This is a proceeding by certiorari, instituted by the appellant Pridmore, Supervisor of Greenville County, for the purpose of a review by this Court of an order of his Honor Judge Mauldin. *Page 128 dismissing the appeal of Pridmore from the order of his Excellency, the Governor, removing him from the office of Supervisor.
The appellant asked that this Court review the decision in the case of State ex rel. Richards v. Ballentine, 152 S.C. 365,150 S.E., 46, 66 A.L.R. 574, which sustained the constitutionality of the Act of 1924, 33 Stat., 997. The application, upon the hearing, was reserved by the Court for disposition in connection with the decision upon the merits of the certiorari proceeding. Permission to review that case has been denied.
My opinion is that the Act of 1924 is so clearly unconstitutional that the permission should have been granted and that the Ballentine case should be overruled and the Act declared unconstitutional. I do not propose to add anything, in support of this conviction, to what is contained in my dissenting opinion in the Ballentine case.
I do not think that the fact that the Court has declined to review the Ballentine case negatives the fact that in this appeal "there is involved a question of constitutional law"; that might be a good reason for sustaining the constitutionality of the Act of 1924, but it does not prove that the question is not involved in this appeal; it was raised by appellant and discussed in the brief; the fact that it may be decided upon the strength of the Ballentine case is conclusive proof that it was raised; it had to be raised before it could be decided.
Upon the merits of the case, there are at least two errors in the proceeding which require a reversal of the decree of Judge Mauldin and a reversal of the removal order of the Governor:
(1) The order of the Governor is based solely upon the conviction of the appellant of the offense of manslaughter which is not, under the circumstances, a valid ground of removal, a position which the Circuit Judge erred in not sustaining. *Page 129
(2) The order of the Governor being thus circumscribed, the Circuit Judge was in error in sustaining it upon other grounds.
I. A review of the proceedings culminating in the order of the Governor appears necessary in disposing of this suggested error.
On April 21, 1931, the Governor issued a rule requiring the appellant, Pridmore, to show cause before him why he should not be removed from office upon the ground that he had been guilty of misconduct in office and persistent neglect of his official duties; the general charges stated were sought to be sustained upon seven specifications which are detailed in the opinion of Mr. Justice Carter submitted herein; one of these specifications, to which particular attention is directed, was as follows: "That the said A. Frank Pridmore, on the 9th day of July, 1930, wilfully, unlawfully and feloniously murdered one Nick Sanders and is now under indictment in the County of Greenville charged with murder."
The appellant made due return to the rule, and on April 29, 1931, a hearing was had before the Governor, at which oral evidence and affidavits on both sides, going fully into the charges and defenses, were submitted.
It having been brought to the attention of the Governor that the appellant was to be tried upon the charge of murder after a mistrial in August, 1930, at the ensuing May term of Court, the Governor very properly withheld his decision (doubtless for the reason that his action might prejudice the interests of the appellant upon the second trial), until after the trial had been had. The trial was entered into on May 11th, and on May 15th the jury rendered a verdict of manslaughter, with recommendation to mercy, upon which the defendant was sentenced to three years' imprisonment at hard labor. From this judgment the defendant appealed to this Court, and was admitted to bail in the sum of $5,000. *Page 130
Without further hearing or notice to the appellant, the Governor on May 28th passed an order of removal, which, due to its great significance in this review, is reproduced here:
"Whereas, it appears that A. Frank Pridmore, was under an indictment for homicide, a true bill having been found against him by the Grand Jury of Greenville County, and his case pending for retrial, he, the said Pridmore, having already had one mistrial, and
"Whereas, it further appears that, subsequent to the hearing, of the Rule to Show Cause why Pridmore should not be removed from office, held before me on the twenty-ninth day of April, 1931, he was convicted of manslaughter and sentenced by the presiding Judge in the said case to serve three years at hard labor, and
"Whereas, it further appears that the circumstances preceding and attendant upon the trial of the case, in addition to the circumstances that must continue to obtain in respect to the plight of the said A. Frank Pridmore are such that he will be so incapacitated that he will not be a fit and proper person to discharge the duties of the important office of Supervisor of Greenville County,
"Now, therefore, I, I.C. Blackwood, Governor of South Carolina, by direction and authority contained in Act No. 615, Acts of the General Assembly of 1924, do hereby remove, from the Office of Supervisor of Greenville County, the said A. Frank Pridmore.
"Given under my hand and the seal of the Executive Department, at Columbia, this twenty-eighth day of May, A.D., One Thousand Nine Hundred and Thirty-one, and in the One Hundred and Fifty-fifth year of the American Independence."
From this order of removal the officer duly perfected an appeal under the Act of 1924 to the Circuit Judge, Hon. T.J. Mauldin, upon exceptions detailed in the opinion submitted by Mr. Justice Carter. On June 19th the appeal was *Page 131 heard by him, and on the 20th he filed an order sustaining the order of the Governor and directing the removal of the appellant. From that order the officer has applied for relief under certiorari proceedings.
A simple reading of the order of the Governor demonstrates, I think, beyond a doubt, that he based it solely upon the conviction of Pridmore of manslaughter and the three years' sentence. After noting the fact of his conviction and sentence, the order continues: "Whereas, it further appears that the circumstances preceding and attendant upon the trial of the case, in addition to the circumstances that must continue to obtain in respect to the plight of the said A. Frank Pridmore are such that he will be so incapacitated that he will not be a fit and proper person to discharge the duties of the important office of Supervisor of Greenville County."
One is left entirely to conjecture what circumstances were referred to, certainly not the charges of misconduct not connected with the trial. It appears that at the hearing before Judge Mauldin a letter, attached to the record, signed by the Governor, was used by the Circuit Judge as ground for holding that the Governor's order was based upon some other ground than the conviction of manslaughter. I do not think that it was any part of the record which must stand or fall by the order and not by a postscript. Even in this communication the Governor makes no specific findings upon the charges contained in his rule to show cause, but evinces clearly the gravamen of Pridmore's offense as follows: "Apart from all of this, in my opinion, the fact that a man has been convicted of manslaughter by a Court of competent jurisdiction sufficiently expresses his conduct and unfitness to justify and demand his removal."
It does not appear that the Governor entered upon a decision that in the circumstances of the homicide Pridmore was guilty of murder or manslaughter. I doubt very much, in view of the fact that the law has provided another tribunal *Page 132 for the determination of his guilt or innocence, whether the Governor would be authorized to pass upon this issue, by reason of the necessarily prejudicial effect of an adverse decision upon the trial of the defendant. In his order he simply adopts the finding of the jury that Pridmore was guilty of manslaughter, and, regardless of the fact that he has appealed from that judgment, which appeal was then pending, he held that it was sufficient ground of his removal.
II. The Act of 1924 provides for an appeal to the Circuit Judge from the order of removal of the Governor; that means, as I understand it, an appeal bringing in question the correctness of the findings of the Governor upon the charges preferred; it does not open the door as to charges upon which the Governor has not passed. The order of the Circuit Judge is not clear whether he intended to sustain the charges which were not passed upon by the Governor; but he does say: "Upon due consideration of the evidence in the case before the Governor upon the Rule to Show Cause and the evidence presented before me, I find that the charges preferred against the Supervisor have been sustained and that he should be removed from office." From this it may be inferred that he intended to sustain all of the charges, regardless of whether the Governor passed upon them or not; this I do not think he had authority to do.
It is true that the Act of 1924 provides that the Circuit Judge shall hear and determine the appeal, both as to law and fact upon the record as made before the Governor and upon such additional evidence as he shall see fit to allow. This manifestly permits him to receive additional evidence, in his discretion, upon the issues heard and determined by the Governor.
For these reasons, I think that the decree of Judge Mauldin should be reversed, which would result in sustaining the appeal from the order of the Governor and a dismissal of the proceedings seeking his (Pridmore's) removal, *Page 133 leaving the State to pursue the course under the Constitution and Statutes other than the Act of 1924.