State v. Tollison

• Decision Date: 30 May 1913
• Citation: 78 S.E. 521,95 S.C. 58
• Parties: STATE ex rel. LINDSEY v. TOLLISON.
• Court: South Carolina Supreme Court

78 S.E. 521

95 S.C. 58

STATE ex rel. LINDSEY v. TOLLISON.

Supreme Court of South Carolina

May 30, 1913

Action by the State of South Carolina, on the relation of P. N Lindsey, against E. T. Tollison to settle a controversy as to a public office. Petition dismissed.

Kurtz P. Smith, of Anderson, for appellant. Bonham & Watkins, of Anderson, for respondent.

WOODS J.

The court regrets that it cannot, without a violation of the statute law of the state, settle the controversy as to the office of supervisor of registration in this proceeding. But the defendant has interposed a ground of demurrer which seems fatal to the proceeding.

The plaintiff, Lindsey, filed his petition in this court in the name of the state by leave of the Attorney General, claiming to be one of the supervisors of registration of Anderson county, and alleging that the defendant, Tollison, without authority of law is holding the office, and refuses to surrender it. The relief asked was as follows: "The plaintiff prays that this court in the exercise of its original jurisdiction issue its order to the said E. T. Tollison, defendant above named, requiring him to answer and show by what authority he claims to hold and exercise the duties as a member of the board of registration of Anderson county. That it be adjudged that the said E. T Tollison is unlawfully exercising the said office, and that he be excluded therefrom, and that it be adjudged that the said P. N. Lindsey is entitled to hold and enjoy said office. That the said E. T. Tollison be required to pay the cost of this action, together with a fine, not to exceed two thousand ($2,000.00) dollars, as the court may adjudge."

On this verified petition the Chief Justice made an order requiring the defendant to show cause before this court on May 19 1913, why the prayer of the petition should not be granted and requiring him to serve on the plaintiff's attorney a copy of his answer on or before May 17, 1913. The order was not served on the defendant until May 14, 1913. The defendant appeared and demurred to the jurisdiction; the ground being that the relief sought by the plaintiff could be obtained only by a civil action under sections 462 and 466 of Code of Procedure, and that a civil action could be commenced only by the service of summons in the form prescribed by the Code, requiring an answer to be served in 20 days.

Section 462, and so much of section 466 of Code of Procedure as is germane, read as follows:

"462. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished; and the remedies heretofore obtainable in those forms may be obtained by civil action under the provisions of this chapter. But any proceeding heretofore commenced, or judgment rendered, or right acquired, shall not be affected by such abolition."

"466. 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: (1) When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or

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