State v. Buttz

• Decision Date: 20 September 1877
• Citation: 9 S.C. 156
• Parties: STATE OF SOUTH CAROLINA v. BUTTZ.
• Court: South Carolina Supreme Court

9 S.C. 156

STATE OF SOUTH CAROLINA
v.
BUTTZ.

Supreme Court of South Carolina.

Sept. 20, 1877.

1. A Solicitor who accepts the office of Representative in Congress thereby vacates his office of Solicitor.

2. Where one holding an office accepts another which is incompatible therewith, he thereby vacates the first.

3. There is nothing in the Constitution of this State which abrogates the common law rule that the same person cannot hold at the same time two incompatible offices.

4. The office of State Solicitor and Member of Congress are incompatible with each other.

This was an information filed in the Supreme Court to oust the defendant from the office of Solicitor of the First Circuit of the State.

The case is fully stated in the opinion of the Court.

W. Jervey, for relator:

It appears from the evidence that Charles W. Buttz was a candidate for the office of Solicitor of the First Judicial Circuit at the

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election of November 7th, 1876, and, claiming to have been elected, filed his bond, and on November 30, 1876, received from Daniel H. Chamberlain, Governor of South Carolina, his commission as such Solicitor; and that subsequently, to wit, at the first sitting of the Court of General Sessions for Charleston County, in said Circuit, he appeared and duly entered upon the discharge of the duties of said office. It further appears that the said Charles W. Buttz was at the same election likewise a candidate to fill the unexpired term of Representative of the State of South Carolina to the Forty-fourth Congress, and that after he had received his commission as Solicitor as aforesaid and entered upon the duties of the said office, he did, on or about the 23d day of January, 1877, qualify as Representative to Congress and took his seat as such. We claim:

1st. That the two offices of Solicitor of the First Judicial Circuit of the State of South Carolina and Representative of the State of South Carolina in Congress are incompatible; and,

2d. That two incompatible offices cannot be performed by one and the same individual; and the acceptance of the latter of two such offices forfeits and makes vacant the former.

1. As to the incompatibility of the two offices-

5 Bac. Abr., 205: “Offices are said to be incompatible and inconsistent, so as to be executed by the same person, when, from the multiplicity of business in them, they cannot be executed with care and ability, or when their being subordinate and interfering with each other it induces a presumption they cannot be executed with impartiality and honesty.”-4 Inst., 100.

Under the first division of this definition come the two offices in question. The duties to be performed in the one require the residence of the incumbent in Washington for at least a considerable portion of the year, besides which he is at all times subject to the call of the United States government for a meeting of Congress; while it is required by law that the other (the Solicitor) shall reside within his Circuit. (Con., Art. IV, § 29.) And the amount of business in either position would make it impossible for the same individual to execute the duties of the other office with “care and ability.”

Nor can the incumbent claim that while attending to his duties in the one office in his own person he may conduct the business of the other by deputy. It will not be contended that he may send his deputy to Congress.

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Can the Solicitor perform his office by deputy?

5 Bac. Abr., 207: “A judicial officer cannot, it is said, make a deputy, unless he hath a clause in his patent to enable him, because his judgment is relied on in matters relating to his office, which might be the reason of the making of the grant to him. Neither can a ministerial officer depute one in his stead if the office be to be performed by him in person; but when nothing is required but a superintendency in the office he may make a deputy.”

The office of Solicitor is instituted by the fourth Article of the Constitution, which treats of the “judicial department;” and it is clear, from a consideration of his duties, that he is in fact, as well as in design, a judicial officer. To his judgment and judicial discretion, in the first instance, are submitted all questions involving the lives and liberties of the people of his circuit, and on his personal attainment and knowledge of the law, to a great extent, depends the protection of the people against crime and lawlessness. Even if, however, it be denied that the Solicitor hold a judicial office, yet the office is certainly one of “trust and confidence,” whereof there can be no deputy.-2 Jacobs' L. D., 252. Furthermore, with regard to certain other elective officers, such as Sheriff, Clerk and Coroner, there are statutory provisions authorizing the appointment of deputies, (Rev. Stat., Ch. XX, § 11; Ch. XXII, § 1; and Ch. XXI, § 6,) while no such power is given the Solicitor; on the contrary, the Circuit Judge is authorized by law to appoint a Solicitor pro tem. in the event of an absence of the incumbent or a temporary vacancy.

2. Two incompatible offices cannot be held by one and the same individual, and the acceptance of the latter of two such offices forfeits and makes vacant the former.-5 Com. Dig., 190. “So the grant of an office to one who has another office incompatible is not good, for the first office will thereby be void.”- Doug., 398. “So a man shall lose his office if he accept another office incompatible.”-Dyer, 197.

In The King vs. Godman, it is stated “that if the two offices are incompatible then the acceptance of the higher, ipso facto, vacates the other.”-Doug., 398, (note). And this rule, says Lord Coke, “is of that importance that if all civil offices were only executed, each by a different person, it would be for the good of the commonwealth,

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advancement of justice and preferment of deserving men.”

In Milward vs. Thatcher, Buller, J., says: “If they be incompatible, the election to the latter office is good, because the acceptance of the second vacates the first office. **** If the two offices be incompatible, the acceptance of the latter vacates the former.”

And, likewise, Amherst, J., in the same case says: “I think that the acceptance of the latter does absolutely and ipso facto avoid the former, although the superior office, if they be incompatible.”-2 T. R., 81.

And in The King vs. Sir W. Trelawney, Lord Mansfield says: “It seems to me very strong that if these two offices were incompatible the acceptance of the latter would imply a surrender of the former.”-3 Burr., 1616.

So much for the English law on this subject. In America, where offices are not in the gift of a crown, but where the sovereignty resides in the people, this plurality of office is looked upon with even more disfavor than in England. Here, too, there is no power to compel a person to accept an office. He cannot prevent the people voting for him for any number of offices they see fit; but he is not obliged to accept any one of them, and if he does he must elect which office he will accept if they are incompatible. This distinction is illustrated by the case of Rex vs. Patterson, 4 B. & Ad., (24 Com. Law R., 11,) wherein it is decided that the “acceptance of an incompatible office does not operate as an absolute avoidance of a former office in any case where the party could not divest himself of that office by his own act.” This exception does not find expression in our books, and is not necessary in the United States, where every man is free to accept or resign any office to which he may be elected without the permission or acquiescence of the sovereign power.

It is laid down in McCrary's Am. Law of Elections, Section 253, as the general rule, that “an office may be abandoned by removal from the State, County or district to which the officer is restricted by the law of his office; by accepting an incompatible office; or by the relinquishment of any express qualification; or by the assumption of any absolute disqualification, or by resignation.”

McCrary's Am. Law of Elections, Sections 238, 239: “Whether the incumbent of an office becomes disqualified by accepting

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another depends upon the question whether the law forbids the holding of the two offices by the same person; and if not, then upon the further question whether the functions and duties of the two offices are incompatible. *** If there is a statutory or constitutional provision prohibiting the same person from holding both offices at the same time, then, of course, the question of their incompatibility does not necessarily arise, for in such a case the acceptance of the second is ipso facto the abandonment and resignation of the first, though the duties of the two may be entirely compatible. But if the statute and Constitution are silent upon the subject, then the question whether the two offices can be held at the same time by the same person depends upon their compatibility.”

For example, suppose A. B. were the successful candidate for Sheriff and Clerk of the Court at the same election. There is no constitutional nor statutory provision forbidding A. B. from accepting and discharging the duties of both these offices; and yet it would hardly be contended that he could act in both capacities and draw the emolument of both offices at the same time, because these offices are incompatible; and the case in point is even more exaggerated than this, because the duties of Sheriff and Clerk may be performed in the same County, perhaps in the same building, while the duties of the Solicitor and member of Congress must be performed in different portions of the United States. Moreover, these two offices are in different departments of government, the one being judicial and the other legislative, the holding of which by one person is contrary to the spirit of our laws, as evinced by that constitutional provision which provides that the three departments of government “shall be forever separate...