75 S.E. 880 (S.C. 1912), State v. Whitten

• Citation: 75 S.E. 880, 92 S.C. 409
• Opinion Judge: WOODS, J. GARY, C.J. WATTS, J.
• Party Name: STATE ex rel. LYON, Atty. Gen., v. WHITTEN.
• Attorney: Attorney General Lyon, for plaintiff. K. P. Smith and J. E. Breazeale, both of Anderson, for defendants.
• Case Date: September 21, 1912
• Court: Supreme Court of South Carolina

Page 880

75 S.E. 880 (S.C. 1912)

92 S.C. 409

STATE ex rel. LYON, Atty. Gen.,

v.

WHITTEN.

Supreme Court of South Carolina

September 21, 1912

"To be officially reported."

Quo warranto by the State, on the relation of J. Fraser Lyon, Attorney General, against S.E. Whitten, and against W. E. Green, and against W. T. Chamblee, and against J. A. Young. Judgment excluding defendants from the office of magistrate.

Attorney General Lyon, for plaintiff. K. P. Smith and J. E. Breazeale, both of Anderson, for defendants.

WOODS, J.

The complaints in these actions brought by the Attorney General in April, 1912, under chapter 2, tit. 13, of the Code of Procedure, allege that the defendants have unlawfully obtruded themselves into the office of magistrate, and ask as relief that the court will so find and adjudge that the defendants be excluded from office.

The material allegation in all the complaints is that each of the defendants is undertaking to perform the duties of magistrate under an appointment made by the Governor in the year 1911 after the adjournment of the Senate, and not confirmed by the Senate at its session of 1912. The complaints do not allege that there are any lawful incumbents of the offices whose terms have not expired, nor are any persons who may have held the office at the time the defendants were appointed before the court. The answer of the defendant, S.E. Whitten, is as follows: "(1) That he denies each and every allegation of the complaint not herein admitted. (2) That he was on February 23, 1911, by the Governor of the state of South Carolina duly appointed to the office of magistrate for Anderson county at Pendleton in said state and county, and that his commission as magistrate was issued to him by the Governor and attested by R. M. McCown as Secretary of State, and, upon being so appointed and commissioned, his predecessor in office voluntarily surrendered to defendant the office of magistrate at Pendleton, together with the books and records of said office. (3) That his appointment, as aforesaid, was made during a recess of the Senate, that body having adjourned sine die on February 18, 1911. (4) That until this action was begun defendant did not know whether or not his appointment as magistrate had [92 S.C. 411] been confirmed by the Senate, and did not know whether or not his appointment as magistrate was made without the recommendation of...