing the Constitution. Pie uses this language: “These maxims, rightly understood and rightly applied, undoubtedly furnish safeguards to assist us in the task of exposition ; but they are susceptible of being applied, and, indeed, are often ingeniously applied, to the subversion of the text and the objects of the instrument. The truth is, that in order to ascertain how far an affirmative or negative provision excludes or implies others, we must look to the nature of the provision, the subject-matter, the objects and the scope of the instrument.
Now, looking “to the nature of the provision, the subject-matter, the object and scope of the instrument,” as we are advised by Judge Story to do, it seems to us much more natural to suppose that the framers of the Constitution, in the provisions relied upon.
The only remaining inquiry, then, is whether the offices of Solicitor and Representative in Congress are incompatible. It seems to be supposed that, in order to render two offices incompatible, there must be some such relation between them as that of master and servant — that the one must have “ controlment of the other,” or that the one must be charged with the duty of auditing or supervising the accounts of the other, or that the one must be chosen by or have the power of removal over the other. Now, while authorities have been cited to show that offices bearing such relations to each other have been held to be incompatible, they merely afford instances of incompatible offices, and do not furnish, nor do they pretend to furnish, definitions; and therefore it does not by any means follow that these are all the instances in which offices can be said to be incompatible. For example, the case of Rex vs. Jones, 1 B. & Adol., 677, (20 E. C. L. R., 467,) is cited apparently for the purpose of introducing what is called “a definition” of incompatible offices by Lord Tenterden. But it is apparent, not- only from the context, but from the very phraseology quoted, that his remark was not intended as a definition but merely as an instance or an illustration of what would be incompatible offices. The question in the case was whether the offices of Town Clerk and Common Councilman of the borough of Carmarthen were incompatible. The only ground upon which it was claimed that the two offices were incompatible was that the Town Clerk was required to keep minutes of the proceedings of the Common Councilmen, and it was held that “there is nothing inconsistent in one member of a body noting down the acts of the body.” In discussing the case Lord Tenterden uses the language cited: “Where different persons
In Rex vs. Tizzard, (9 B. & C., 418,) Bayley, J., gives still another instance of incompatibility, when he says : “ I think that the two offices are incompatible when the holder cannot in every instance discharge the duties of each.” By which he probably means that when the duties of the two offices are such that the performance of the duties of the one necessarily involves the neglect of the duties of the other, then the two offices would be incompatible. Turning to the cases in this country, we find that in Magil vs. Stoddard, (25 Conn., 565,) the office of Constable of a town was held incompatible with that of Justice of the Peace. In 3 Maine, 486, the Supreme Court of that State, in answer to the Senate, says “that the office of Justice of the Peace is incompatible with that of Sheriff, Deputy Sheriff or Coroner.” And in Stubbs vs. Lee, (64 Maine, 195,) reported also in 18 Amer. Rep., 251, the office of Trial Justice was held incompatible with that of Deputy Sheriff. It appears, therefore, that the books furnish us with other instances of incompatible offices besides those cited in the argument. What, then, does constitute incompatibility in offices ? In 5 Bac. Abr., Title Offices, K, we find the rule laid down, upon the authority of Lord Coke, in these words : “ Offices are said to be
Without considering in detail the various duties of the two offices, the briefest examination of some of these duties will be amply sufficient to demonstrate the propriety of the foregoing observations. Here are two offices held under two distinct governments; the duties of the one are to be performed in Washington, while those of the other are to be performed in this State. To perform the duties of the one the officer must be in Washington, while to perform the duties of the other he must be in this State, and that, too, at the very time when the duties of the other call him to Washington; for we are bound to know, judicially, that the sessions of Congress cover the same time as that appointed by law for the sessions of some, and, it may happen, of all the Courts of the First Circuit. The Constitution of the United States requires the one to be in Washington for a large part of the time, and at all
It has not been and will not be pretended for a moment that a member of Congress can perform his duties by deputy, nor do we think that it can be successfully contended that a Solicitor can, without special authority given by an Act of the Legislature, (and there is now no such Act) perform his duties by deputy. Indeed, in view of the provisions of Section 29, Article IV, of the Constitution of this State, declaring that “in all cases where an attorney for the State, of any circuit, fails to attend and prosecute according to law the Court shall have power to appoint an attorney pro tempore,” it may be doubted whether even the Legislature could confer such a power upon a Solicitor after the Constitution had conferred that power upon the Court, but this is a question which we are not now called upon to decide. It seems that the Congress of the United States has thought it neceásary, by special statute, to confer such a power upon the District Attorney, an analogous office to that of Solicitor, and in this State the Legislature by the Act of 1786-87, (Stat., 204,) specially authorized the Attorney General to appoint a deputy; and again upon the establishment of the District Court system a special clause was inserted in the Act, authorizing the Attorney General or Solicitor to conduct prosecutions in that Court by deputy. — Act of 1866, 13 Stat., 388.
This certainly warrants the inference that, without such special authority, such a power was not supposed to exist; and when we consider the nature of the duties incident to the office, requiring for their proper performance a high degree of skill and knowledge, and involving the exercise of the largest discretion, even in the gravest of issues, it is very obvious that the office of Solicitor is one of the highest personal trust and confidence, and that it does not belong to that class of offices in which the holder may appoint a ■deputy.' — -5 Com. Dig., Title Office, 56; 1 and 2 Jac. Law Die., Title Office, 251-2. We are, therefore, of opinion that the offices of Solicitor and Representative in Congress are wholly incompatible, and that the defendant by accepting the latter vacated the former office.
In accordance with these views judgment of ouster has heretofore been entered against the defendant.