April 10, 1939. The opinion of the Court was delivered by The facts out of which this controversy arose, briefly stated, are these: William H. Dunkin was elected Clerk of Court for Charleston County in the general election held in November, 1936, and thereafter duly qualified and assumed the duties of the office. He died in the early part of 1937, and the Governor appointed O.T. Wallace to fill the vacancy thus created, his commission "to continue in force for the term provided by law." Wallace qualified and is now discharging the duties of his trust. He claims that he was appointed to fill the entire unexpired term of William H. Dunkin.
Chris M. Limehouse, the petitioner herein, entered the Democratic primary in August, 1938, as a candidate for Clerk of Court, and was nominated therefor. As such nominee, in the general election held in November, 1938, he received 4,263 votes. The Board of County Canvassers, however, refused to count these votes, holding that there was no vacancy in the office. Limehouse then filed a protest against such ruling, and secured from a Circuit Judge an order requiring *Page 124 the county board to preserve the ballots and to make return of the number of votes cast for the office of Clerk to the Board of State Canvassers. After this mandate of the Court was complied with, the State Board duly considered the appeal of Limehouse from the action and rulings of the county board, and held that "as 1938 was not the year in which to elect a Clerk of Court in Charleston County, the attempted election now under contest before this Board of State Canvassers is void," basing its decision upon the case of Cannon v. Sligh et al., 170 S.C. 45, 169 S.E., 712.
Limehouse thereupon presented to the Chief Justice a petition praying that a writ of certiorari issue requiring the Board of State Canvassers to certify to this Court all records in the matter. Such order was issued and in due time its terms were fully complied with by the respondents, O. T. Wallace being permitted to intervene and to file a return should he be so advised.
The contentions of counsel were presented with much earnestness at the bar of this Court, and we have given to the matter the consideration which its importance deserves. Mr. Justice Bonham has written a very able opinion, in which he holds that Limehouse was duly elected Clerk of the Court for Charleston County at the general election in November, 1938, and is entitled to hold such office until the general election of 1940. That is to say, that Limehouse was elected for a term of two years. We regret that we are unable to concur in this view. A study of the pertinent constitutional and statutory provisions, and of the decisions of this Court judicially interpreting same, convinces us that the Board of State Canvassers reached a correct conclusion.
The controlling question in this case, as we see it, is whether Limehouse was elected, if elected at all, for a term of two years or for a term of four years.
As this case is undoubtedly controlled by the decision inCannon v. Sligh, supra, and authorities there cited, it becomes unnecessary to discuss the question at any great length. A comparison of the facts of the two cases discloses *Page 125 that they are practically the same. The election of Cannon under which he claimed the office of Clerk was held in 1930, which was not the year for holding the regular election to fill such office in Darlington County as provided by statute, and the election in the case at bar at which Limehouse claims to have been elected was held in 1938, which was not the year for the regular election of the Clerk of Court for Charleston County. In the opinion in the Cannon case attention is directed to the pertinent constitutional and statutory provisions governing in such matter, and which govern here. The main issue here made was whether Cannon was elected in such off year for the term of four years. The question, however, as to whether he was elected to fill the vacancy created for the unexpired term of two years, was also raised and decided.
With reference to the last-named question, the Court held that where a vacancy occurs in the office of Clerk by death or otherwise, the unexpired term cannot be filled by an election, as such unexpired term varies the term of four years fixed in the Constitution, citing a number of decisions sustaining its conclusion, among them Wright v. Charles, 4 S.C. 178;Macoy v. Curtis, 14 S.C. 367. The Court, therefore, held invalid the provision of Section 2351 of the Code of 1932, limiting the term of office under the election therein provided for to the unexpired term, basing its conclusion upon the holding in Wright v. Charles, supra, that "if the Legislature had, by express enactment, declared that one elected to fill the unexpired term of the office of Clerk, made vacant by any cause, should only hold for such term, it would have been inoperative and void." (170 S.C. 45. 169 S.E., 715.) It also denied, in the following language, the contention of the appellants that the part of the Act providing for the election was severable:
"The appellant contends, however, that even under such conclusion the part of the section providing for the election would not necessarily fall, but only so much of it as varies *Page 126 the term of office prescribed by the Constitution; and urges that under the general principles controlling the construction of partially invalid statutes, the court should so determine and hold in this case. We are convinced, from a careful study of the section, that this position cannot be sustained. The wording of the statute presents no ambiguity. Therefore, to declare such election to be for the term as fixed by the Constitution, although the Legislature explicitly provided by the Act that `it is to fill the unexpired term' and that the person so elected shall hold the office for such term only, would be for this court to read into the law language that was not used by the Legislature or to give to the words actually used a meaning that was not intended. We, therefore, conclude that the section, so far as it provides for the holding of the election, does not meet all the tests or conditions on which the result contended for by the appellant depends. See Gillespie v. Blackwell, 164 S.C. 115,161 S.E., 869. It necessarily follows, and we so hold, that so much of section 2351 as provides for an election `to fill the unexpired term' and for the tenure of office of the person so elected, is in conflict with section 27 of article 5 of the Constitution of 1895, and is, therefore, inoperative and void."
Hence, it is clear, Section 2351 being invalid both as to the term of office and the election therein provided for, that no authority of law remains for any election of Clerk except under Sections 2350 and 3577 of the Code providing for elections "at every alternate general election, reckoning from the year one thousand eight hundred and eighty-eight." This being true, there was and is no authority of law for any election for Clerk of Court in Charleston County until 1940, and the attempted election in 1938 was null and void.
As to the apparent contention of the petitioner, that Limehouse was elected at the general election of 1938 for a term of four years, the Court in the Cannon case said: "As we have observed, sections 2350 and 3577 of the Code fix *Page 127 as the time for the election of clerk of court in this state every alternate general election, counting from 1888. It is not contended that these sections are in conflict with the Constitution; on the contrary, it is conceded that they are supplementary thereto and valid." If this holding of the Court is allowed to stand, and we have been pointed to no good reason why it should not, Limehouse was not elected in 1938 for a term of four years, as the election for Clerk of Court for Charleston County, counting from the year 1888, would fall, as provided by these sections, in the year 1940.
Counsel for the petitioner asked and was granted permission to criticize the decision in Cannon v. Sligh, supra, with a view to having the Court overrule or modify it in certain particulars. They have not convinced us, however, that this should be done. Nor do we think, upon examination of the decisions cited and relied upon by the petitioner, that they are controlling here as contended.
The judgment of this Court, therefore, is that the petition be dismissed and the action and holdings of the Board of State Canvassers be, and hereby are, affirmed.
MR. CHIEF JUSTICE STABLER and MR. JUSTICE BAKER concur.
MR. JUSTICE BONHAM dissents.
MR. JUSTICE CARTER did not participate on account of illness.