Culbertson v. Blatt

• Decision Date: 30 May 1940
• Docket Number: 15094.
• Citation: 9 S.E.2d 218,194 S.C. 105
• Parties: CULBERTSON v. BLATT et al.
• Court: South Carolina Supreme Court

9 S.E.2d 218

194 S.C. 105

CULBERTSON v. BLATT et al.

No. 15094.

Supreme Court of South Carolina

May 30, 1940

J Wiley Brown, of Columbia, and C. B. Ruffin, of Bishopville for plaintiff.

Blease & Griffith, of Newberry, George Bell Timmerman, of Lexington, T. M. Boulware, of Barnwell, and C. T. Graydon and Benet, Shand & McGowan, all of Columbia, for defendants.

BAKER Justice.

The defendants were elected by the General Assembly to membership on the Board of Trustees of the University of South Carolina in the manner prescribed by law (Code, § 5713). One of them after being so elected, was elected to the office of Mayor of the Town of Bishopville; another, after being elected as such trustee, was elected to the office of Solicitor of the Fourteenth Judicial Circuit; three of the defendants, after being so elected as trustees, were elected as members of the House of Representatives; and the two remaining defendants were elected as State Senators from their respective counties, and were elected to the Board of Trustees of the University during their terms of office as Senators.

The plaintiff, in his capacity as a citizen and taxpayer, invokes the pertinent constitutional provisions relating to the holding of more than one public office, and in this proceeding seeks an adjudication that the defendants vacated the first of the aforesaid offices to which they were elected, and an injunction restraining them from performing the duties of such offices.

The constitutional provisions thus relied upon are Article 3 Section 24, which provides that "no person shall be eligible to a seat in the General Assembly while he holds any office or position of profit or trust under this State ***; and if any member shall accept or exercise any of the said disqualifying offices or positions he shall vacate his seat;" and Article 2, Section 2, which provides that "no person shall hold two offices of honor or profit at the same time".

By way of return to a rule to show cause, the defendants demurred to the complaint upon the grounds (1) that the plaintiff is without capacity to bring the suit because of the absence of any personal interest in the matter; (2) that the complaint fails to show any right in the plaintiff to prosecute the action; and (3) that there is a misjoinder of causes of action.

In the brief filed by plaintiff's counsel and in the oral argument before this court, the position of the plaintiff is expressed to be that upon a showing of a palpable violation of a constitutional mandate, a citizen and taxpayer may invoke the arm of the judiciary to correct the violation by such remedies as may be appropriate to the case. He nowhere suggests that he has any personal interest in the matters here involved, other than the interest which all citizens of the State have in common to see that the Constitution and laws of the State are observed. In other words, there is no showing on the part of the plaintiff that he has any personal or individual rights in any of the offices here involved, or that he has suffered or is threatened with any pecuniary loss or damage by anything that he alleges has been done, or that any public funds or property are being misapplied or unlawfully diverted in such manner as to give rise to the institution of a class action on the part of a taxpayer.

At the threshold of the case we are met with issues affecting the fundamental powers and jurisdiction of this Court, and we deem this case to be one in which the court should raise the same on its own motion and thereby make such disposition of the case as will fully accord with the governmental principles involved.

In our opinion the maintenance of this action is in the first instance precluded by a consideration of the traditional and constitutional division of powers among the legislative, executive and judicial branches of the government. That elementary constitutional doctrine puts it beyond the power of this court on a mere allegation that the Legislature has violated a constitutional mandate, to issue a prohibitive or other injunctive or mandatory decree which would have the effect of undoing such violation.

In the case of Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L.Ed. 377, 387, the court said:

"It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system, that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. To these general propositions there are in the Constitution of the United States some important exceptions. One of these is, that the President is so far made a part of the legislative power, that his assent is required to the enactment of all statutes and resolutions of Congress. ***

"In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and judicial departments of the government, It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another."

In this case we are not dealing with the question whether there is any remedy under the law for the alleged unlawful holding of a public office in the light of the constitutional provisions above referred to. It suffices here to call attention to the fact that the plaintiff shows no legal interest in the maintenance of the action, and that the State itself is not either a nominal or an actual party to the suit. If there is any authority, statutory or otherwise, for the maintenance of a suit of the present character, plaintiff's counsel have failed to call attention to it, and this court has not been able to find any.

If any of the defendants have vacated their offices as trustees, under the Constitution, by qualifying for other offices to which they have been elected, or if any of them have vacated other offices by qualifying as trustees, there are doubtless remedies for that situation. Certainly the Legislature is fully empowered to deal with it as to those defendants who were elected to other offices after being elected trustees, for the election of new trustees is the function of that body exclusively, and obviously it is beyond the power of this court to direct the Legislature to perform any duty it may have in that regard.

As to the instances of those defendants who were elected to the Senate before being elected as trustees, and to the question whether they have vacated their offices in the General Assembly (which is the sole contention that the plaintiff can make in regard to them), the Constitution expressly prescribes that the Senate and House of Representatives shall be the judges of the qualifications of their own members (Article III, Section 11) and certainly it will not be suggested that this is a field in which the courts may exercise judicial...