Carrison v. Young , 125 S.C. 42 ( 1923 )

May 31, 1923. The opinion of the Court was delivered by In order to understand clearly the issues involved, it will be necessary to report the petition, the order requiring the respondents to show cause, the return made by the respondents to the rule, and the Act, entitled "An Act to provide a system of county government for Kershaw County," approved the 14th day of February, 1923.

Our construction of the petition is that the sole relief which it seeks is, under Section 472 of the Code, which contains these provisions:

"If the defendant shall refuse or neglect to deliver over such books or papers, pursuant to the demand, he shall be guilty of a misdemeanor, and the following proceedings shall be had, to compel delivery of such books or papers:

"(1) Whenever any person shall be removed from office, or the term for which he shall have been elected or appointed shall expire he shall on demand deliver over to his successor all books and papers in his custody as such officer, or in any way appertaining to his office. Every person violating this provision shall be deemed guilty of a misdemeanor.

"(2) If any person shall refuse or neglect to deliver over to his successor any books or papers, as required in the preceding section, such successor may make complaint thereof to any Judge of the Circuit Court, or Justice of the Supreme Court, where the person so refusing shall reside; and if such officer be satisfied by the oath of the complainant, and such testimony as shall be offered, that any such books or papers are withheld, he shall grant an order directing the person so refusing to show cause before him, within some short reasonable time, why he should not be compelled to deliver the same."

It appears prima facie from the pleadings that the petitioners are entitled to relief under Section 472 of the Code.

This conclusion is fully sustained by Ex Parte Whipper, 32 S.C. 5; 10 S.E., 579, in which the Court used the following language:

"The Code, in certain cases stated, provides the means of obtaining possession of the records of an office, which are of a very summary character, and, in a matter so important, obviously intended to prevent all unnecessary delay. * * *

"It is not denied that the proceedings in this case were in precise conformity to these provisions, but the point is made that they were not applicable until after formal judgment in an action to test title to the office. It is true that the provisions cited appear in Part II, Title 13, Chapter 2, of the Code, which abolished the writ of quo warranto, and substituted therefor a civil action; but it is certainly not expressly declared that they were only applicable after judgment in such action, with all the necessary delays incident thereto. We think that the above provisions of the Code as to getting possesion of official records, must be construed in connection with the Acts creating the machinery for declaring elections in the General Statutes hereinbefore referred to, which, in authorizing the election to be declared, and a commission to be issued, confer at least primafacie title to the offices and that is sufficient to authorize an application for possession of the records pertaining to the office. * * *

"This is, as it seems to us, conclusive. The authority created for that purpose had declared Talbird duly elected. Right or wrong, he had been commissioned, qualified, and entered upon the discharge of his duties as Probate Judge. His prima facie title was clear, and, in the language of Judge Strong in the case of Baker, the remedy of the petitioner (Whipper) was to surrender the books and papers of the office, and, if so advised, to resort to his civil action in the nature of a quo warranto to test the title. The records of a public office are in no sense private property. They are very important to every citizen. It is good policy to require that there should be no unreasonable delays in determining contests as to elective offices. Upon that subject especially it concerns the interest of the country that there should be an end of litigation."

This language is quoted with approval in Verner v. Seibels,60 S.C. 572; 39 S.E., 274. In that case it is stated that the same reasoning is applicable to an appointive office.

When the demand was made by the petitioners as stated in the petition, there should have been a compliance therewith by the respondents. This would not have precluded them from bringing an action thereafter to determine the title to the office.

It is, therefore, ordered that the respondents do forthwith comply with the demand of the petitioners.