Richards, Governor v. Ballentine , 152 S.C. 365 ( 1929 )

October 12, 1929. The opinion of the Court was delivered by The facts of this case are fully stated in the proposed opinion of Mr. Justice Cothran, and I shall not restate them here.

I agree with the conclusion reached in the suggested opinion that Article 15 of the State Constitution makes no provision for the removal of a Sheriff, such officer not being subject to impeachment or to removal upon the address of both houses of the General Assembly, and "there being then ``no mode of trial or removal * * * in this Constitution' for the removal of a Sheriff for the offenses named in Article 3, Section 27, the method of removal is left to the General Assembly, which has spoken in the Act of 1924." 33 St. at Large, page 997. This conclusion is undeniably sustained by Mr. Justice Cothran's excellent discussion of the question and fully supported by the authorities cited by him.

The learned Justice concludes, however, that the Act in question — providing, as it does, for the removal of officers by the Governor and for review of his action by a Circuit Judge — is unconstitutional, for the reasons that (1) if the removal of a Sheriff is an executive function, no appeal could lie from the Governor's action to the Court; and (2) if such removal is a judicial function, the commission to the Governor of such power was an infraction of the Constitution. I agree with the first, but not with the second, proposition.

In the case of State v. Ansel, 76 S.C. 395, 412,57 S.E., 185, 191, 11 Ann. Cas., 613, the Court said: "It is suggested that a Governor can never be an inferior tribunal, since he is the supreme executive officer. This reason would be impregnable, if the Constitution, which vested the Supreme and Circuit Courts with the judicial power, had at the same time created the Governor a judicial tribunal, or made it his executive function to remove officers for cause after notice and opportunity for hearing. Then it could be said the power of removal, whether judicial or executive, was a co-ordinate power beyond control of the regular Courts, just as the High Court of Impeachment would be. In this case, however, the Governor does not derive his power to remove directly from the Constitution, but by creation of an Act of the Legislature. Therefore, if the power to remove officers is judicial, the tribunal designated to exercise the power is judicial, and must of necessity be an inferior jurisdiction in a legal sense, because the Legislature is wholly without power to create a judicial tribunal which is not inferior to the judicial power vested in the Supreme and Circuit Courts.

"The fact that the power was conferred on the Governor may have force in determining whether the intention was to create the Governor into a judicial tribunal, but, if admitted that the Governor has been created such judicial tribunal by Act of the Legislature, it follows inevitably that with respect to such function he would be subject to review by the superior tribunal. Several reasons are suggested against this view. One is that in case of resistance by the Governor the Court would have no power to enforce its mandate. That is a political reason, not a legal reason. The adequacy of the Court's power to enforce its judgments can never be a true test of jurisdiction. The duty of the Court is to declare the law, and it must always rely upon the executive department to execute the law declared. In any defiant controversy between the judiciary and either of the other co-ordinate departments, the judiciary would prove weakest. It carries neither purse nor sword. The strength of its mandates must lie in their righteousness, in the confidence the people may have in the knowledge and integrity of the Court, in the necessity to civil liberty that there be a final arbiter as to what is law, in the duty of the executive to enforce that law, and in this last reliance it is not conceivable that there will be any disappointment."

It is clear from the foregoing that, for the removal of an officer, the Legislature may create the Governor a judicial tribunal, and may provide for an appeal therefrom to the Circuit or Supreme Court. It is evident, also, that the Governor, in the present case, derives whatever power is vested in him for the removal of Sheriffs, not from the Constitution, or from the fact that he is the chief executive, but from the Statute itself.

What, then, was the primary purpose of the Legislature in the enactment of the law? Simply to provide a method by which officers guilty of certain offenses might be removed, care being taken to protect the rights of the accused party. For such purpose, it could name the Governor alone, or another, or a board composed of several, of which the Governor might or might not be a member, whose duties would be to determine the questions involved. For reasons satisfactory to itself, the Legislature, after enumerating the offenses for which certain officers might be removed from office, chose to place the removal of such officers, in the first instance, in the hands of the Governor, but carefully provided for various steps, clearly judicial in their nature, to be taken in the hearing or trial for removal. And, as further showing that the entire procedure was to be judicial, the Act provides for an appeal by the officer from the order of the Governor removing him from office, and requires the Governor, when such appeal is duly made to a Circuit Judge, to make a return to that Court, filing with it the record in the case, including a copy of his order, grounds of removal, evidence in support thereof, etc.

To my mind, when the Act is read and considered as a whole, no other conclusion can be reached than that the Legislature intended to create the Governor, for the purposes of the Act, a judicial tribunal, and that the power vested in him by the law was not executive, nor intended to be so, but purely judicial. This being true, the objections to the constitutionality of the Act are seen to be without merit.

The judgment of this Court is that the order appealed from be reversed, and the case remanded to the Circuit Court for a hearing on the facts.

MR. JUSTICE CARTER, and CIRCUIT JUDGES DENNIS, HENRY, FEATHERSTONE, RICE, MANN, RAMAGE, TOWNSEND, and JOHNSON concur.

MESSRS. JUSTICES COTHRAN and BLEASE, and CIRCUIT JUDGES WILSON, MAULDIN, GRIMBALL, SEASE, and SHIPP dissent.

MR. JUSTICE STABLER, and CIRCUIT JUDGE BONHAM disqualified.