Darling v. Brunson

• Decision Date: 29 March 1913
• Citation: 77 S.E. 860,94 S.C. 207
• Parties: DARLING v. BRUNSON. SAME v. HOOLE.
• Court: South Carolina Supreme Court

77 S.E. 860

94 S.C. 207

DARLING v. BRUNSON.

SAME v. HOOLE.

Supreme Court of South Carolina

March 29, 1913

Appeal from Common Pleas Circuit Court of Florence County; S.W. G Shipp, Judge.

Proceedings by O. O. Darling against J. C. Brunson and against A. J Hoole. From the judgment, defendants appeal. Remanded, with directions.

Henry E. Davis and D. Gordon Baker, both of Florence, for appellants. J. W. Hicks and R. E. Whiting, both of Florence for respondent.

WOODS J.

In 1912 the respondent J. C. Brunson was secretary of the board of health of the city of Florence, and the respondent A. J. Hoole was health officer of the city. The petitioner, O. O. Darling, in his separate proceedings against the respondents, alleges that he was elected, by the board of health, health officer on July 16, 1912, and secretary of the board of health on August 12, 1912, and that the respondents refuse to surrender to him the books, papers, and other equipments of the office of secretary and health officer. Under these allegations a rule to show cause was issued against the respondents, and they first interposed demurrers on the ground that the proceeding was one to try title to office, and that such an issue could not be tried by a rule to show cause, but only by summons and complaint.

When serious issues of fact are involved, summary proceedings of this character to determine the title to public office ought not, as a general rule, to be entertained under section 472 of the Code of Procedure; for we do not think that section contemplates that disputed questions of fact as to the title to office should be determined under a rule to show cause why the books and papers of the office should not be surrendered by an incumbent to his successor. Such issue should be brought to trial under a regular action, as provided by section 462, Code Civ. Proc. State v. Rice, 66 S.C. 1, 44 S.E. 80. But where questions of law only are involved, if the issues of fact may be readily and certainly determined without the formal taking of testimony, it would be looking too much away from the substance to the form to turn the parties out of court for the sake of having them make the very same issues in different words. This was the principle under which the court adjudged a similar issue by mandamus in McDowell v. Burnett, 90 S.C. 400, 73 S.E. 782. In the present case the demurrers admitted all the facts and raised issues of law only. When the demurrers were overruled, respondents filed returns; but the only material issue of fact raised by them is the general denial that the petitioner was elected to the office of secretary of the board of health after he had been elected health officer.

Respondents' contention that the board of health could not elect or remove its secretary and the health officer of the city without the approval of the city council is clearly untenable. Sections 1591 and 1592 of the Code of 1912, which provide for the election of boards of health and require them to elect a secretary and health officer, apply to "every incorporated city, town or village in the state." This must be considered to include the city of Florence, and the provisions of the special charter of the city with respect to the powers of the board of health must yield to this later statute. On these points we agree with the circuit judge.

We think it quite clear, however, that the petitioner, being forbidden by the Constitution from holding two offices of honor or profit at the same time, has no right to the custody of the books and papers of both. We are aware that a number of authorities may be cited holding that constitutional provisions against holding two offices at the same time applies to state offices, and not to offices of a municipality....