Gibbes v. Richardson

April 26, 1917. The opinion of the Court was delivered by The issue is the title to the office of chief game warden of the State; the issue is not whether an act of a person exercising that office is lawful. The distinction betwixt the two cases is well defined and is manifest.

We agree with the Circuit Court that when four years elapsed after the appointment and qualification of Mr. Richardson, as they did, then his term was ended. The statute created the office, and the words of the statute are "his term of office shall be four years." There is no warrant to add to or to subtract from these words; they speak for themselves; construction is resorted to when an instrument is ambiguous. Cromer v. Boinest, 27 S.C. 436,3 S.E. 849.

But the defendant suggests that the Constitution has fixed (at article XVII, sec. 11, and subdivision 6) a policy that officers shall hold until the appointment of their successors. That provision of the Constitution was manifestly made to bridge a passage of officers over from service under the Constitution of 1868 to the Constitution of 1895. The first sentence of section 11 makes that plain.

It is further suggested by the defendant that the office of chief game warden is a public trust, and a Court will not allow a trust to go unperformed; and a persuasive case from Maryland is cited in support of that view. Robb v.Carter, 65 Md. 321, 4 A. 282. But in the instant case the office of chief game warden need not go vacant. At most, it would so go only until the General Assembly might meet in its next session. And more than that, the statutes now on the books made possible the appointment of a chief game warden today. That officer gets his nomination from the concurrent acts and wills of the Audubon Society and the Governor. The General Assembly is now in recess, and the Audubon Society may now recommend, and the Governor may now nominate, a chief game warden to hold until the vacancy be filled in the mode provided by law, to wit, until the Senate shall confirm the nomination. Civil Code, sec. 695. And the person so named will be entitled to act as chief game warden.

The vacancy "occurs" during the recess, even though it was initiated before the recess.

The law, therefore, has provided how the office may be occupied; and we are bound to assume that those charged with the execution of the law will not depart from it.

We also concur with the Circuit Court that the plaintiff has no title to the office he seeks. He must show at least two things to prove title, to wit, the sending of his name to the Governor by the Audubon Society, and the approval of his name by the Governor. He has not shown the first thing. Elledge v. Wharton, 89 S.C. 113,71 S.E. 657; Gasque v. Singleton, 100 S.C. 465,84 S.E. 989.

The suggestion is made by the plaintiff that the General Assembly could not have intended to confer such power on the Audubon Society; and he cites Stackhouse v. County, 86 S.C. 419, 68 S.E. 561, andState v. Sawyer, 104 S.C. 342, 88 S.E. 894.

There is nothing in these cases, apart from sentences in them referable plainly to the facts of them, which would warrant us to read out of section 747 of the Criminal Code the explicit direction that the Governor's nomination should have the recommendation of the Audubon Society. There is no warrant for us to hold that the requirement of the Audubon Society's recommendation of the nomination is "absurd;" we are bound to conclude the General Assembly was exercising a plain right, the wisdom of which was for it and not for this Court.

Our judgment is that the order of the Circuit Court be affirmed.