I cannot concur in the opinion of Mr. Justice Woods in this case that the Governor did not have the power to remove Rhame as bank examiner and appoint Fraser in his stead. There is not the slightest doubt, in my mind, but that he had the power, both by reason and authority, and while the cases of Sanders v.Belue, 78 S.C. 177, 58 S.E. 762, and The State v. Ansel,76 S.C. 395, 37 S.E. 185, are not exactly decisive of the precise point at issue, yet the inference to be drawn from these cases are that the Governor had ample and plenary power to remove any one appointed by him to office where there was no express provision to the contrary in the act creating the office. I cannot see how the created can be greater than the creator. I think, under the Constitution and statute law of the State, the Governor has the right to remove from office any one appointed by him to office where there was no express provision in the act creating the office to the contrary, for incapacity, neglect of duty, misconduct, etc. The Governor is charged with executing the laws and has the innate and inherent power to remove any appointee of his for failure to perform the duties of the office to which he has been appointed where the act creating the office is worded like the act creating the office of bank examiner in this case. The office of bank examiner is not, in my opinion, a constitutional office. It is one of immense importance and he has great powers for good and evil in looking into the banking institutions created under the laws of the State. The constitutional convention of 1895 was so careful to guard the interests of depositors in the banks that by a constitutional provision it discriminated against and increased the liabilities of the stockholders in banks more than the stockholders of any other institutions. Money is not deposited in banks alone by persons who are competent to manage their affairs, but a great deal is deposited there under the orders of Court, such as estate money, widows' and orphans' money, money in litigation, *Page 465 etc. One of the objects in creating the office of bank examiner was that he inspect the condition of the bank's affairs rigidly and see that the officials of the bank conduct them as the law required. Now, to say that a bank examiner who is appointed for four years, after he gets his appointment, can neglect his duties, be guilty of misconduct, be incapable, be guilty of the sins of both commission and omission, cannot be removed by the Governor, who appointed him, for any of the reasons enumerated or for wilful misconduct, because the act creating the office fixes the tenure and gives no right of removal, is a doctrine that I will never subscribe to until a majority of the Court decides to the contrary. We have no binding authority to the contrary, and even if we did have, I would be in favor of overruling it. In the case at bar, it is being decided by the highest Court in the State, the Court en banc, where the Circuit Judges have been called to the assistance of the Supreme Court, and in the absence of any binding authority to the contrary I do not intend to be bound by any moss-covered, antiquated rules, but be governed by what, in my opinion, is in consonance with reason, common sense and the exigencies demanded by an enlightened and progressive age. It is far preferable that an officeholder, appointed under such a statute as the bank examiner, should be removed by an erroneous, arbitrary exercise of power or even by tyrannical abuse of the power on the part of the Governor than to say that he cannot be removed for incapacity, misconduct or neglect of duty. Even to exercise the powers of removal in this way would be less injurious to good government and would command more respect for the laws of the State. To hold that he cannot be removed for these causes, in my opinion, will stagger and surprise citizens of the State and weaken the enforcement of the laws by the executive department, made by the legislative department and construed by the judicial branch of the government. *Page 466
As to whether Mr. Rhame could be removed without a hearing, I do not think that question is properly here, as when the Governor called on him to explain, he contented himself with challenging the right of the Governor to remove him and he thereby waived his right to be heard.
I think the judgment of the Court should be that the defendant, Rhame, be ousted from office.