State ex rel. Thompson v. Seigler

• Decision Date: 23 August 1956
• Docket Number: No. 17203,17203
• Citation: 230 S.C. 115,94 S.E.2d 231
• Parties: STATE ex rel. G. Haskell THOMPSON, Plaintiff, v. John I. SEIGLER and State of South Carolina, Defendants.
• Court: South Carolina Supreme Court

Page 231

94 S.E.2d 231

230 S.C. 115

STATE ex rel. G. Haskell THOMPSON, Plaintiff, v. John I. SEIGLER and State of South Carolina, Defendants.

No. 17203.

Supreme Court of South Carolina.

Aug. 23, 1956.

J. M. Moorer, Walterboro, for plaintiff.

T. C. Callison, Atty. Gen., James S. Verner, Daniel R. McLeod, Asst. Attys. Gen., Jefferies, McLeod & Unger, Walterboro, for defendants.

TAYLOR, Justice.

This case in the original jurisdiction of this Court concerns the validity of an order of Governor George Bell Timmerman, Jr., suspending Sheriff G. Haskell Thompson of Colleton County from office until the said Thompson is acquitted of the charges contained in an indictment by the Grand Jury of the U. S. District Court at Columbia, South Carolina.

Plaintiff, the suspended Sheriff, contends:

(1) A constitutional officer can be suspended by the Governor only in the manner provided by the Constitution.

(2) The act of the General Assembly under which the order of suspension was issued denies to him due process and equal protection of the law.

(3) The act of the General Assembly under which the order of suspension was issued does not apply when such indictment is in the Federal Courts.

On June 30, 1956, the Honorable George Bell Timmerman, Jr., Governor of South Carolina, by Executive Order 14 suspended G. Haskell Thompson, then Sheriff of Colleton County, from the office of Sheriff of Colleton County and appointed in his stead John I. Seigler until the said G. Haskell Thompson should be acquitted of indictments found against him by the Grand Jury of the United States Court on June 4, 1956, and June 5, 1956, charging him with interfering with a Federal Grand Juror and with violation of the Internal Revenue Liquor Laws of the United States.

On July 3, 1956, on the basis of the summons and complaint in an action entitled State ex rel. G. Haskell Thompson, Plaintiff, v. John I. Seigler, Defendant, in the absence of the Judge in the Fourteenth Circuit, His Honor, William H. Grimball, issued an order restraining and enjoining the defendant, John I. Seigler, from exercising any of the duties of the office of Sheriff of Colleton County under said Executive Order 14.

On the same date, to wit, July 3, 1956, on the basis of the summons and complaint in the case of The State of South Carolina ex rel. T. C. Callison, Attorney General, on the Complaint of John I. Seigler, v. G. Haskell Thompson, and in the absence of the Judge of the Fourteenth Circuit from the Circuit, His Honor, James M. Brailsford, Jr., issued a rule to show cause requiring the said G. Haskell Thompson to show cause why he should not turn over to John I. Seigler the office of Sheriff of Colleton County, and the books, papers, records and equipment appurtenant thereto.

Upon motion of counsel for plaintiff and the Attorney General on July 10, 1956, this Court passed an order assuming original jurisdiction of the causes, staying all further proceedings in the Court of Common Pleas for Collecton County, keeping in effect until further order of this Court the injunction issued by Judge William H. Grimball; making the State of South Carolina a party defendant to the first entitled action Thompson v. Seigler and requiring the defendant to plead to the merits of the first entitled action on or before July 16, 1956.

The order of suspension issued under an act of the General Assembly approved March 27, 1956, 49 St. at Large, p. 1841, reads as follows:

'Any State or county officer who is indicted in any court for any crime may, in the discretion of the Governor, be suspended by the Governor, who in event of suspension shall appoint another in his stead until he shall be acquitted. In case of conviction the office shall be declared vacant by the Governor and the vacancy filled as provided by law.'

Article 15, Secs. 1 and 4, Article 4, Sec. 22, Article 5, Sec. 30, and Article 3, Sec. 27 of the South Carolina Constitution of 1895 all refer to removal, suspension or disqualification of public officers, the wording of Article 3, Sec. 27 being:

'Officers shall be removed for incapacity, misconduct or neglect of duty, in such manner as may be provided by law, when no mode of trial or removal is provided in this Constitution.'

The powers of the General Assembly are plenary and not acquired from the constitution and it may enact such legislation as is not expressly or by clear implication prohibited by the constitution. It does not have been control of a constitutional office as to abolish, vary its term, prescribe a different mode of filling such office, remove or suspend the office holder unless authority for such action is found in the Constitution. However, it may provide for the removal of such officers as fail to meet the standards or requirements of the Constitution. Moseley v. Welch, 209 S.C. 19, 39 S.E.2d 133; Taylor v. Marsh, 211 S.C. 36, 43 S.E.2d 606; Beaufort County v. Jasper Co., 220 S.C. 469, 68 S.E.2d 421; Caldwell v. McMillan, 224 S.C. 150, 77 S.E.2d 798. See also West's Digest, Constitutional Law, k26.

Plaintiff relies strongly upon State ex rel. Huckabee v. Hough, 103 S.C. 87, 87 S.E. 436, 437, which was based upon McMillan v. Bullock, 53 S.C. 161, 31 S.E. 860, in which the Statute then under consideration was held to be unconstitutional; however, the Court in its opinion used the following language which is apropos here:

'The power here given to provide for the removal of officers for the causes specified carries with it, by implication, power to provide for the temporary filling of a vacancy so created by appointment or otherwise, until the office can, in due and regular course, be filled in the manner prescribed by the Constitution, unless it is otherwise provided in the Constitution, because it would not be reasonable to conclude that it was intended that the office should remain vacant. State [ex rel. Lyon] v. Bowden, 92 S.C. 393, 75 S.E. 866. It also carries with it the power to provide the manner of removal, which includes the power of providing for a temporary suspension as a step in and incident to the exercise of the power of removal; so that provision may be made for the temporary suspension of officers pending a hearing or trial, upon the result of which the exercise of the power of removal would depend. In such case, the suspension might, on account of the circumstances of the particular case, extend to the end of the term; but it would, nevertheless, be suspension, and the legal consequences of suspension, whether more or less favorable to the suspended officer, would ensue. McDowell v. Burnett, supra [92 S.C. 469, 75 S.E. 873].

'* * * the statute attempts to authorize indefinite suspension--not temporary suspension as a step in and incident to removal--and it makes no provision for the performance of the duties of the office during the suspension.'

The office of Sheriff was created by Article 5, Sec. 30 of the South Carolina Constitution of 1895 and further reference thereto reveals that Article VII, Sec. 8 has to do with removal of officers of charitable and penal institutions. Article XV, Sections 3 and 4 refer to impeachment and removal upon the address of two-thirds of each house of the General Assembly and these sections have no reference to Sheriffs, State ex rel. Wolfe v. Sanders, 118 S.C. 498, 110 S.E. 808; State ex rel. Richards v. Ballentine, 152 S.C. 365, 150 S.E. 46, 50, 66 A.L.R. 574. However, the Ballentine case is authority for the proposition that under an act of the General Assembly providing the mode of removal, the Governor may have the power to remove a Sheriff, the Court stating:

'Certainly this section makes no provision for the removal of a sheriff upon a general charge of 'incapacity, misconduct, or neglect of duty,' referred to in article 3, § 27. It provides for a special proceeding upon a particular charge of misconduct, the embezzlement of public or trust funds. The Governor is required to direct the immediate prosecution of the offending officer, and upon a true bill being found to suspend him and appoint another, until the acquittal of the officer charged. Upon his conviction the office shall be declared vacant (by the court, we assume, and not by the Governor), and the vacancy filled as may be provided by law. * * *

'In McDowell v. Burnett, 92 S.C. 469, 75 S.E. 873, 875, the court referring to this section, said: 'This applies to the removal of all officers, including magistrates, except the Governor; but, being limited to the misconduct of embezzlement, it has no application to other forms of misconduct or to incapacity or neglect of duty.' * * *

'It seems clear, therefore, that as a sheriff would not be subject to impeachment, or to removal upon the address of both houses of the General Assembly, article 15 cannot be said to have made provision for his removal. There being, then, 'no mode of trial or removal * * * provided in this Constitution' for the removal of a sheriff for the offenses named in article 3, § 27, the method of removal is left to the General Assembly * * *.'

From...