These cases were heard together in the original jurisdiction of the Court, upon a rule to show cause issued by the Chief Justice upon verified complaints, and the pleadings in the cases, complaints, answers and returns and demurrers to answers and returns are substantially the same and raise the same questions, so it is only necessary to set out the pleadings in the first case. The complaint is as follows:
The plaintiff above named respectfully shows to the Court:
I. "That he is informed and believes that one J.M. Bowden has, since the 22d day of February, 1911, been exercising and still is exercising the power and duties of the office of magistrate for the county of Spartanburg, in the city of Spartanburg, without legal appointment or authority therefor. *Page 403
II. "That A.H. Kirby was, on the 5th day of February, 1909, duly appointed by the Governor magistrate for the county of Spartanburg, in the city of Spartanburg, and on the 8th day of February, 1909, his appointment to said office was regularly confirmed by the Senate of said State, and he was duly commissioned as said magistrate.
III. "That the said A.H. Kirby at once entered upon the discharge of the duties of said office, and has since continuously discharged the duties thereof, and is now exercising the powers and discharging the duties of said office under and by virtue of the appointment and commission aforesaid.
IV. "That on the 20th day of February, 1911, the Governor of this State without recommendation of the senator or members of the House of Representatives from Spartanburg county unlawfully appointed J.M. Bowden to be magistrate for the county of Spartanburg, in the city of Spartanburg (this being the office held by A.H. Kirby), and on the 22d day of February, 1911, issued to him a commission as magistrate aforesaid; that said appointment has never been submitted to the Senate for approval and has not been confirmed by the Senate.
V. "That the said J.M. Bowden under the said commission so unlawfully issued to him as magistrate aforesaid, and without the consent and approval of the Senate as required by section 20, article V, of the Constitution, and without any other or legal warrant, right or grant whatsoever, has undertaken to exercise the powers and duties of said office, and has since that time continuously exercised the powers and duties notwithstanding the fact that the said A.H. Kirby was legally appointed and commissioned as magistrate for the county of Spartanburg, in the city of Spartanburg, as provided by section 20, article V, of the Constitution, and was at the time of the attempted appointment of J.M. Bowden, and is now holding said office and lawfully exercising the powers and performing the duties thereof. *Page 404
VI. "That no appointment of a successor to the said A.H. Kirby has ever been confirmed by the Senate, nor has any legal appointment of a successor to the said A.H. Kirby been made.
"Wherefore, the plaintiff prays that this Court in the exercise of its original jurisdiction issue its order against the said J.M. Bowden and A.H. Kirby, the defendants, requiring them to answer and show by what authority they claim to hold and exercise the duties of said office of magistrate for the county of Spartanburg, in the city of Spartanburg.
"That it be adjudged that the said J.M. Bowden is guilty of unlawfully exercising said office of magistrate, and that he be excluded therefrom.
"That the said J.M. Bowden be required to pay the cost of the proceeding together with such fine, not to exceed two thousand ($2,000) dollars, as the Court may adjudge.
"That the said A.H. Kirby be adjudged to be entitled to the said office and that he be allowed to continue to hold the same and exercise the powers and duties thereof."
The answer and return of A.H. Kirby, one of the defendants above named, is as follows:
I. "This defendant respectfully says, that no copy of the complaint has been served upon him, and he is, therefore, unable to say whether he formally admits or denies the allegations thereof, but in so far as he is informed, he believes the allegations are true.
II. "This defendant further says, that he was regularly appointed and commissioned and sworn in as a magistrate in and for the county of Spartanburg, on or about the day of February, 1909, his office being in the city of Spartanburg. That he is informed and believes, no one has been legally appointed to succeed him, and that he has been performing the duties of said office of magistrate ever since his appointment and qualification, and claims the right to hold and exercise the duties of said office and to collect the *Page 405 salary and fees belonging to the same until some one has been duly appointed, commissioned and sworn in as his successor.
"Wherefore, this defendant prays that the complaint be dismissed as to him."
The answer and return of J.M. Bowden, the other defendant above named, is as follows:
I. "That he admits paragraph I, as to exercising the duties of magistrate for Spartanburg county, and no other part thereof.
II. "That the defendant has no knowledge of paragraph II of the complaint.
III. "That the defendant is informed that A.H. Kirby has been exercising the authority of magistrate, but has no knowledge of the legality of the same.
IV. "That the defendant replying to paragraph IV says that he was duly commissioned by the Governor of South Carolina on the 22d day of February, 1911, as magistrate for Spartanburg county and directed to exercise the duties thereof and has no knowledge whether the appointment was brought before the Senate or not.
V. "That defendant replying to paragraph V of the complaint denies that he is unlawfully exercising the duties of magistrate.
VI. "That defendant replying to paragraph VI of the complaint alleges that he was duly appointed magistrate for Spartanburg county as stated in paragraph I, and knows nothing about the appointment of A.H. Kirby.
"Wherefore, the defendant demands that the complaint herein be dismissed with costs."
The demurrer to the answer and return of J.M. Bowden by the Attorney General is as follows:
"Now comes the plaintiff herein and demurs to the answer and return of the defendant J.M. Bowden upon the ground that it fails to state facts sufficient to constitute a defense, in that: *Page 406
1. "It admits all the material allegations of the complaint.
2. "It fails to deny that the appointment of J.M. Bowden as magistrate was not confirmed by the Senate.
3. "It fails to set up any facts by way of affirmative defense."
It will be seen that A.H. Kirby was appointed magistrate on February 5, 1909, and on February 8, 1909, his appointment was confirmed by the Senate. J.M. Bowden was appointed and commissioned by the Governor to this same office on February 22, 1911. D.T. Gossett was appointed magistrate on February 5, 1909, and his appointment confirmed by the Senate on February 8, 1909, and on February 22, 1911, S.S. Tiner was appointed by the Governor and commissioned to the same office. E. Potter was appointed magistrate on February 8, 1909, and his appointment was confirmed by the Senate. On February 28, 1911, W.R. Tanner was appointed and commissioned by the Governor to the same office. On February 19, 1910, W.C. Harrison was appointed a magistrate (to fill out the unexpired term of R.L. Pearson, resigned) and commissioned as such on March 4, 1910, and on February 27, 1911, T.O. Fowler was appointed and commissioned as magistrate for the same office. It was conceded at the hearing of the causes that Bowden's, Tiner's, Tanner's and Fowler's appointments had never been confirmed by the Senate, and that the legislature had adjourned and was not in session after their appointments until 1912. There is no evidence that Harrison's appointment was confirmed by the Senate.
Section 20, article V, of the Constitution, contains this provision: "A sufficient number of magistrates shall be appointed and commissioned by the Governor by and with the advice and consent of the Senate for each county who shall hold their office for the term of two years and until their successors are appointed and qualified." After the adoption of the Constitution a statute was enacted providing *Page 407 that "the Governor shall have authority by and with the advice and consent of the Senate to appoint magistrates in each county of the State, who shall hold their office for the term of two years and until their successors are appointed and qualified. Such magistrates may be suspended by the Governor for incapacity, misconduct or neglect of duty; and the Governor shall report any suspension with the cause thereof to the Senate at its next session for its approval or disapproval." Code of Laws, sec. 982. Also that "the Governor shall have authority by and with the advice and consent of the Senate to fill any vacancy caused by death, removal or otherwise of any magistrate for the unexpired term." Code of Laws, sec. 983. Also, "in the event of a vacancy at any time in any of the offices of any county of the State, whether from death, resignation, disqualification, refusal or neglect to qualify of the person elected or appointed thereto, expiration of the term of office, removal from the county or from any other cause, the Governor shall have full power to appoint some suitable person, who shall be an elector of the county, and, upon duly qualifying according to law, shall be entitled to enter upon and hold the office to which he has been appointed, if it be an elective office, until the next general election, when an election shall be held to fill the unexpired term, and the officer so appointed or elected shall hold said office for the term of said election or appointment, and until his successor shall qualify; and if it be an office which was filled originally by appointment, until the adjournment of the General Assembly at the regular session after such appointment; and shall be subject to all the duties and liabilities incident to said office during the term of his service therein." Code of Laws, sec. 254. Also, "that the Governor by and with the advice and consent of the Senate shall appoint the following officers: * * * magistrates, * * * Any vacancy which may happen in any of the said offices during the recess of the Senate may be filled by the Governor, who *Page 408 shall report the appointment to the Senate at its next regular session, and if the Senate do not advise and consent thereto at such session, the office shall be vacant." Code of Laws, sec. 624. Also, "that the following officers shall be appointed by the Governor * * *. Any vacancy in a county office, by reason of death, resignation, refusal or neglect to qualify of the person elected or appointed thereto, expiration of the term of office, or any other cause. The person so appointed to hold his office, in all cases in which the office is elective, until the next general election and until his successor shall qualify; and in cases of offices which are originally filled by appointment and not by election, until the adjournment of the session of the General Assembly next after such vacancy has occurred." Code of Laws, sec. 625.
By the quotations above as to the law and an application of facts thereto it will be seen that Kirby, Gossett and Potter, being appointed by the Governor and confirmed by the Senate in 1909, held office until the adjournment of the General Assembly in 1911. Harrison having been appointed in 1910 for an unexpired term, and his appointment being a recess appointment, held until the adjournment of the General Assembly in 1911. There being a vacancy in the offices, the Governor appointed Bowden, Tiner, Tanner and Fowler to these offices, and they were commissioned and were entitled to hold and enjoy the offices until the General Assembly met and their names sent to the Senate for approval and confirmation. The Senate having failed to confirm them they were no longer magistrates, after the adjournment of the General Assembly in 1912. Since February 22, 1911, Kirby has wrongfully held the office of magistrate. Since February 22, 1911, Gossett has wrongfully held the office of magistrate. Since February 28, 1911, Potter has wrongfully held the office of magistrate. Since February 27, 1911. Harrison has wrongfully held the office of magistrate. Since the time in 1912 that the Senate refused to confirm the appointments made *Page 409 by the Governor of Bowden, Tiner, Tanner and Fowler they have wrongfully held the office of magistrate.
Wherefore, it should be adjudged that each of the defendants herein are guilty of usurping and intruding into, and are unlawfully holding and exercising, the office of magistrate in Spartanburg county, and it should be the judgment of this Court that the defendants be excluded from the office of magistrate, and that the plaintiff recover costs against each defendant.
MR. CHIEF JUSTICE GARY and CIRCUIT JUDGE T.S. SEASE concur.