Dacus v. Johnston

• Decision Date: 13 April 1936
• Docket Number: 14278.
• Parties: DACUS v. JOHNSTON, Governor, and nine other cases.
• Court: South Carolina Supreme Court

185 S.E. 491

180 S.C. 329

DACUS v. JOHNSTON, Governor, and nine other cases.

No. 14278.

Supreme Court of South Carolina

April 13, 1936

Original actions by R. M. Dacus, by Ralph J. Ramer, by Zack F. Wright by W. Fred Lightsey, by C. F. Rizer, by George Bell Timmerman, by John T. Stevens, by E. T. Heyward, by E S. Booth, and by W. P. Hamrick against Olin D. Johnston Governor of the state of South Carolina.

Judgments in accordance with opinion.

See also, Heyward v. Long, 178 S.C. 351, 183 S.E. 145.

Eugene S. Blease, of Newberry, Nathans & Sinkler, of Charleston, A. H. Dagnall, of Anderson, Robinson & Robinson, of Columbia, Carl Kearse, of Bamberg, Wilton H. Earle, of Greenville, S. K. Nash, of Sumter, Edgar A. Brown, of Barnwell, and Randolph Murdaugh, of Hampton, for petitioners.

C. S. Bowen, of Greenville, and W. M. Smoak, of Aiken, for respondent.

BONHAM Justice.

These proceedings, ten in number, which were brought by petition in the original jurisdiction of the court, are practically identical in their purpose and statements of fact. The disposition of one of them will be decisive of all. Therefore, for the sake of brevity, we will consider the case of Dacus v. Olin D. Johnston, Governor, etc., since that case appears first upon the petition.

The petition sets forth: That the petitioner is a member of the state highway commission, appointed from the Thirteenth judicial circuit; that Olin D. Johnston is the Governor of the state of South Carolina.

That on or about December 7, 1935, Gov. Johnston caused to be served on petitioner a paper entitled: "Order of suspension and rule to show cause." That under the cause set out in that proceeding Olin D. Johnston, as Governor, attempted without a hearing to suspend petitioner from his office of state highway commissioner, unlawfully claiming authority for his action under the provisions of section 1592 of the Code of 1932.

That this action of respondent in attempting to suspend petitioner from his office of highway commissioner took place on the day following the filing of the opinion of this court in the case of Hearon v. Calus, reported in 178 S.C. 381, 183 S.E. 13, which held that this petitioner was a state highway commissioner, and entitled to perform the duties of that office without molestation.

Petitioner alleges on information, advice, and belief that this action of the respondent is in violation of the provisions of the Constitution of this state, especially those of article 4, § 22, and article 3, § 27, and section 1 of the Fourteenth Amendment to the Constitution of the United States.

Petitioner alleges on information, advice, and belief that the said order of suspension was in violation of sections 1592 and 3070 of the Code in that no hearing, nor opportunity to be heard were afforded your petitioner.

That petitioner is not such an "officer, clerk or other person charged with the disbursement of funds appropriated by the Legislature of South Carolina," within the meaning of Sections 1592 and 3070 of the Code of 1932, and is not subject to suspension by the governor as is provided in those sections.

That one of the grounds of suspension alleged in the order of the Governor, attached as exhibit to the petition, was the action of your petitioner in voting to pay to Ben M. Sawyer his salary as chief highway commissioner of the state. On information, advice, and belief that Ben M. Sawyer was entitled to be paid his salary as he was there in the active discharge of his duties and the salary was duly voted to him by the state highway commission under the provisions of sections 5868 and 5869 of the Code, and his right to his salary was duly recognized by the comptroller general and the state treasurer under the advice of the Attorney General.

That the other ground of suspension set out in the order of the Governor was the action of your petitioner in voting to enter into reimbursement agreements with certain counties in the state in accordance with the provisions of law. Your petitioner alleges on information and belief that under the statute laws of the state the state highway commission had authority to enter into such agreements. That the Attorney General of the state, its chief legal adviser, had advised the highway commission that it could enter into such reimbursement agreements, and the action of your petitioner thereabouts was done in good faith and constituted no violation of law.

Your petitioner alleges that if the acts of petitioner in voting to pay Sawyer's salary and to enter into certain reimbursement agreements were in error, they did not violate sections 1592 and 3071 of the Code, and were not grounds for suspension within the meaning of those sections and the Constitution of the state.

On information and belief that similar orders of suspension have been made by the respondent against nine other members of the highway commission and orders of dismissal filed against the other three Highway Commissioners, as a result of which the legality of the acts of your petitioner and the South Carolina highway commission have been brought into issue, and unless this order of suspension and similar orders against the other commissioners are declared of no force and effect by this court, irreparable damage will result to the state of South Carolina, and said orders will result as an unwarranted reflection upon the character of your petitioner, for which your petitioner has no adequate remedy at law.

The prayer of the petition is that the order of suspension be declared to be a nullity and of no force and effect: That a rule to show cause do issue requiring the respondent, as Governor of South Carolina, to show cause before this court why the prayer of this petitioner should not be granted.

The rule to show cause was duly issued, and the return and demurrer thereto were duly heard on the 14th day of March, 1936.

The respondent submits his first formal pleading in the following language:

"The respondent in the above entitled actions, without submitting to the jurisdiction of this court, or waiving any rights whatsoever in respect thereto, and appearing specially, solely and for no other purpose than that of questioning the and objecting to the jurisdiction of this court, respectfully demurs to the petitions on the following grounds." A summary of the grounds of demurrer follows:

(1) That it appears upon the face of the petitions that these actions are not brought to this court by appeals in law or in equity, but are instituted in the original jurisdiction of this court, which has no jurisdiction to entertain them, because its jurisdiction is conferred, defined, and limited by section 4, art. 5, Const.S.C.1895, in the following terms:

" Jurisdiction of Supreme Court. The Supreme Court shall have power to issue writs or orders of injunction, mandamus, quo warranto, prohibition, certiorari, habeas corpus and other original and remedial writs. And said Court shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law, except in chancery cases where the facts are settled by a jury and the verdict not set aside, and shall constitute a Court for the correction of errors at law under such regulations as the General Assembly may by law prescribe."

That these actions do not fall within these provisions of the Constitution.

(2) That it appears on the face of the petitions that these are suits against the state, which cannot be sued by its citizens without its consent, and it does not appear that such consent has been given.

(3) That there has been no summons or other process recognized or provided by law, conferring jurisdiction on this court, of either the person of this respondent, the state of South Carolina, or of the subject-matter involved, served herein, and therefore this court has no authority to proceed with said actions.

(4) That there is no authority by which an action can be commenced in the courts of this state by the service of a rule to show cause, and the same is not original, therefore, but merely mesne process, and consequently the actions herein have not been commenced in contemplation of law, the rules to show cause herein being the only process served.

(5) That the foregoing grounds of demurrer raise federal questions under the due process of law clause of the Federal Constitution, namely, section 1 of the Fourteenth Amendment to the Constitution of the United States, respondent being a natural born citizen of the United States, and South Carolina being a state of the Union, and for this court to refuse to sustain this demurrer, or to proceed with the actions, or to render any order, decree, judgment, or other adjudication would be depriving respondent, and the state of South Carolina, of rights and property, in violation of the due process clause aforesaid.

The return contains the same saving provisions relating to the jurisdiction of this court; and proceeds to set out as a part of the return the five grounds of the demurrer. In addition thereto, the respondent will avail himself of all rights allowed under sections 463, 464, 465, and 466, Code 1932, which relate to the methods by which the jurisdiction of courts may be challenged.

(6) An additional ground of demurrer was added in the general language that it appears upon the face of the petitions that facts sufficient to constitute a cause of action have not been alleged against the respondent, in his individual or representative capacity.

(7) The return admits paragraph 1 of the petitions, but asserts that the petitioners are under suspension from office and are not performing the duties thereof and have no legal right to do so.

(8) Paragraph 2 of the petitions is...