State ex rel. Williamson v. Wannamaker

Decision Date20 May 1948
Docket Number16081.
PartiesSTATE ex rel. WILLIAMSON v. WANNAMAKER et al.
CourtSouth Carolina Supreme Court

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Wise, Whaley & McCutchen and C. T. Graydon, all of Columbia, for appellant.

John M. Daniel, Atty. Gen., T. C. Callison and J Monroe Fulmer, Asst. Attys. Gen. and Samuel Want, of Darlington, for respondents.

FISHBURNE, Justice.

This action was brought by the plaintiff to determine title to office, and comes before this Court on appeal from the judgment of the lower court sustaining the demurrer filed by the defendants to the complaint.

On the 31st day of March 1945, J. Stanley Williamson was appointed to the office of Chief Highway Commissioner of the State of South Carolina, as provided by Section 5868 of the Code. In accordance with the foregoing section, Williamson was appointed by the State Highway Commission for the full term of four years. He promptly qualified by giving bond as provided by the statute, and entered upon the duties of his office. At a regular meeting held on July 17, 1947, the State Highway Commission by a majority vote undertook to remove and did remove, the appellant from his office as Chief Highway Commissioner and immediately thereafter appointed the respondent, C. R. McMillan in his place. The appellant was given no notice that he was to be removed from his office was not served with any formal charges or grounds for removal, and was not afforded any opportunity to be heard in his defense.

Mr. Williamson had served as Chief Highway Commissioner for the preceding six and one-half years, and prior to that time as an employee in the State Highway Department for twenty years or more. During his incumbency as Chief Highway Commissioner no action taken by him in the discharge of his duties had ever been reviewed or reversed by the Commission, nor had any decision made by him in connection therewith been overruled.

After making the foregoing recitals, the complaint alleges that at the meeting of the State Highway Commission held on July 17, 1947, the appellant demanded that he be furnished with some formal ground or complaint, constituting a basis for his removal, but the Commission refused so to do, and proceeded to summarily oust him from office without preferment of any charges at all. The appellant asserts that he is still the legal holder of the office of Chief Highway Commissioner, has tendered his continuing services as such to the Commission, and alleges that the respondent, C. R. McMillan who, by the action of the Commission, has displaced him, now unlawfully holds and exercises the office of Chief Highway Commissioner. Attached to the complaint, and made a part thereof, are two exhibits which contain the minutes of the proceedings had at the meeting, and the resolution adopted by the State Highway Commission discharging the respondent from his office.

On the part of the plaintiff the contention is made that his term of office has been declared by the statute to be for a fixed period of four years; that his term has not expired; that he does not hold the office subject to the arbitrary will or discretion of the Commission, and, therefore, could not be legally removed except for cause and after an opportunity to be heard. When this case came before the lower court it was there held, in accordance with the claim of respondents, that under Section 5868 of the Code the State Highway Commission had the right and power to remove the Chief Highway Commissioner at its, pleasure, and that the latter accepted the office subject to this power.

Article 1, Section 11, of the Constitution provides: 'No person shall be elected or appointed to office in this State for life or during good behavior, but the terms of all officers shall be for some specified period, except Notaries Public and officers in the militia.'

The office of Chief Highway Commissioner is not one provided for in the Constitution. It, like that of the State Highway Commission itself, is created by statute. It is conceded that the Legislature, in creating the office of Chief Highway Commissioner, had the right, subject to the constitutional restriction, to declare the term or tenure thereof, and to specifically empower the Commission to remove the incumbent at will or pleasure without assigning any cause.

To determine whether the State Highway Commission was clothed by the legislature with the absolute power of arbitrary dismissal, we turn to the construction of Section 5868 of the Code, and we deem it best to set forth this section in its entirety. It reads as follows:

'The state highway commission is hereby authorized and directed to appoint a chief highway commissioner who shall be the administrative and executive head of the state highway commission to act when the highway commission is not in session with all the powers and rights that belong to the said commission, but any act of the chief highway commissioner shall be subject to review or reversal by the state highway commission or a majority thereof. The term of office of the chief highway commissioner shall be four years, and the person appointed to this position shall be a citizen of practical and successful business and executive ability, and his compensation shall be fixed by the highway commission which shall not exceed $6,000.00 per annum. The right to remove or discharge the chief highway commissioner is hereby reserved to the members of the state highway commission, or a majority thereof. The chief highway commissioner shall devote his full time to the duties of this office, and immediately upon qualification shall give a bond to the State of South Carolina in the sum of fifty thousand ($50,000.00) dollars for the faithful performance of his duties. All moneys expended by the highway commissioner shall be upon the authority and approval of the highway commission and all authority for the appointment of employees heretofore vested in the state highway engineer and the secretary of the highway commission is hereby vested in the chief highway commissioner who shall make all appointments with the consent or approval of the members of the highway commission, or a majority thereof, as he may find necessary for the proper conduct of the department.' (Emphasis added.)

The appellant contends that the statute is to be construed in accordance with its language as creating a fixed term for the office of Chief Highway Commissioner, marked by a definite number of years for its duration. The power of the Commission to remove is not denied. It is the exercise of the manner of removal which is in question. The respondents argue that the statute is susceptible of interpretation as meaning that the office of Chief Highway Commissioner is one having an indefinite term, made so by the inclusion of the right to remove; and, therefore, confers upon the Commission the unquestioned power to remove or discharge the incumbent at will.

At common law, an officer could only be removed for cause and after a hearing. Throop on Public Officers 358, State v. Rhame, 92 S.C. 455, 75 S.E. 881, Ann.Cas.1914B, 519. This result followed from the English rule that officers were incorporeal hereditaments and one might have an estate in them. The American conception of a public office is that of a public trust or agency created for the benefit of the people. Under this rule the incumbent has no property right but the office is to be administered under legislative control in the interest of the people. Where an office is created by statute, it is wholly within the control of the legislature and 'is taken in further view of all the vicissitudes of legislative action, including removal for such cause as the legislative assembly may deem sufficient.' State ex rel. Bullock v. District Court, 62 Mont. 600, 205 P. 955, 957.

It is a general rule that when the term or tenure of a public officer is not fixed by law, and the removal is not governed by constitutional or statutory provision, the power of removal is incident to the power to appoint. In other words, the appointing power, where the term is not fixed by law, may remove the appointee at pleasure and without notice or opportunity to be heard. State v. Ansel, 76 S.C. 395, 57 S.E. 185, 11 Ann.Cas. 613. 43 Am.Jur. Sec. 183, Page 31. But the extent of the power and the manner of its exercise are to be determined by the working of the applicable statute.

If the legislature does not designate the term of the office, the appointee will hold only at the will of the appointing power and may be removed at any time without notice or hearing. 43 Am.Jur. Sec. 184, Page 32. This rule has been declared by our Court in Sanders v. Belue, 78 S.C. 171, 58 S.E. 762. In that case the Court held that the power of removal at pleasure is incident to the power of appointment, unless the law provides duration of the official term or mode of removal. To the same effect...

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  • Langford v. State Bd. of Fisheries
    • United States
    • South Carolina Supreme Court
    • June 12, 1950
    ...Moreover, while the question does not seem to have been raised in the Court below, it is quite clear upon principle, and, as stated in the Wannamaker case, the appointing body may remove, whether with or without a hearing, as the circumstances may require. The plaintiff, Langford, was appoi......

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