State Ex Rel. Lyon v. Rhame , 92 S.C. 455 ( 1912 )

September 21, 1912. The opinion of the Court was delivered by His Excellency, the Governor, on April 1, 1912, issued his proclamation, reciting acts and omissions which he characterized as neglect of duty by B.J. Rhame, State Bank Examiner, and declaring that he did thereby, for the imputed neglect of duty, remove Rhame from his office. Thereafter the Governor appointed H.W. Fraser State Bank Examiner. Rhame having refused to surrender the office, this action was brought by the Attorney General under title XIII, chapter 2, asking the Court to adjudge Rhame an intruder in the office and that he be excluded therefrom. Fraser was made a party and by answer has alleged that he is the lawful State Bank Examiner under the appointment of the Governor. Rhame by his answer alleges: First, that the term of office of the State Bank Examiner is fixed by statute and that the Governor has no power to remove him; second, that if such power exists it can be exercised only for cause and after a hearing on the charge made, and that no hearing was given him on the charge set out in the proclamation as the cause of removal, and third, that the charge of misconduct was without foundation. The defendant Fraser replied to the answer of Rhame alleging, that the Governor had full power to remove Rhame, that Rhame had been heard on the charges preferred against him, that his defense was insufficient, and that the Governor had found him guilty of neglect of duty and misconduct and for that reason had removed him. The Attorney General demurred to Rhame's return.

The first and main question thus raised is whether the Governor has power to remove from office the State Bank Examiner. The office of State Bank Examiner was first created by the act of 1896, Civil Code 1902, secs. 1768 and 1769. That statute provided that he should be appointed by an advisory board consisting of the Governor, Comptroller General, Secretary of State, Treasurer and Attorney General, "and hold the said office for two years unless sooner removed by the advisory board, which board shall fill any vacancy by an appointment for the unexpired term." In 1906 the act of 1896 was repealed and a new statute enacted, providing that the Governor should appoint a competent person as bank examiner, and that in the selection the Governor "may advise with the executive committee of the South Carolina Bankers' Association" (25 Stat. 103). This act was amended in 1911 (27 Stat. 4), but the amendment does not bear on the tenure of office. The statute of 1906, as amended in 1911, provides: "The term of the office of said bank examiner shall be four years and he shall receive as compensation therefor three thousand dollars per annum," etc., but no power of removal is conferred on the Governor, nor is any reference made to the subject of removal.

The question then comes to this: when a statute creates an office to be filled by appointment of the Governor and fixes the term for which the appointee shall hold, but confers on the Governor no power of removal, does the Governor, nevertheless, have the power of removal under the Constitution or the statute law of the State or under the common law?

Laying aside for the moment the Constitution and the statute law of the State, we consider the common law rule as established by judicial expression. Surely, men of common sense, learned and unlearned, would be surprised to find the law to be that when the legislative department has created an office to be filled by appointment of the Governor and extended and limited its term to four years, yet the governor could at will shorten the term by removal, although no power of removal has been conferred. Such executive power is denied by both reason and authority.

The Governor, as chief executive, has no prerogative control over officers such as is held by the king of Great Britain. The power of removal from office, therefore, is not an incident of the executive office and exists only where it is conferred by the Constitution or by the statute law, or is implied from the conferring of the power of appointment.

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 providesduration of the official term or mode of removal.

In Hardy v. Reamer, 84 S.C. 487, 66 S.E. 678, the statute authorized the city council to establish a board of police commissioners, and set their terms of office. After establishing the board and selecting its members, the city council undertook to abolish the board. In an opinion delivered on the Circuit and adopted by this Court Judge Ernest Gary thus clearly states the principle:

"The power given the mayor and aldermen is that of electing or appointing members of the board provided for by the act. In exercising this power they act as executives, as the appointing to office is an executive and not a legislative function. Having exercised this power by electing or appointing plaintiffs to the offices provided for by the act, and being neither authorized to remove such officers or to abolish such offices, created by a superior sovereignty, their power is exhausted, and they cannot remove plaintiffs, either directly or by abolishing their offices, so long as their terms are unexpired."

These cases laying down the rule in this State that the power of removal is not incident to the power of appointment, where the extent of the term of office is fixed by the statute, and not subject to be shortened, are buttressed by unbroken authority in other jurisdictions. Avery v.Tyringham, 3 Mass. 177; People v. Robb (N.Y.),27 N.E. 267; Reilly v. Chatfield, 71 Conn. 112, 40 Alt. 922; State v. Dahl, 140 Wis. 301, 122 N.W. 748; Bruce v. Matlock,86 Ark. 555, 111 S.W. 990.

In People v. Robb, supra, the New York Court of Appeals says that the following provision of the Constitution of New York was an embodiment of the generally recognized rule: "When the duration of any office is not provided by the Constitution, it may be declared by law, and, if not so declared, such office shall be held during the pleasure of the authority making the appointment." In Marbury v. Madison, 1 Cranch, 138, 2 Law Ed. 60, Chief Justice Marshall thus stated the general rule: "Mr. Marbury, then, since his commission was signed by the President, and sealed by the Secretary of State, was appointed; and as the law creating his office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country." * * * "It has been created by special act of Congress, and has been secured, to the person appointed to fill it, for five years." This rule was restated and recognized in McAllister v. U.S., 141 U.S. 174,35 Law Ed. 693; Ex parte Hennen, 13 Peters 230,10 Law Ed. 138; Reagan v. U.S., 182 U.S. 419, 45 Law Ed. 1162.

At the argument the case of Parsons v. U.S., 167 U.S. 324,42 Law Ed. 185, was mainly relied on as completely overturning the rule stated, and laying down the rule that the power of appointment implies the power of removal even where the term of office is fixed by the statute which confers the power of appointment, and no power of removal is expressed.

The case does not bear that construction. On the contrary, the entire opinion of Justice Peckham rests on the argument that under the Constitution and statutes of the United States, the office of district attorney and like Federal offices fall without the general rule and are not controlled by it. The Federal statute provided: "District attorneys shall be appointed for four years and their commissions shall cease and expire at the expiration of four years from their respective dates." After consideration of the powers bestowed by the Constitution on the President to remove officers, and an elaborate review of the acts of Congress, on the subject, the Court holds that the debates in Congress, the history of congressional action on the subject, and the statutes themselves show that four years was fixed as a limitation on a term which was at one time indefinite, and that in so limiting the term it was not the intention of the Congress to interfere with the President's power of removal which he had when the term was indefinite, and so under the Constitution subject to his power of removal. It is on this ground that the Court distinguishes the case and takes it out of the general rule laid down in Marbury v. Madison.

Thus it appears, we think, beyond controversy that the Parsons case is in nowise opposed to the rule that the power of removal is not an incident of the power of appointment if the length of the term is fixed by statute and no authority to remove is conferred by the statute.

Not only does the common law deny the power of removal as an incident of the power of appointment when the term of office is fixed by the statute and the power of removal not expressed, but the Constitution and statutes of the State strongly negative such a power.

The Constitution by expressly conferring on the Governor the power, section 8, article XII, to remove the officers of charitable and penal institutions "until the next session of the General Assembly and until a successor or successors shall be appointed," impliedly negatives the intention to bestow the power to remove other officers; and the conferring, by section 22, article IV, of the lesser power to suspend officers for the grave offense of embezzlement, and that only on a true bill found, and providing that there shall be removal only after conviction, negatives the intention to bestow the larger power of removal without a true bill and without conviction, on a charge less grave than embezzlement.

The statute law of the State by the strongest implication denies the authority to remove here asserted. Public officers are created for the benefit of the commonwealth, incumbents have no contract or property rights in them, and, unless it be otherwise provided by the Constitution, they are subject entirely to legislative control. Hence subject to the Constitution, the General Assembly may fix the term, provided for removal, abolish the office, reduce the term, and in every respect control the existence, powers, emoluments, and tenure of public officers. In the exercise of this power the General Assembly has, with assiduous care, provided that the removal of even minor and local officers should take place only after indictment and conviction of misconduct — as instance the provisions for the removal of all local officers by sections 388 and 389 of the Criminal Code only on trial and conviction; or has provided that they should be merely suspended by the Governor, and be removed only on consent of the Senate — as instance the provision made for the suspension and removal of county auditors and treasurers, Civil Code 1902, sections 340 and 398; or has enacted that they should be removed by judicial decree in a civil action as provided in the article of the Code of Procedure under which this action was brought.

When a different policy was intended the tenure has been expressly stated to be subject to removal, as in the case of the dispensary directors and the election commissioners whose tenure was made subject to removal by the Governor. Criminal Code 1902, section 556; Civil Code, section 206. There is no escape from the conclusion that the Governor has no power to remove the State Bank Examiner.

The duties of the State Bank Examiner extend over the entire State, but he is not elected by the people at large, hence he is not an officer removable only by impeachment; for the rule was thus laid down in McDowell v. Burnett,ante, 469: "Every executive and judicial officer whose authority and jurisdiction extends over the entire State — in whose official conduct the entire State is concerned — and whose office was created by the Constitution, or created by statute and filled by election by the people at large, is removable by impeachment or by the Governor on address of the General Assembly, or by conviction of embezzlement or appropriation of trust funds and in these modes only. All other officers are subject to removal under the provisions of the statute law of the State or under the common law where that is applicable."

Under this rule the General Assembly in creating the office of State Bank Examiner might have provided that the term should be four years subject to be shortened by removal by the Governor or on the happening of any other contingency. But it did not see fit to do so. The wisdom of legislative action is without the sphere of judicial inquiry. It may be that fixing the term of the office of State Bank Examiner rigidly at four years in the last statute, when by the earlier statute it had been fixed at two years subject to be shortened by removal, was an oversight; or it may be the change was due to an intention to make an officer, clothed with so much discretion and power and charged with such great responsibility in safeguarding, by his supervision, enormous public and private interests, entirely independent of any outside influence and removable only by a civil action under the Code of Procedure. These questions are not for us. The Court can only declare that under the law as it exists the State bank examiner is not subject to removal at the discretion of the Governor, and that the defendant, B.J. Rhame, is still State Bank Examiner.

This conclusion makes unnecessary the consideration of the other questions argued, and it is, therefore, ordered and adjudged that the petition be dismissed.

MR. CHIEF JUSTICE GARY. I concur in the opinion of Mr. Justice Woods, for the reason that the law does not provide for the removal of the State Bank Examiner by the Governor, as it does in the case of magistrates.

MR. JUSTICE FRASER disqualified.

MESSRS. JUSTICE HYDRICK and JUDGE T.S. SEASE, ActingAssociate Justice, and CIRCUIT JUDGES PRINCE, WILSON, RICE, FRANK B. GARY and SPAIN concur.