Power v. McNair

• Decision Date: 06 November 1970
• Docket Number: No. 19123,19123
• Citation: 177 S.E.2d 551,255 S.C. 150
• Court: South Carolina Supreme Court
• Parties: J. W. POWER and Cecil J. McCaulley, Appellants, v. Robert E. McNAIR, Governor of the State of South Carolina, Respondent.

Page 551

177 S.E.2d 551

255 S.C. 150

J. W. POWER and Cecil J. McCaulley, Appellants, v. Robert E. McNAIR, Governor of the State of South Carolina, Respondent.

No. 19123.

Supreme Court of South Carolina.

Nov. 6, 1970.

W. Paul Culbertson and Robert W. Whitesides, Laurens, for appellants.

Atty. Gen. Daniel R. McLeod and Asst. Atty. C. Pinckney Roberts, Columbia, for respondent.

LEWIS, Justice.

This action for declaratory judgment was brought for the purpose of determining whether the simultaneous holding of the office of a city policeman and a commission as a State constable without compensation would constitute dual officeholding within the meaning of Article 2, Section 2, of the South Carolina Constitution. We find no justiciable controversy and therefore dismiss the appeal.

The plaintiffs are the chief of police and a patrolman of the City of Laurens, South Carolina. The pleadings and the stipulated facts show that, in the performance of their duties in enforcing the law, plaintiffs must on occasion go beyond the municipal limits to investigate crimes and apprehend persons accused of committing crimes within the city. Presently they have no jurisdiction beyond the city limits except in certain limited situations prescribed by statute, and it is necessary to obtain the assistance of the office of the Sheriff of Laurens County in handling matters outside the city. In order to enlarge their jurisdiction to investigate such crimes, they requested the Governor to commission them as State constables without compensation under the provisions of Section 53--3 of the 1962 Code of Laws, which authorizes the Governor, 'at his discretion,' to appoint constables, without compensation from the State, 'as he may deem necessary,' to assist in the detection of crime and the enforcement of the laws of this State.

It is conceded that the Governor has the power to make the appointments requested by plaintiffs, but he refused upon the sole ground that, to do so, would violate the terms of Article 2, Section 2, of the Constitution prohibiting dual officeholding. If the appointment by the Governor would violate the foregoing constitutional provision, the acceptance of it by plaintiffs might amount to a relinquishment of their positions as police officers of the city. Darling v. Brunson, 94 S.C. 207, 77 S.E. 860. Faced with this situation, plaintiffs instituted this action seeking a judicial determination of their status, if the Governor made the requested appointments.

At the outset, we must determine whether the pleadings state a cause of action entitling the parties to a declaratory judgment. We stated in South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, 215 S.C. 193, 54 S.E.2d 777 that 'the existence of an actual controversy is essential to jurisdiction to render a declaratory judgment.' While this question has not been raised, we raise it on our own motion, since the parties cannot by consent or agreement confer jurisdiction on the court to render a declaratory judgment in the absence of an actual justiciable controversy. 26 C.J.S. Declaratory Judgments § 26, page 99; 22 Am.Jur. (2d), Declaratory Judgments, Section 75.

This State has adopted the Uniform Declaratory Judgments Statute, Section 10--2001 et seq., 1962 Code of Laws.

In order to maintain an action under the statute, there must exist a justiciable controversy. Dantzler v. Callison, 227...