This is an application to the Court, in the exercise of its original jurisdiction, for a writ of mandamus, requiring the respondents to pay the salary alleged to be due the petitioner, as magistrate for Greenwood.
The allegations of the petition, material to the questions involved, are as follows:
"That on the ____ day of ____, 1910, W.G. Austin, who was the magistrate duly appointed and qualified for Greenwood, in the county of Greenwood, died, and thereafter, to wit, on the ____ day of February, 1910, and during the regular session of the General Assembly for the year 1910, W.H. Kerr was appointed, pursuant to the statute in such case made and provided, to fill the vacancy occasioned by the death of the said W.G. Austin, as magistrate at Greenwood, and entered upon and held said office, until the adjournment of the General Assembly, at the regular session next after such appointment, to wit, the adjournment of the regular session of the year, 1911, when, his term having expired by law, J.W. Canfield was duly appointed and commissioned as magistrate, for Greenwood county by the Governor, duly qualified and entered upon the duties of *Page 407 said office, and, on the ____ day of May, 1911, the said J.W. Canfield resigned the office of magistrate at Greenwood, whereupon, on the 8th day of May, 1911, the Governor appointed and commissioned your petitioner, to fill the unexpired term of the said J.W. Canfield, as magistrate for Greenwood, and your petitioner duly qualified as such magistrate and entered upon the duties of said office."
The return of the respondents is as follows:
"That they deny each and every allegation and statement made in the said petition, not hereinafter admitted.
"That W.H. Kerr was duly appointed and commissioned on January 27, 1910, by the Governor of this State, magistrate at Greenwood, for the unexpired term of W.G. Austin, deceased, and until his successor was appointed and qualified.
"That at the regular session of the General Assembly of this State for the year 1911, W.H. Kerr was duly recommended by the Senate to the Governor for reappointment, and the Governor, in disregard of the advice and consent of the Senate, appointed and commissioned J.W. Canfield magistrate at Greenwood.
"That the said W.H. Kerr refused to surrender the said office to J.W. Canfield, but held the same office of magistrate, and continued to hold the same, and to perform the duties thereof.
"That subsequently the said J.W. Canfield, was appointed by the Governor, auditor for Greenwood county, and upon his acceptance of said office, the Governor thereupon appointed and commissioned the petitioner, B.L. McDowell, and the said W.H. Kerr refused to surrender the said office to the petitioner, and he has continued to hold the said office and to perform the duties thereof."
Section 20, article V of the Constitution contains this proviso: "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 *Page 408 their office for the term of two years, and until their successors are appointed and qualified."
Section 27, article III of the Constitution is as follows: "Officers shall be removed for incapacity, misconduct, or neglect of duty, in such manner as may be provided by law, when no mode of trial or removal is provided in this Constitution."
Section 4, article XV, is as follows: "For any wilful neglect of duty, or other reasonable cause, which shall not be sufficient ground of impeachment, the Governor shall remove any executive or judicial officer, on the address of two-thirds of each house of the General Assembly: Provided, That the cause or causes for which said removal may be required, shall be stated at length in such address and entered on the Journals of each house: And provided, further, That the officer intended to be removed, shall be notified of such cause or causes, and shall be admitted to a hearing in his own defense, or by his counsel, or by both, before any vote for such address; and in all cases, the vote shall be taken by yeas and nays, and be entered on the Journal of each house respectively."
Conceding that section 4, article XV of the Constitution provides a remedy for the removal of a minor officer such as a magistrate, it is not inconsistent with the provisions of section 27, article III of the Constitution. If the remedy afforded by section 4, article XV, had been intended to be exclusive, there would have been no necessity for section 27, article III of the Constitution. The law favors a construction that will give force and effect to all the provisions of a Constitution, rather than an interpretation, that would render nugatory, another part thereof.
After the adoption of the Constitution, a statute was enacted, providing 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 *Page 409 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, section 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, section 983. Also that "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 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 next 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 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 shall report the appointment to the Senate at its next session, and, if the Senate do not advise and consent thereto, at such session, the office shall be vacant." Code of Laws, section 624. *Page 410
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 quality, 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.
"The Governor may remove for cause any person so appointed by him to fill such vacancy." * * * Code of Laws, section 625.
Turning to the statutory provisions hereinbefore mentioned we find in section 982, that magistrates may be suspended by the Governor for incapacity, misconduct or neglect of duty; and, in section 625 that the Governor may remove for cause any person appointed by him to fill a vacancy.
These two sections must be construed together, and confer upon the Governor the power to suspend or remove a magistrate for certain causes, to wit, incapacity, misconduct or neglect of duty.
But there is no statute providing that the magistrate is entitled to a hearing before he can be removed.
In the case of State v. Ansel, 76 S.C. 395, 57 S.E. 185, this Court had under consideration, the power of the Governor to remove certain dispensary commissioners without affording them an opportunity to be heard, before removing them from office.
In that case the Court used the following language:
"Art. III, sec. 27, of the Constitution, provides: `Officers shall be removed for incapacity, misconduct, or neglect of duty in such manner, as may be provided by law, when no mode of trial or removal is provided in the Constitution.' *Page 411
"As no mode of trial or removal is provided in the Constitution applicable to dispensary officers, it is clear that the legislature, under the section above quoted, had plenary power to provide for the removal of dispensary officers with or without trial. Section 556, Criminal Code, provided, that `the term of office of the members of said board (directors of the State dispensary) shall be for two years, unless sooner removed by the Governor.' In the absence of any direction, as to the particular procedure, by which removal was to be made, the statute conferred on the Governor, the power to remove at his discretion, under such procedure as he chose to adopt, for his own satisfaction. It is not contended that the Governor had no power of removal in this case, but the objections go to the manner in which he exercised his jurisdiction. If, however, he had discretion to remove without a hearing, petitioners were not denied any legal right, but received favor in so far as they were allowed opportunity to make defense, after notice and specification of charges. They accepted their office subject to the power of summary removal by the Governor."
We see no difference in principle between that and the present case touching this question.
Our conclusion is, that the petitioner is entitled to the writ of mandamus, and that it should be so adjudged.
MR. CHIEF JUSTICE GARY concurs. *Page 412