Sanders v. Belue

• Decision Date: 16 September 1907
• Citation: 58 S.E. 762,78 S.C. 171
• Parties: SANDERS et al. v. BELUE et al.
• Court: South Carolina Supreme Court

58 S.E. 762

78 S.C. 171

SANDERS et al. v. BELUE et al.

Supreme Court of South Carolina

September 16, 1907

Appeal from Common Pleas Circuit Court of Union County; D. E Hydrick, Judge.

Suit by Joseph Sanders and others against J. F. Belue and others. From an order refusing a temporary injunction, plaintiffs appeal. Affirmed.

J. A Sawyer, for appellants.

Townsend & Townsend, for respondents.

WOODS J.

The county board of commissioners of Union county on January 7, 1907, appointed the plaintiff S. G. Howell superintendent of the poorhouse and farm. The preceding county board of commissioners on October 15, 1906, had undertaken to appoint the defendant J. Fincher Belue superintendent for the term of one year from that date. Claiming the right to hold the position under this appointment until October 15, 1907, the defendant Belue refused to surrender to Howell the property in his charge as superintendent. Thereupon Howell and two of the county board of commissioners, Joseph Sanders and W. Fowler Bobo, brought this action to restrain the defendant Belue from interfering with Howell in taking possession of the property of the poorhouse and farm and discharging his duties as superintendent. Judge Aldrich refused the application for temporary injunction, and plaintiffs appeal.

If the superintendent of the county poorhouse and farm is an officer, then it is conceded the plaintiff Fowler has an adequate remedy at law by quo warranto, and there would be no ground to ask for equitable relief by injunction. The only statutory provisions bearing on the question, except the statutory definition of a public officer, are these sections of the Civil Code of 1902:

"Sec. 785. The county board of commissioners shall have general supervision over the paupers and the poorhouse and farm of the county, and the said board shall provide all necessary buildings for the accommodation of the poor of the county, with sufficient tillable land to give employment to all paupers able to work, and said buildings and lands shall be designated as the poorhouse and farm of the county.

"Sec. 786. Said board shall be empowered to make all necessary rules and regulations for the government of the county poorhouse and farm, to appoint a superintendent, with such assistants as may be needed, to provide means for the employment as may be best suited to the inmates of the poorhouse, to see that every pauper able to work is employed, and to appoint one or more physicians to the poorhouse, who shall furnish medical aid to the indigent sick."

Accepting any or all of the many definitions of public office which have been laid down by jurists, it is still often difficult to say whether a particular position is an office or a mere employment. United States v. Hartwell, 73 U.S. 385, 18 L.Ed. 830; United States v. Germaine, 99 U.S. 508, 25 L.Ed. 482; Eliason v. Coleman, 86 N.C. 235; State v. Hocker (Fla.) 63 Am. St. Rep. 181, note; Opinion of Justices, 3 Me. 481; 23 Am. & Eng. Enc. 322; McCornick v. Thatcher, 8 Utah, 294, 30 P. 1091, 17 L. R. A. 243, note. Laying aside for the moment the statutory definition of a public officer, we venture to think an examination of these and other authorities will lead to the approval of the following definitions as sufficiently expressing the generally accepted distinction between a public officer and an employé: One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer. Conversely, one who merely performs the duties required of him by persons employing him under an express contract or otherwise, though such persons be themselves public officers, and though the employment be in or about a public work or business, is a mere employé. The position of superintendent of the poorhouse and farm is created by statute law, and not by the county board of commissioners. The person to be appointed to the position is designated by statute a "superintendent," and that term itself connotes the assumption of responsibility and the exercise of discretion in the details of the management of the poorhouse and farm, though subject to the general supervision of the county board of commissioners. The care for the indigent is universally recognized as falling within the sovereign power of the state, and hence the superintendent, in managing the details of the institution provided by the State for the indigent and helpless, exercises a part of the sovereign power. The public is evidently concerned in the performance of these duties; and it is equally evident the duties are not intermittent or occasional, but continuing throughout every moment from appointment to removal or resignation. The position, therefore, comes within all the terms of the generally accepted definitions of a public officer, as distinguished from an employé.

Act 1901 (23 St. at Large, p. 754) contains this definition of a public officer: "The term 'public officers' shall be construed to mean all officers of the state that have heretofore been commissioned, and trustees of the various colleges of the state, members of the various state boards, dispensary constables, and other persons whose duties are defined by law." The literal meaning of the words "other persons whose duties are defined by law" could hardly have been intended; for the duties of guardians administrators, and other trustees are defined by law, and yet it could scarcely have been the intention to include such persons in the definition of public officers. The intention probably was to include in the definition all persons whose public...