Richardson v. Town of Mount Pleasant, No. 25492.

• Court: United States State Supreme Court of South Carolina
• Citation: 350 S.C. 291,566 S.E.2d 523
• Decision Date: 01 July 2002
• Docket Number: No. 25492.
• Parties: Henry RICHARDSON, Respondent, v. TOWN OF MOUNT PLEASANT and Charles M. Condon, Attorney General of South Carolina, Defendants, of which the Town of Mount Pleasant is, Respondent, and Charles M. Condon, Attorney General of South Carolina is, Appellant.

350 S.C. 291
566 S.E.2d 523

Henry RICHARDSON, Respondent,
v.
TOWN OF MOUNT PLEASANT and Charles M. Condon, Attorney General of South Carolina, Defendants, of which the Town of Mount Pleasant is, Respondent, and
Charles M. Condon, Attorney General of South Carolina is, Appellant

No. 25492.

Supreme Court of South Carolina.

Heard September 26, 2001.

Decided July 1, 2002.

350 S.C. 292

Attorney General Charles M. Condon, Deputy Attorney General Treva G. Ashworth, and Assistant Deputy Attorney General J. Emory Smith, Jr., all of Columbia, for appellant

Coming B. Gibbs, Jr., of Charleston, for respondent.

350 S.C. 293

Henry Richardson; R. Allen Young, of Mount Pleasant, and John B. Williams, of Moncks Corner, for respondent Town of Mt. Pleasant

Justice PLEICONES.

The circuit court judge found that a municipal police officer is a constable within the meaning of the South Carolina Constitution's dual office holding provisions.¹ Therefore, he held that Respondent Henry Richardson (Respondent) is entitled to continue serving as a police officer for the Town of Mt. Pleasant despite his subsequent election to the Berkeley County Council. Further, the circuit court concluded that to hold otherwise would violate Respondent's federal equal protection rights.² The Attorney General appealed. We reverse.

The South Carolina Constitution generally prohibits an individual from holding two offices of honor or profit at the same time. There are several exceptions to this general prohibition. Respondent has stipulated that county councilman and police officer are both positions of honor or profit and that, unless one office falls within a dual office holding exemption, he cannot hold both offices simultaneously.

I. Dual Office Holding

The dual office holding provisions are in derogation of the common law which prohibited a person from holding two offices only if they were "incompatible." State v. Buttz, 9 S.C. 156 (1877). Incompatibility meant either that the offices involved "such a multiplicity of business" that one person could not adequately perform both, or that they were "subordinate and interfering with each other, [inducing] a presumption that they cannot be executed with impartiality and honesty." Id.; Ex parte Ware Furniture, 49 S.C. 20, 27 S.E. 9 (1897) (McIver, J., dissenting). In some situations, public policy prevented a person from holding more than one office at a time. Id.

350 S.C. 294

The 1895 Constitution extended the dual office holding proscription to all persons holding positions of "honor or profit," exempting from the prohibition only notaries public and militia officers. Art. II, § 2. An exemption for delegates to constitutional conventions was added, but the provisions remained otherwise unchanged until 1988, when the Constitution was amended to exempt from the prohibition the offices of "constable" and "member of a lawfully and regularly organized fire department." The record does not suggest any persuasive reason why these two offices were added in 1988

In this case, we are asked to determine the meaning of the term "constable" as used in the state constitution's dual office holding provisions. When this Court is called upon to interpret our Constitution, we are guided by the "ordinary and popular meaning of the words used...." Abbeville County School Dist. v. State, 335 S.C. 58, 67, 515 S.E.2d 535, 539-40 (1999)(internal citation omitted). A word used in the Constitution should be given its "plain and ordinary" meaning. Johnson v. Collins Entertainment, 333 S.C. 96, 508 S.E.2d 575 (1998). In Johnson, this Court noted that the term "lottery" as used in our statutes and Constitution had no "technical, legal meaning," and should therefore be construed in the "popular sense."

The precise question posed here is whether the office of constable as used in the dual office holding provisions of the constitution encompasses the office of municipal police officer. While the word "lottery" has a popular, but not a technical or legal meaning, in this case we are construing a term of art, that is, the meaning of the term constable as it relates to "an office of honor or profit." We therefore look not just at the popular definition of the word, but also at the legal definition of the office.

`Constable' is defined as "a peace officer with less authority and smaller jurisdiction than a sheriff, empowered to serve writs and warrants and to make arrests; in medieval monarchies, an officer of high rank, usually serving as a military commander in the ruler's absence; the governor of a royal castle," The American Heritage Dictionary p. 314 (2d ed.1991); or as "a high officer of a medieval royal or noble household; the warden or governor of a royal household or a

350 S.C. 295

fortified town; a public officer usually of a town or township responsible for keeping the peace and for minor judicial duties." Webster's New Collegiate Dictionary p. 243 (1974). The use of the term `constable' as a synonym for `police officer' is primarily a British usage. Id.; The American Heritage Dictionary, supra.

In legal usage, a constable was originally defined as "an officer who regulated matters of chivalry, tournaments, and feats of arms." Anderson, A Dictionary of Law (1891) p. 236. Blackstone defined a constable as "an officer appointed to preserve the peace, and to execute the processes of a justice of the peace." Id. Black's Law Dictionary defines constable as:

[a]n officer of a municipal corporation (usually elected) whose duties are similar to those of the sheriff, though his powers are less and his jurisdiction smaller. He is to preserve the public peace, execute the process of magistrate's courts, and of some other tribunals, serve writs, attend the sessions of the criminal courts, have the custody of juries, and discharge other functions sometimes assigned to him by the local law or by statute. Powers and duties of constables have generally been replaced by sheriffs.

Black's Law Dictionary p. 281 (5th Ed.1979).

Under current South Carolina law,³ the office which most nearly meets Black's and Blackstone's definitions of constable is that of "magistrate's constable." See generally South Carolina Code Annotated, Title 22, Chapter 9. Magistrate's constables have county-wide authority,⁴ are authorized to serve⁵ and execute process and make returns,⁶ and to levy executions and serve attachments.⁷...