State v. Sanders

• Decision Date: 30 April 1920
• Docket Number: 12.
• Citation: 110 S.E. 808,118 S.C. 498
• Parties: STATE EX REL. WOLFE, ATTY. GEN., v. SANDERS.
• Court: South Carolina Supreme Court

110 S.E. 808

118 S.C. 498

STATE EX REL. WOLFE, ATTY. GEN., v. SANDERS.

No. 12.

Supreme Court of South Carolina

April 30, 1920

Proceeding by the State, on relation of Samuel W. Wolfe, Attorney General, on complaint of C. C. King against J. Olin Sanders to determine title to the office of sheriff of Anderson county as between the parties. Judgment for plaintiff.

Samuel M. Wolfe, Atty. Gen., Watkins & Prince, of Anderson, and Martin & Blythe, of Greenville, for plaintiff.

Bonham & Allen, A. H. Dagnall, and Greene & Earle, all of Anderson for defendant.

HYDRICK J.

Ths is an action in the original jurisdiction of this court, to determine the right and title to the office of sheriff of Anderson county as between the plaintiff, King, and the defendant, Sanders.

In January, 1919, a vacancy in the office was created by the resignation of the regularly elected incumbent, and the defendant was appointed to fill the vacancy. On January 23 1920, after due hearing, his excellency, the Governor revoked the defendant's commission and removed him from the office, and appointed and commissioned the plaintiff, King, to fill the vacancy. King duly qualified and demanded possession of the office and the records thereof from defendant, who refused to surrender the office on the ground that the Governor was without power to remove him.

The ground of removal was the misconduct of the defendant as set forth in the following affidavit of a policeman of the city of Anderson:

"That on or about the night of October 16, 1919, while away from his home in said city, on duty, he had occasion to go to his home unexpectedly; that upon arriving there he found that his wife was not in their bedroom, but found another bedroom locked, and, demanding admittance, he discovered Sheriff J. Olin Sanders in there with deponent's wife, and both admitted that they had there been guilty of illicit sexual relations; that when deponent entered the room, the said Sanders covered him with a pistol, told him (deponent) if he moved he would kill him, and kept deponent covered with the pistol until he (Sanders) left the house."

On the verified complaint, the Chief Justice issued an order at chambers, filed March 6th, to the effect that the summons and petition, which was also called a complaint, be served upon defendant, and that he have 20 days in which to answer the complaint, and that the case be docketed for hearing by the court on March 30th. When the case was called for hearing on that day, defendant appeared and objected to the jurisdiction of the court, on the ground that only the order of the Chief Justice and the petition or complaint had been served upon him, and that these had not been served until the 10th of March, which did not give him the full time, 20 days, allowed by law for the filing of his answer or demurrer to the complaint. He further objected to the jurisdiction on the ground that no summons had been served upon him. There were other objections to the jurisdiction, but they were not considered at that time, because the Court sustained the objection that defendant had not had the full time allowed him by law for answering or demurring to the complaint.

Thereupon an order was prepared and submitted to the court as embodying its decision. That order provided that, in order that defendant might have the full time allowed by law for pleading to the complaint, the hearing be set for April 20th. It also provided that the previous order of the Chief Justice and the petition, which was variously styled the petition and the complaint, would be regarded as the summons and complaint. Defendant's attorneys suggested no objection to the order, or to any of its provisions, and it was signed and filed on March 30th.

On call of the case, on April 20th, defendant again objected to the jurisdiction of the court on the ground that no summons had ever been served upon him. The provision of the order of March 30th, above referred to, that the previous order of the Chief Justice and the petition would be regarded as the summons and complaint, is conclusive of that objection.

We agree with defendant that Code Civ. Proc. § 462, abolished the writ of quo warranto and proceedings by information in the nature of quo warranto, which were usually commenced by the service of a rule to show cause and provided that the remedies theretofore obtainable in that manner should thereafter be obtained by a civil action. which the Code prescribes (section 177) shall be commenced by the service of a summons. It follows that a summons should have been served upon defendant. State v. Tollison, 95 S.C. 58, 78 S.E. 521. And it appears that a summons in the usual form was prepared and issued, but for some reason, unexplained, it was not served. But, under the circumstances, the failure to serve it was not fatal to the jurisdiction.

The purpose of the summons is to acquire jurisdiction of the person of the defendant and to give him notice of the action and an opportunity to appear and defend. While Code Civ. Proc. § 178 et seq. prescribes the requisites of the summons, it does not provide that it shall be in any particular form. And when we consider the purpose of the summons, in the light of the proceedings, had in this case, particularly the provisions contained in the order of the Chief Justice and the allegations of the petition or complaint, and the prayer thereof, it is clear that the objection of defendant is purely and highly technical, and that to sustain it would be to sacrifice substance to form, because the order and the petition together contained substantially every requisite of a summons prescribed by the Code, and defendant was neither misled nor prejudiced in the slightest by the failure to serve him with a summons in due and regular form. While, as said, the service of a summons is the manner prescribed by the Code, and the usual means of acquiring jurisdiction of the person of the defendant, and therefore it ought to be observed in practice, as ought all other rules prescribed for an orderly system of procedure, nevertheless, it is well understood by the profession, and it has frequently been held by the courts, that it is not the only method by which jurisdiction of the defendant may be acquired. See Lyles v. Haskell, 35 S.C. 391, 14 S.E. 829. There are other reasons why this objection should not be sustained, but we deem it unnecessary to state them.

The next objection to the jurisdiction is that section 466 of Code Civ. Proc. requires that, before the action can be brought, leave must be obtained from a circuit judge, which was not done. That section provides that--

"An action may be brought by the Attorney General in the name of the state, upon his own information, or upon the complaint of any private party, or by a private party interested, on leave granted by a circuit judge, against the parties offending, in the following cases."

The cases specified include a case like this. Our construction of the language quoted is that, when the action is brought by the Attorney General, either upon his own information, or upon the information of a private party, leave of a circuit judge to bring the action is not required, because the Attorney General is the highest executive law officer of the state. He is charged with the duty of seeing to the proper administration of the laws of the state, and his duties are quasi judicial. It was therefore assumed by the Legislature that he would act fairly and impartially in the discharge of his duties, and that he would not lend his official sanction to an unwarranted action by which the right or title to an office might be brought in question. But no such presumption was indulged in favor of the action of a private party. Therefore it was provided that, before a private party could bring such an action on his own initiative, he must make such a prima facie showing as would warrant a circuit judge in granting him leave to do so, and must obtain such leave.

Furthermore, when the remedy in question was given by means of a civil action, the Legislature contemplated that such actions would ordinarily be brought in the circuit court, because that court has original jurisdiction of all civil actions, and therefore naturally the provision as to obtaining leave of a circuit judge was inserted, and it was intended to apply only to actions brought in the circuit court. It does not apply to an action brought in the original jurisdiction of the Supreme Court.

Coming to the merits, the main question is whether the Governor had authority under the law to remove defendant from office. The provisions of the Constitution and statutes pertinent to the inquiry are as follows:

Section 27 of article 3 of the Constitution provides:

"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."

As no mode of trial or removal of a sheriff for the causes specified is provided in the Constitution, we must look to the statutes to ascertain the manner of removal provided by law in such cases.

Section 695, vol. 1, Civil Code, provides:

"The following officers shall be appointed by the Governor: 1. [ Officers of the executive

...