Walker v. Grice

Decision Date29 August 1931
Docket Number13232.
Citation159 S.E. 914,162 S.C. 29
PartiesWALKER et al. v. GRICE. KANAPAUX et al. v. McDONALD. SCHMANCKE et al. v. MOORER.
CourtSouth Carolina Supreme Court

Petitions for mandamus by Edward Walker and others against E. P. Grice Jr., and by W. T. Kanapaux and others against Edward R McDonald, and by George Schmancke and others against David R Moorer, which were heard together.

Petitions granted in first two cases, and petition in third case refused, and restraining order granted therein vacated.

John I Cosgrove, of Charleston, and R. E. Whiting, of Columbia, for petitioners.

George E. Grimball and J. Waties Waring, both of Charleston, for respondents.


In each of the above-entitled cases, there is an application to this court, in its original jurisdiction, for a writ of mandamus. By consent, all three of the cases were heard together, and we dispose of all of them in this one decision.

The case of Walker et al. v. Grice, and that of Kanapaux et al. v. McDonald, are identical in nature and for that reason will be discussed together.

The Democratic Party of the City of Charleston is reorganized every four years by meetings of ward clubs throughout that city. At these club meetings, there are elected, in addition to the regular officers, an executive committeeman and delegates to a city convention, which thereafter meets and adopts the constitution and rules of the party for the ensuing four years. By a provision of the constitution, the party is operated and controlled by an executive committee, twenty-four in number. On this committee, the constitution adopted by the convention confers certain powers and duties. Among these are the appointment of its officers (except the chairman and vice chairman, who are elected by the convention) and the operation of the party machinery in an election year.

At the convention of the party in May, 1931, a constitution and set of rule were adopted and the election of the executive committeemen of the several clubs approved. The executive committeemen thus approved serve for a term of four years.

At its first meeting held on May 7, 1931, the executive committee met for the purpose of arranging for a municipal primary for the selection of a mayor and other officers, and fixed October 6, 1931, as the date of the primary. At this meeting, the committee also selected its officers, namely, E. P. Grice, Jr., as secretary, and E. R. McDonald, as treasurer.

At a meeting held on July 23, 1931, the committee adopted a resolution revoking the appointment of Grice and McDonald and appointed in their places Edward Walker, as secretary, and W. T. Kanapaux, as treasurer. The vote of the committee on this resolution was thirteen in favor thereof, the remainder of the committee, eleven in number, refraining from voting.

Upon the refusal of Grice and McDonald to surrender their offices and the record books and funds thereof, the two suits for writs of mandamus were instituted by the majority of the executive committee against them; the newly appointed officers, Walker and Kanapaux, joining in as petitioners.

The power of appointment of its officers by the executive committee is derived from article IV of the constitution of the party. It provides as follows:

"The City Executive Committee shall consist of one member from each club to be elected by the respective clubs.
"The executive committee, when elected, shall appoint its own officers (except the chairman, and Vice chairman, who shall be elected by the Convention,) who shall not necessarily be members of said committee: *** The tenure of office of the executive committee shall be until the first Tuesday in May of each election year, at which time the Convention shall be called together to re-organize the party."

Under this constitutional provision there cannot, in our opinion, be any question concerning the legal right of the majority of the executive committee to remove its appointees, and to replace them with other appointees of their own choosing without any reason being assigned for the removal. No term of office is fixed for the secretary and treasurer. The rule which governs in this situation is that stated in Sanders v. Belue, 78 S.C. 171, 58 S.E. 762, 765, as follows: "For the absolute power of removal at pleasure is incident to the power of appointment, unless the law provides duration of the official term or mode of removal. [Citing cases.] It is also well settled that, where the power to remove at pleasure exists, the appointment of another person 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, although held to be without application in the particular case. In the opinion of Mr. Justice Woods, it was said: "In Sanders v. Belue, 78 S.C. 177, 58 S.E. 762, this court held that the absolute power of removal at pleasure is incident to the power of appointment, unless the law provides duration of the official term or mode of removal."

In State ex rel. Acker v. Major, 94 S.C. 472, 78 S.E. 896, the Belue Case was again approved. See, also, State v. 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 motive behind the removal. Sanders v. Belue, supra.

As the executive committee had the power to appoint Messrs. Grice and McDonald, and the appointees were at the pleasure of the committee, the committee legally had the right to revoke such appointments, and it thereupon became the duty of the incumbents to surrender their offices, together with the books, records, and funds thereof, to new appointees of the committee.

The case of Schmancke et al. v. Moorer, comes before us on a different basis from the two discussed above. It involves the right to the custody of the enrollment books of Club 2, Ward 11.

Under the provisions of section 313, volume 3, Code of 1922, the municipal and county committees are required to furnish to the secretaries of the respective clubs suitable books for the enrollment of voters. In that section, there is this provision: "The enrollment books shall be kept in the custody of the Secretaries of the respective clubs, at such places as shall be designated by the Municipal or County Executive Committee."

The secretaries are elected by their clubs upon organization every four years. The constitution of the City Democratic Party of Charleston in article XII contains the following: "In the event of sickness, death, removal from the ward, or the failure in the performance of his duty of any secretary of the club, the president of the club shall appoint a Secretary from the club to fill the place permanently or temporarily as the case may be, and in the event that the President shall not do so promptly it shall be the duty of the Executive Committee so to do."

In addition to this provision of the constitution, there exists rule XII of the committee, by which authority is given for the appointment of two assistant secretaries to each ward club secretary, who, in the absence of the secretary, is authorized to have custody of the books and conduct the enrollment.

At a meeting of the City Democratic Executive Committee on July 23, 1931, a resolution was adopted declaring that the secretaries of some fifteen clubs had failed in the performance of their duty in the conduct of the enrollment now in progress in the city of Charleston, and further declaring that the presidents of these clubs had failed promptly to appoint other secretaries, either permanently or temporarily, as required by this provision of the constitution. It was recited by this resolution that the books of enrollment had been opened for a period of ten days, and that for that period there had existed the conditions found and declared by the committee, the failure of the secretaries to perform their duties. Thereupon the committee, acting through the majority, undertook, pursuant to the above-quoted article of the party constitution, to appoint other secretaries in the places and stead of those declared to be delinquent.

Among those declared to be delinquent by this resolution was the secretary of Club 2, Ward 11, in whose place and stead was appointed George Schmancke, petitioner herein.

Thereafter, Schmancke, joining with a majority of the executive committee, filed petition for a writ of mandamus against Moorer.

In substance, his petition recites the above facts. It is his claim that upon these facts, Moorer, the assistant secretary, is unlawfully keeping custody of the enrollment books of his particular club from him.

The respondent, Moorer, sets up a claim to the enrollment books not as secretary of the club, but as an assistant secretary, appointed by the chairman of the committee pursuant to Rule XII, above referred to. No answer, return, or affidavit has been filed by the secretary, who was removed or attempted to be removed, or by the president of the club, controverting in any way the declaration of the executive committee that the secretary had failed in the performance of his duties, and that the president of the club had failed to make the appointment of a new secretary. Neither the president nor the former secretary, who was elected by the club to his office at the proper time, was made a party to the proceedings here.

There is nothing in the record before this court showing that the secretary attempted to be removed was given any opportunity to show that he had been performing his duties, and there is nothing to show that the president of the club was advised of the failure of the secretary to perform his duties, if he...

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1 cases
  • State ex rel. Williamson v. Wannamaker
    • United States
    • South Carolina Supreme Court
    • 20 Mayo 1948
    ... ... law provides duration of the official term or mode of ... removal. To the same effect is Walker v. Grice, 162 ... S.C. 29, 159 S.E. 914 ...          It will ... be noted that the statute under consideration (5868) fixes ... the ... ...

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