Whipper v. Reed
| Decision Date | 07 June 1877 |
| Citation | 9 S.C. 5 |
| Parties | WHIPPER v. REED. |
| Court | South Carolina Supreme Court |
A Circuit Judge elected by the Legislature under Article IV Section 11, of the Constitution of the State, to fill a vacancy in the office, holds, under Section 13 of the same Article, for the full term of four years, and not merely for the unexpired term of the Judge in whose place he was elected.
This was an action entitled The State, ex relatione W. J Whipper, against J. P. Reed. It was brought originally in the Supreme Court, and was in the nature of a quo warranto to determine the title to the office of Judge of the First Judicial Circuit of the State.
It was referred to a Referee to ascertain and report upon the facts and from his report the case, so far as it related to the only question considered and determined by the Court, may be briefly stated thus:
On January 18th, 1872, R. F. Graham was duly elected Judge of the said Circuit for the full term of four years, commencing August 26, 1872. He received his commission, qualified thereunder, and held and continued to hold the office until October, 1874, when he died.
In November, 1874, thereafter, the Legislature passed a resolution that the two houses meet in joint assembly on the 2d day of December, 1874, " for the purpose of electing a suitable person to fill the vacancy in the Judgeship of the First Judicial Circuit, occasioned by the death of the Hon R. F. Graham." The election was held, and J. P. Reed, the defendant, was elected. He received his commission, qualified as Judge, and took possession of the office.
On the 11th day of December another election was held by the Legislature for Judge of the First Judicial Circuit. At that election W. J. Whipper, the relator, was elected. He received a certificate of his election to the office from the President of the Senate and the Speaker of the House of Representatives, attested by the Clerks of the House and Senate, and, having qualified thereon, he now claimed that he was entitled to the office for the term of four years from the 26th day of August, 1876.[a1]
W. J. Whipper , for the relator.
__________, contra.
This is an action in the nature of quo warranto , brought originally in this Court by W. J. Whipper, claiming to have been elected by the General Assembly a Circuit Judge for the First Circuit, to fill a vacancy anticipated at the expiration of the term of office of Judge Reed, the present incumbent and defendant. The defendant alleges, among other matters, that his term of office has not expired. The defendant was elected under a concurrent resolution providing for electing a suitable person to fill the vacancy caused by the death of Hon. R. F. Graham, the previous incumbent. If the defendant was entitled to hold the office for four years from his election, which took place in December, 1874, then his term of office has not yet expired, and the action must fail. Several grounds for dismissing the complaint have been urged, some of which relate to matters of form only; but as the main question arising upon the merits ought to be decided, in order that no uncertainty may exist as to the tenure of the Circuit Judges, that question will at once be considered.
The Constitution (Article IV, Section 13,) provides that " this State shall be divided into convenient Circuits, and for each Circuit a Judge shall be elected by joint ballot of the General Assembly, who shall hold his office for a term of four years," & c. The only provision of the Constitution relative to filling vacancies in judicial offices is contained in Article IV, Section 11, and is as follows: " All vacancies in the Supreme Court or other inferior tribunal shall be filled by election as herein prescribed, provided that, if the unexpired term does not exceed one year, such vacancy may be filled by Executive appointment." The question that arises on the provision just recited is whether one elected to fill a vacancy under Section 11 is entitled to hold for the full term of four years provided for in Section 13, or holds only for the unexpired portion of the term remaining at the time of his election and qualification.
This Court held in Wright vs. Charles , (4 S. C., 178,) in effect, that when the duration of a term of office is fixed by the Constitution, and the mode of filling it prescribed, and the time when the term is to commence is not fixed, the officer chosen to fill it in the mode prescribed, although to fill a vacancy, holds for the full term fixed by the Constitution. This principle was there applied to a case where the Act under which the vacancy was filled provided in terms for filling vacancies. The conclusion just stated is manifestly sound and has an important bearing on the present question. There are two leading objects that naturally present themselves in adjusting succession to public offices in a scheme of government-the one having regard to the duration of official authority, and the other to regularity of succession, whether periodic or otherwise. In fixing the duration of public authority in an office, or, technically expressed, in prescribing the duration of his term of office, regard is had, on the one hand, to stability in the administration of the office, which is usually promoted by long occupancy, and, on the other hand, to increasing the sense of official responsibility on the part of the officer by subjecting him to that scrutiny that results from the frequent exercise of the appointing power in filling the office. The other general object, namely, that of securing regular succession to public office, looks to the means of securing a peaceful transfer of the office in obedience to the authority which, under the law, ought to determine the order of that succession, and to the times when such office should begin to be exercised by one entitled to succeed to it. As it regards certain offices, a regular succession at stated periods has been found most convenient, influenced by the nature of the office and the mode of appointment to it. Political offices, whose incumbents exercise more or less political discretion, being closely related to the prevailing ideas of public policy and economy, are usually filled at stated periods, in accordance with our political theory that regards a general election, as, in some degree, an expression of the popular mind as to methods of administrative policy. As such expression is only indirectly made through the selection of public officers, it has become a very general practice to fill the several principal political offices at the same time and at stated periods. In the case just mentioned it is the nature of the office that is consulted in fixing its commencement.
As has been observed, the mode of choosing public officers has an important influence as it regards the time of filling an office. When filled by Executive appointment, no special reason seems to arise from the nature of that kind of appointment for filling such offices at fixed periods, for the Executive power can act at any time. When chosen by the General Assembly, as there must be intervals during which that body is not in session, special means of supplying vacancies during the absence of that body are very commonly employed for obvious reasons. During the sessions of the Legislature its appointing power can be exercised conveniently at any time. The mode of choice that seems to render most important provisions of a general nature requiring a considerable body of public officers to be chosen and installed at the same time is that of popular elections. This is occasioned by the nature of such elections, at all times imposing a large amount of labor upon the public officers, as well as upon citizens at large, and attended with large expense. The general considerations that have been thus briefly stated have had more or less effect in influencing the arrangements made by our Constitution as to the modes and times of filling its offices. Our Constitution assumes to make provision for nearly all the contingencies likely to arise in this respect as affecting the offices created by it. As a general thing, it determines the modes of choice and the duration of the tenure of offices. ...
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