Heyward v. Long

• Decision Date: 05 December 1935
• Docket Number: 14183.
• Citation: 183 S.E. 145,178 S.C. 351
• Parties: HEYWARD v. LONG, and three other cases.
• Court: South Carolina Supreme Court

183 S.E. 145

178 S.C. 351

HEYWARD v. LONG, and three other cases.

No. 14183.

Supreme Court of South Carolina

December 5, 1935

Four original proceedings by E. T. Heyward, R. J. Ramer, W. Fred Lightsey, and C. F. Rizer against J. C. Long, Louis Richardson, W. L. Rhodes, and Frampton Toole.

Judgment for plaintiffs.

W. H Muller, of Dillon, A. H. Dagnall, of Anderson, Sims & Sims of Orangeburg, Carl Kearse, of Bamberg, Osborne & Butler, of Spartanburg, Robinson & Robinson, of Columbia, and Nathans & Sinkler, of Charleston, for plaintiffs.

Evans Galbraith & Holcombe, of Spartanburg, John P. Grace and M. L. McCrae, both of Charleston, C. S. Bowen, of Greenville, R. B. Hildebrand, of York, and W. M. Smoak, of Aiken, for defendants.

PER CURIAM.

The four above-entitled proceedings were instituted in the original jurisdiction of the Supreme Court, in equity against the respondents, upon a petition or complaint in each case. The allegations contained in the petitions in the four cases are practically identical, with the exception of necessary changes in names and dates.

It is alleged in the four petitions that the plaintiffs are in the possession of their respective offices as state highway commissioners of South Carolina, and that the purpose of instituting these proceedings is to enjoin and restrain the respondents, who are rival claimants to said offices, from interfering with them in such possession, and in the performance of their official duties, until such time as the respondents have established their rights to the offices in question, in a proceeding instituted on the law side of the court.

The gist of each proceeding may be found in the second paragraph of the complaint in the first case mentioned in the caption. The other petitions contain substantially the same averments with respect to the respondents from the Second, the Tenth, and the Fourteenth judicial circuits. The paragraph referred to is as follows: "That the defendant, J. C. Long, claims some right, title or interest in and to the said office of highway commissioner from the Ninth Judicial Circuit, and has been and is threatening to continue interfering with the plaintiff in the performance of his duties as such commissioner, and threatening to take possession of his said office. That at a meeting of the Commission on the 9th day of October, 1935, the said defendant appeared and demanded possession of the said office, claimed and demanded the right to vote on questions coming before the Commission, and gave notice that he would appear at any subsequent meetings and continue to demand such right. That such conduct on the part of the defendant interferes seriously with the performance of his duties by the plaintiff, and is a source of untold embarrassment and confusion, not only to the plaintiff, but to the whole Commission."

The complaint in each case alleges further, that unless the petitioners are protected in their right to these offices, the possession of which they now have, and the duties of which they are now performing, irreparable damage will result, not only to them, but to the commission as a whole, and to the people of the state of South Carolina.

Upon the several petitions, the Chief Justice issued rules to show cause, directed to each of the respondents, requiring them to show cause before the Supreme Court on the 11th day of November, 1935, why an order restraining and enjoining them from interfering with the petitioners in the performance of their duties as highway commissioners for the state of South Carolina from the Second, the Ninth, the Tenth, and the Fourteenth judicial circuits, and with the possession of their offices, should not be issued. At the same time a temporary injunction was granted, restraining the respondents from in any way interfering with the petitioners in the performance of their duties as highway commissioners, and from appearing at the meetings of the commission, or doing any act or thing in connection with their alleged claim to said offices.

Upon the return day the respondents duly made returns, and the matter was heard by the court at that time upon the petitions and returns. The returns of the several respondents are substantially the same. They challenge the jurisdiction of the court on the grounds: (a) That the proceedings are civil actions, and should be commenced by the service of a summons, to which they would have 20 days from the service to answer; (b) that the suits are for the purpose of trying title to the office in question, and they consequently cannot be maintained in equity; (c) that the petitioners have an adequate remedy at law; (d) that the state is not a party to the proceeding; (e) that the respondents are in possession of the offices, and that the petitioners are disqualified from holding public office because they are declared by the proclamation of the Governor to be rebels and in a state of insurrection.

The issues presented are identical, and are common with respect to all of the parties. The cases were heard and argued together before the court, and one opinion will suffice for all.

It appears from the record that the petitioner E. T. Heyward was appointed as highway commissioner from the Ninth judicial circuit on January 31, 1933, for a 4-year term, his appointment having been confirmed by the Senate, and his commission bearing date February 1, 1933; that the petitioner R. J. Ramer was appointed as highway commissioner from the Tenth judicial circuit on September 21, 1932, for a 4-year term, his appointment having been duly confirmed by the Senate, and his commission bearing date September 26, 1932; that the petitioner W. Fred Lightsey was appointed as highway commissioner from the Fourteenth judicial circuit on September 1, 1932, for a 4-year term, his appointment having been duly confirmed by the Senate, and his commission bearing date September 28, 1932; and that the petitioner C. F. Rizer was appointed as highway commissioner from the Second judicial circuit on October 28, 1931, for a 4-year term, his appointment having been duly confirmed by the Senate, and his commission bearing date November 3, 1931.

It further appears from the record before us that from the dates of their respective appointments, above mentioned, they have been in the actual possession of their several offices, engaged in the performance of their official duties, and were in such possession and so engaged at the time of the commencement of this proceeding.

The respondents are rival claimants to these offices, and hold commissions from the present Governor of the state, appointing them to such offices. It is conceded that their appointments have not been confirmed by the Senate.

The respondent Frampton Toole alleges that he is entitled under his commission, which bears date October 9, 1935, to the possession of the office of highway commissioner from the Second judicial circuit; the respondent J. C. Long alleges that he is entitled under his commission, which bears date September 7, 1935, to the possession of the office of highway commissioner from the Ninth judicial circuit; the respondent Louis Richardson alleges that he is entitled under his commission, which bears date September 6, 1935, to the possession of the office of highway commissioner from the Tenth judicial circuit; and the respondent W. L. Rhodes alleges that he is entitled under his commission, which bears date September 7, 1935, to the possession of the office of highway commissioner from the Fourteenth judicial circuit.

The respondents not only assert their right to the possession of these offices, but they allege that before the restraining order of this court was issued they attended a meeting of the state highway commission, demanded of the petitioners the possession of the offices in question, participated in said meeting, and gave notice to the petitioners that they would attend and participate in all other meetings and transaction of business matters of the highway commission.

I. The respondents contend that these are civil actions, which should be commenced by the service of summons.

Is a summons necessary?

It is of course true that ordinarily a civil action under the Code should be commenced only by the service of a summons. The contention of the petitioners, however, is that they are before the court now in a proceeding, and not in an action. Construing section 565, vol. 1 of the Code 1932, the court in the case of Walpole v. Wall, 153 S.C. 106, 149 S.E. 760, held that it had power to issue writs of mandamus in its original jurisdiction, and such proceedings were not actions requiring summons for their commencement; that the proper procedure was to file a petition, upon which the court or justice would issue a rule to show cause.

In State v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884, 22 L.R.A. (N.S.) 435, 129 Am.St.Rep. 876, 17 Ann.Cas. 343, the Attorney General filed a petition requiring the defendant to show cause why it should not be restrained. A rule to show cause was issued, to which the defendant made return. This was a proceeding in the original jurisdiction of the court, and was in accord with the procedure followed in Walpole v. Wall, supra, respecting writs of mandamus.

In the case of Burnett v. Langston, 164 S.C. 99, 162 S.E 72, 73, which was likewise a proceeding in the original jurisdiction of the Supreme Court on a verified petition, a rule to show cause was issued requiring respondent to deliver to the petitioner all books, etc., in his possession relating to the office of tax collector of Spartanburg county. It was contended that this was an action which should have been commenced by a summons. The court held: "As to the legal positions with reference to the jurisdiction of this...