Stone v. Mahon

• Decision Date: 09 May 1911
• Parties: STONE v. MAHON.
• Court: South Carolina Supreme Court

71 S.E. 300

88 S.C. 576

STONE v. MAHON.

Supreme Court of South Carolina

May 9, 1911

Appeal from Common Pleas Circuit Court of Greenville County; S.W. G Shipp, Judge.

Proceeding by Richard G. Stone against G. H. Mahon to require cause to be shown why defendant occupies a public office. Order discharging the rule to show cause, and plaintiff appeals. Appeal dismissed.

The following is the opinion of Shipp, J., of the court below:

"On the 25th day of March, 1909, upon affidavit of Richard G Stone, hereto attached, I issued the rule against G. H Mahon, requiring him to show cause before me at my chambers at the courthouse at Greenville, S. C., on the 30th day of March, 1909, by what authority he exercises and enjoys the office of recorder of the police or municipal court of the city of Greenville, reference to which affidavit and rule is hereby craved.

"It will be observed that in his affidavit said Richard G. Stone states that he was elected by the city council of Greenville on the 21st day of September, 1907, to the office of recorder of the police or municipal court for the city of Greenville for a term of four (4) years, in accordance with the provisions of an act of the General Assembly of said state entitled 'An act to establish municipal courts, to define the powers and jurisdiction of such courts and to provide for the conduct of business thereof in cities over twenty thousand and not exceeding fifty thousand inhabitants,' approved on the 26th day of February, A. D. 1902; that he duly qualified and was duly commissioned and entered upon the duties of said office, etc. He further charges that the said G. H. Mahon thereafter 'usurped said office of recorder and claims to exercise the duties thereof.'

"Said G. H. Mahon answered said rule, and, among other things denies that he is now exercising the duties of the office of recorder, and states that he is mayor of the city of Greenville, and as such presides over the police or municipal court, without compensation, at the request of the council.

"He further alleges that the office of recorder or municipal court of Greenville was abolished by an ordinance of the city council of Greenville on the 22d day of September, 1908, which ordinance repealed the ordinance of August 8, 1907, establishing said municipal court, which said ordinance, it is alleged, was passed in pursuance of an act of the Legislature, approved on the 19th day of February, 1904, authorizing the establishment of a municipal court in cities whose population is not less than 4,000 and no more than 20,000.

" The return further states that the city of Greenville obtained its charter under the general law providing for incorporation of a city under 20,000 inhabitants, and that, as a matter of fact, at the time the ordinance was passed, establishing the municipal court for the city of Greenville, and now, the said city has less than 20,000 inhabitants.

"The return further alleges that after the ordinance was passed, repealing the ordinance establishing said court, the plaintiff, without protest, vacated his office and has since appeared before the said mayor's court in several cases, representing the defendant, and has never objected to the jurisdiction of said court. There is no traverse of the return of the mayor, and the facts alleged must therefore be considered as true.

"Counsel for respondent concedes that if the said Richard G. Stone held his office under the act of 1902, by which the Legislature itself established municipal courts in cities of over 20,000 people, that the city council of Greenville had no authority, by ordinance or otherwise, to interfere with the provisions of said act. They contend, however, that the said municipal court was not established by the Legislature under that act, but was established by ordinance in pursuance of the act of 1904, and which declared that: 'It shall be lawful for the city council of any city in this state whose population by the last census is not less than four thousand and not more than twenty thousand, *** by an ordinance duly enacted, to establish in such city a municipal court for the trial and determination of all cases arising under the ordinances of such city.'

"They further contend that, inasmuch as the Legislature does not itself establish the court or create the office, but has delegated the power to certain municipalities therein mentioned, the Legislature impliedly recognizes the general right of a municipality to repeal all ordinances enacted by it, and that in this case the said ordinance was repealed.

"It is my opinion that the ordinance establishing the...