Elledge v. Wharton

• Decision Date: 14 June 1911
• Citation: 71 S.E. 657,89 S.C. 113
• Parties: ELLEDGE et al. v. WHARTON et al.
• Court: South Carolina Supreme Court

71 S.E. 657

89 S.C. 113

ELLEDGE et al. v. WHARTON et al.

Supreme Court of South Carolina

June 14, 1911

Petition by L. C. Elledge and another for mandamus against J. B Wharton, foreman of the grand jury, and certain other officers of Greenwood county to compel payment of salary of petitioners as rural policemen for the two months ending May 7, 1911. Writ granted.

D. H Magill, for petitioners. Giles & Ouzts, for respondents.

JONES C.J.

The petitioners, claiming to be rural policemen duly commissioned by the Governor and qualified under the rural police act of February 18, 1911, seek by mandamus to compel respondents to pay the salary, $166.66, alleged to be due each for the two months ending May 7, 1911. By their return respondents deny that petitioners had been duly appointed and commissioned, in that they were appointed by the Governor without the recommendation of the legislative delegation of Greenwood county, as required by the act.

It appears that the act was approved Saturday night, February 18, 1911, the last day of the legislative session, and that the Governor on the same night appointed petitioners as rural policemen upon the recommendation alone of Hon. D. H. Magill one of the Greenwood delegation. It is stated by the affidavit of Senator C. A. C. Waller and Representatives W H. Nicholson and J. W. Bowers, the other members of the Greenwood delegation, that the appointments were made without their recommendation before they had knowledge of the approval of the act or opportunity to recommend. Section 1 of the "Act to provide for the establishment and maintenance of a rural police system in Greenwood county," approved February 18, 1911, provides: "That upon the approval of the act it shall be the duty of the Governor upon the recommendation of the legislative delegation of Greenwood county to appoint three able bodied men of the county of Greenwood *** and shall commission them as county policemen for a term of four years," etc. Appointment to office not being inherently an executive prerogative, it is competent for the Legislature in conferring the power of appointment to attach such limitations and conditions to its exercise as may be deemed proper. The statute expressly provides that the appointment of rural policemen for Greenwood county shall be upon the recommendation of the legislative delegation of Greenwood county. No such recommendation having been made, the appointment was made without authority, and the petitioners cannot be held to be officers de jure.

The petitioners, however, were commissioned by the Governor on the recommendation of a member of the Greenwood delegation, have taken the oath of office, have given bond for the faithful performance of duty, have incurred expense of $350 each in providing the equipment required by the act and have in good faith discharged the duties of rural police. Having acted in good faith under color of title to the office, they are officers de facto.

The general rule is that an officer de facto cannot sustain an action to recover the fees or salary attached to the office and this rule is usually enforced when there is another who has the right to the emoluments. 29 Cyc. 1393; Mechem on Public Officers, § 331. In Dolan v. Mayor, 68 N.Y. 274, 23 Am. Rep. 168, it is declared to be the settled law of New York "that the right to the salary and emoluments of a public officer attach to the true and not to the mere colorable title, and, in an action brought by a person claiming to be a public officer for the fees or compensation given by law, his title to the office is an...