Becknell v. Waters
| Decision Date | 15 April 1930 |
| Docket Number | 12892. |
| Citation | 152 S.E. 816,156 S.C. 77 |
| Parties | BECKNELL et al. v. WATERS et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.
Action by C. N. Becknell and others against John G. Waters and others. From an adverse order, defendants appeal.
Affirmed.
The order of Judge Sease, appealed from, was as follows:
This matter comes before me upon a Rule to Show Cause why the County Board of Education for Spartanburg County should not be ordered to order the trustees of Switzer School District No. 41 to hold an election for the election of trustees for said school district, and why the trustees of said school district should not be ordered to hold such election for trustees for said school district.
It is conceded by the parties that the County Board of Education after the filing of the petition required by the Act approved February 8, 1929, adjudged that said petition contained the required number of petitioners, and on the 2nd day of April 1929, ordered the trustees of said school district to hold an election for trustees for said district.
The question, therefore, to be determined in this action is whether this Court should order the trustees to hold the election as directed by the order of the County Board of Education, and involves the construction of the Act of the General Assembly of the State of South Carolina, approved February 8, 1929 (36 St. at Large, p. 28), copy of which is as follows:
"John G. Richards, Governor."
The Return of E. C. Switzer and A. P. Walden, designated as trustees of Switzer School District No. 41, alleges that the Act of 1929 is unconstitutional; that they did not receive the order of the County Board of Education to hold an election until the second or third of April, 1929, at which time their term of office, under the said Acts of 1929, had expired, and by reason thereof they have no authority or right to hold an election or fix the time or place for holding the same, as directed by the statute; that no machinery for holding the election is provided for under the said Acts of 1929, and that no election should be held until the general election in 1930.
The Acts provide no election machinery for the conduct of the election nor for declaring the result of the same. It is apparent, however, that it was the intention of the Legislature that the trustees for all the school districts in Spartanburg County, except one, should be elected by the people, and if possible the Act must be given such construction to carry out such intention. It will be presumed, therefore, that when the Legislature provided no special election machinery for the holding of said election, that it was the intention of the Legislature that the said election should be held under the laws governing the holding of general elections and that the machinery provided for general elections should be available for the holding of the election of trustees under said Act.
I have not been convinced that the Act has been shown to be unconstitutional beyond a reason doubt, and for this reason I am of the opinion that the Act should be declared valid.
The respondents, E. C. Switzer and A. P. Walden, claim that under the provisions of the Act their terms of office expired April 1, 1929, and that they are no longer trustees, and that since they did not receive the order to hold the election until April 2, 1929, that the order is not binding upon them.
It appeared at the hearing that there are numerous school districts in Spartanburg County, and that quite a number of the districts filed petitions for elections, and that it is quite a task to determine whether or not such petitions contained the required numbers. The Act was approved February 8, 1929. Petititioners were required to file their petitions on or before the first Tuesday in March, 1929; the Act provides that the County Board of Education shall order an election, etc., which shall be held by the board of trustees in office at the time.
It is quite evident that it was not the intention of the Legislature to allow an election to be defeated because the order was not made until after April 1, 1929, but that the election should be held by the board of Trustees in office at the time. It is my opinion that even though the Act provides that the terms of office of the trustees shall expire on April 1, 1929, that they are still trustees until their successors are elected or appointed and qualified.
There is no statutory or constitutional provision as to whether or not all public officers in the State of South Carolina hold over until their successors are appointed or elected and qualified. There is such a provision as to certain constitutional officers, but no provision as to officers generally. It is my opinion, however, under the authorities, that the policy of the law is that all administrative officers should hold over until their successors are appointed or elected and qualified, so that the administration of governmental affairs will not be halted for the lack of an officer to carry them on. The purpose of this policy is to prevent a hiatus in the administration of governmental affairs pending the time when a successor may be appointed or elected and qualified.
In the case of Ex parte James W. Gray, Commissioner, Bailey, Eq. 77, although not expressly declared to be the law, the Court said: "Although an officer may be entitled to hold when the Legislature declares his office vacant, yet if he becomes a candidate," etc., showing that it was the opinion of the Court, even though the point was not raised in that case, that if the Legislature declares the office to be vacant, the officer holds over until his successor is elected or appointed and qualifies.
There are quite a number of authorities that hold that even in the absence of constitutional or statutory provisions, the officer holds over until his successor is elected or appointed and qualified.
"Apart from any constitutional or statutory regulation on the subject, there seems to be a general rule of law that an incumbent of an office will hold over after the conclusion of his term until the election and qualification of a successor." 22 R. C. L. 555.
"It has been held that it is the general rule of law that an incumbent of an office will hold over after the conclusion of his term until the election and qualification of a successor even though there is no expressed provision of law to that effect." Central City v. Sears, 2 Colo. 588; Thomas v. Owens, 4 Md. 221; Robb v. Carter, 65 Md. 321, 4 A. 282; State ex rel. Carson v. Harrison, 113 Ind. 434, 16 N.E. 384, 3 Am. St....
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...with the public policy of this state disfavoring vacancies in office. This Court gave effect to that policy in Becknell v. Waters, 156 S.C. 77, 152 S.E. 816 (1930), wherein we affirmed the trial court's well-reasoned order which recognized that, in order to prevent a hiatus in the administr......
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