State v. Thompson

Decision Date31 May 1923
Docket Number11249.
Citation117 S.E. 717,124 S.C. 474
PartiesSTATE EX REL. WOLFE, ATTY. GEN., ON COMPLAINT OF KNOBELOCH, ALDERMAN, v. THOMPSON.
CourtSouth Carolina Supreme Court

Proceeding by the State on the relation of Samuel M. Wolfe, Attorney General, on the complaint of G. J. Knobeloch, individually and as Alderman of the City of Charleston, against A Clifford Thompson. Complaint dismissed.

The following is the complaint filed in the case:

The plaintiff, complaining of the defendant, alleges as follows:
1. That Samuel M. Wolfe is now, and at the times hereinafter mentioned was, Attorney General of the state of South Carolina, and that G. J. Knobeloch is now, and at the times hereinafter mentioned was, a resident and citizen of the city of Charleston, state of South Carolina, and is ward alderman from and a resident of ward 8 in the city of Charleston.
2. That the act of the General Assembly of the state of South Carolina, ratified August 13, 1783, incorporating the city of Charleston, provides:
"The intendant [of the city of Charleston] shall and may, as often as occasion shall require, summons the wardens to meet together in city council * * * who, with the intendant, shall be known by the name of, and they are hereby declared to be, the city council of Charleston, * * * and they are hereby also authorized to appoint a recorder treasurer, clerk, coroner, harbor master, fire masters constables, and all other officers (affixing their salaries and fees of such officers respectively) as shall appear to them requisite and necessary for carrying into effectual execution all by-laws, rules and ordinances they may make for the good order and government of said city, and the persons residing within same. * * *"
And that by an act ratified December 31, 1836, it was provided that:
"The name and title of the intendant and wardens of the respective wards of the city of Charleston, as expressed in the act passed the thirteenth day of August, one thousand seven hundred and eighty-three, entitled "An act to incorporate Charleston," and in all other acts to amend the charter of the city, be changed to the name and title of the mayor and aldermen of the respective wards in the city of Charleston; and all laws of the state and ordinances of the city council of Charleston, relating to the powers, election and term of office, and duties of the said intendant and wardens, shall be, and the same are hereby made of force in relation to the mayor and aldermen of the city of Charleston, in the same manner as if they, or either of them, had been therein specially named by that title. And the said mayor and aldermen shall meet together in city council, with the same powers and authority as the said intendant and wardens, under the act before mentioned."
"That the said mayor and aldermen of the city of Charleston shall be, and are hereby respectively vested with and shall exercise the same powers and authority that are now vested in, and exercised by the intendant and wardens of the wards of the city of Charleston, under any of the acts of Assembly and ordinances of the city council of Charleston."
3. That although the city council of Charleston alone is authorized by its charter, the provisions of which are hereinbefore set forth, to appoint the clerk of said city council, nevertheless the city council of Charleston adopted an ordinance whereby it was provided:
(1) "On and after the passage of this bill all vacancies in any of the offices heretofore filled by an election in council or by appointment of the mayor, subject to confirmation of council, shall be filled exclusively by the appointment of the mayor, subject to the confirmation of city council."
(2) "That all ordinances or parts of ordinances inconsistent herewith be and the same are hereby repealed."
And that the said ordinance was ratified by the said city council at a meeting held on the 12th day of December, 1922.
4. That the said G. J. Knobeloch, as ward alderman of the 8th ward of the city of Charleston, voted against said ordinance, and opposed the adoption thereof.
5. That said ordinance deprives the said G. J. Knobeloch of a right given to him and to the other members of the said city council to appoint the clerk of the said city council, and that if said ordinance is enforced he will be prevented from exercising a duty devolved upon him and a privilege conferred upon him as a member of city council of Charleston by the act of the General Assembly of South Carolina incorporating said city of Charleston, and the amendments thereto.
6. That John P. Grace, mayor of said city of Charleston, in the attempted exercise of the authority claimed to have been vested in him by said ordinance, did on or about the 27th day of March, 1923, appoint A. Clifford Thompson, the defendant herein, to be clerk of the city council of the city of Charleston, and that at a meeting of the said city council said appointment was confirmed by said city council, on the 27th day of March, 1923, all of which will more fully appear by reference to the affidavit of Joseph C. Barbot, hereto annexed as Exhibit "A."
7. That the said G. J. Knobeloch, as ward alderman of the 8th ward, protested against said appointment and refused to vote for or against the confirmation of said appointment, and stated at said meeting that he refused to consider the attempted appointment by the said mayor on the ground that the ordinance under which the mayor was attempting to act was and is invalid, as being beyond the powers of the said city council, all of which will more fully appear by reference to the affidavit of Joseph C. Barbot, hereto annexed as Exhibit "A."
8. That, although he was not appointed thereto by the said city council of Charleston, the defendant afterwards, to wit, on or about the 28th day of March, 1923, usurped the office of the clerk of the city council of Charleston, and entered upon the discharge of the duties of said office and unlawfully holds and exercises the same.
Wherefore plaintiff prays judgment that the defendant be required to answer the premises and show by what warrant and authority he holds and exercises the office of the clerk of the city council of Charleston; that a time be fixed by this court for the hearing of this cause; that the ordinance hereinbefore set forth in paragraph 3 hereof be declared invalid, null, and void; that the office of the clerk of the city council of
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1 cases
  • Walker v. Grice
    • United States
    • South Carolina Supreme Court
    • August 29, 1931
    ... ... operates as a removal of the incumbent from the time he ... receives notice of the appointment." ...          In ... State v. Rhame, 92 S.C. 455, 75 S.E. 881, 882, Ann ... Cas. 1914B, 519, the correctness of the principle declared in ... the Sanders Case is recognized, ... Thompson, 124 S.C. 474, 117 S.E. 717 ...          Where a ... power to remove is at pleasure, the courts will not inquire ... into the cause or ... ...

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