Ex parte Smith

Decision Date30 December 1877
Citation8 S.C. 495
PartiesEx Parte SMITH.
CourtSouth Carolina Supreme Court


A decision of a Circuit Judge under a writ of habeas corpus discharging a prisoner from the custody of the Superintendent of the Penitentiary on the ground that he had been pardoned by the Governor is appealable to the Supreme Court.

A Governor holds his office until his successor is chosen and qualified, unless he has, by formal resignation or other act equivalent thereto, resigned or abandoned the office, or has, by his own conduct, estopped himself from holding over.

A candidate for Governor who receives the highest number of votes, whose election has not been contested, and who qualifies in the presence of the House of Representatives and of such of the Senators as choose to attend, after notice to the Senate, is the duly elected and qualified Governor of the State and entitled to discharge the functions of the office.

Under the Constitution and laws of this State, the title to an office held by election of the people depends upon the fact of the election, and not upon the acts or omissions of Boards of State Canvassers; and when such fact is shown by any competent authority and the election is not contested, the person who has received the highest number of votes is, under the Constitution, entitled to the office.

The failure of the Secretary of State to deliver the returns of the Managers of Election for Governor to the Speaker of the House of Representatives, as he is required to do by Article III, Section 4, of the Constitution, cannot deprive the person who has received the highest number of votes of his right to the office. The fact that he did receive the highest number of votes may be ascertained in some other way,—as, for instance, from the returns of the Managers of the Election on file in the offices of the Clerks of the different Counties.

Where an election for Governor is not contested, the prima facie result of the election as shown by the returns of the Managers must be accepted as the true legal result and acted upon accordingly.

No provision of the Constitution or Act of the General Assembly requires that a Governor elect shall be installed before entering upon the duties of his office. All that is required is that he shall be qualified by taking and subscribing the oath of office prescribed by the Constitution; and although it is eminently proper and suitable to the dignity of the occasion that all the usual ceremonies should be observed, such ceremonies are not essential to the legal validity of a qualification.

One may abandon, renounce or resign an office by act as well as by word. Where, therefore, one has been elected Governor and holds the office for two years and until his successor has been chosen and qualified, and, being a candidate for re-election, is defeated, but claims the office and qualifies as if he had been elected, such claim and qualification is a renunciation of his right to hold over; and if he cannot maintain his title to the office under the secend election, he must be treated as if he had resigned it.

Where one holding the office of Governor is a candidate for re-election, and, being defeated, goes through the form of inauguration as if he had been re-elected, he is estopped by such conduct from afterwards admitting his defeat and claiming the office under a provision of the Constitution giving him the right to hold over until his successor is qualified.


This was a petition by Peter Smith for a writ of habeas corpus.

The material facts were that in December, 1876, the petitioner was a prisoner in the custody of the Superintendent of the Penitentiary, under sentence of the Court of General Sessions for a criminal offense of which he had been convicted. On the 20th day of that month he received from D. H. Chamberlain, claiming to be Governor of the State, a paper, under the great seal of the State, purporting to be a pardon. The Superintendent refused to recognize the paper as a valid pardon, and this was an application to the Court for a discharge of the prisoner.

His Honor Judge Carpenter made an order for the discharge of the prisoner, and this was an appeal to the Supreme Court from that order.

Maxwell, for the State, filed the following printed argument:

It is submitted that, apart from the question as to whether Wade Hampton has been qualified as provided by law, he must, nevertheless be regarded as de facto Governor.

1. Having received the highest number of votes cast at the last general election, he has the de jure title, and is in the actual discharge of the functions of the office.

2. If Daniel H. Chamberlain, his competitor, did not receive the highest number of votes, his only color of title must be derived from his right to hold over by virtue of Section 2. Title III, of the Constitution.

3. He has surrendered such right.

I propose in this argument to confine myself to the consideration of the third proposition.

It is claimed that in the event of an adjudication by this Court that neither of the rival candidates for the office of Governor has been lawfully declared elected and duly inaugurated, nevertheless Chamberlain is entitled to the office in pursuance of Section 2, Article III, of the Constitution.

This Section provides that the Governor shall hold over until his successor shall be chosen and qualified.

The reverse of this proposition is true.

It is submitted that by the record in this case it appears that on the 7th day of December, Chamberlain, claiming to have been elected at the last general election, and claiming to have been duly declared to have received the highest number of votes, thereupon, by a public and notorious act, assumed to take the oath of office as such Governor elect, and submitted himself to a ceremony which he publicly avowed was an inauguration or induction into the said office under the title thereto claimed to have been derived from such election and declaration.Subsequently thereto, in accordance with the custom in the case of a newly-inaugurated Governor, he wrote and published an address, which he represented to be his inaugural address, and which averred his assumption of the duties of said office by virtue of the title claimed to have been derived from said general election.

What is the legal construction of these acts?

It is respectfully submitted that Mr. Chamberlain, in assuming to clothe himself with the insignia of office as Governor by virtue of his claim to have received the highest number of votes at said election, in submitting himself to a ceremonial of inauguration, and in taking an oath of office as said pretended Governor elect, were equivalent to a surrender or resignation of all right and title to such office by virtue of his preceding term.

A resignation is defined by Bouvier to be the act of an officer by which he declines his office and renounces his further right to use it.—Bouvier's Law Dictionary.

And such resignation need not be by any particular form of words.—Dillon on Municipal Corporations, 200.

It may be by parol.—26 N. Y., 325.

The act of resignation is an act of the will. It may be manifested in any way which precludes the idea of any other purpose. It would be absurd to say that when Mr. Chamberlain assumed to enter upon the duties of the office in question under the new title he at the same time retained the idea or intention to continue to hold under the old. It was optional with him to choose between these two; nay, it was an absolute necessity that he should so choose, unless it can be said that there can be two good titles to the same office existing at the same time—an absurdity plain upon its face. If, then, Mr. Chamberlain knew when he assumed to take possession of his office under the new title that he could not in the same breath assert a claim to such office under any other title, we have at once two courses of action presented to him, involving the necessity of a choice. A question is presented, to decide which he must, from the very necessity of the case, exercise his volition. He does exercise it. He says, in so many words, “I prefer this title rather than the other.” He had the option of determining which one of two titles he would accept, and he chose the one which he thought gave him the longer lease of power. By this very act, therefore, he manifests an intention upon his part to relinquish the former title. It could not be otherwise, unless one can be said to select one of two things or one of two courses of action and at the same time retain that which has not been selected, which would involve a reductio ad absurdam. Before he can assume to act under the latter title he must abandon all claim to the other. Mr. Chamberlain, in assuming to submit to the ceremony of inauguration, and in entering upon the duties of the office by virtue of that ceremony, in so many words said to the people of this State that he had abandoned all right which he had to the office by virtue of that clause in the Constitution. He was at liberty to claim by one title or the other; that he has taken the one course is sufficient proof that he has given up the other. What is this but a resignation—a laying down of the title under the old term, which cannot be held conjointly and simultaneously with the new, since, as we have shown, a resignation is not any form of words, written or spoken, but such acts as evidence an intention to relinquish or abjure the office in question?

In the case of The People against Metropolitan Police, (26 N. Y., 325,) it was said that “affirmative acts on his part are quite as effective as affirmative words, either written or spoken.”

In the same case it is held that a refusal to hold an office under a particular Act and to do what that Act requires amounts to a resignation, even when the duties were the same.— Ibid, 327; Dillon on Corporations, 200.

In the absence of any prescribed forms or acts, any facts which at common law...

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  • Thompson v. Talmadge
    • United States
    • Georgia Supreme Court
    • 19 de março de 1947
    ...68, 256 N.W. 377; State ex rel. Sathre, Attorney General, v. Moodie, 65 N.D. 340, 258 N.W. 558; Ex parte Lawhorne, 59 Va. 85; Ex parte Smith, 8 S.C. 495, 511; Attorney v. Taggart, 66 N.H. 362, 29 A. 1027, 25 L.R.A. 613; State ex rel. Trapp v. Chambers, 96 Okl. 78, 220 P. 890, 30 A.L.R. 1144......
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    ...419, 9 S.E. 31, 3 L.R.A. 64; State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739, 51 N.W. 602; Ex parte Norris, 8 S.C. 408; Ex parte Smith, 8 S.C. 495; Taylor Beckham, 178 U.S. 548, 20 S.Ct. 890, 1009, 44 L.Ed. 1187; Boyd v. Nebraska, 143 U.S. 135, 12 S.Ct. 375, 36 L.Ed. 103; State v. Fa......
  • Ex parte Bess
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    ...Dec. 566; Com. v. Ahl, 43 Pa. 53-57, decided in 1862; and I fail to find that the courts have followed these cases. The case of Ex parte Smith, 8 S. C. 495, cited by appellant as supporting his position, in which case the opinion of the court was written by Mr. Justice Mclver, later Chief J......
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