I think the Governor had the power to remove the bank examiner.
If he had not, then in a supposed case, admitted to be flagrant, and touching the most sensitive interests of the people, the Governor, sworn to "take care that the laws shall be faithfully executed," is powerless to execute them.
In such a case the examiner might accept from the banks bribe money; he might refuse to make any examination; he might be convicted of crime; and the Governor would be powerless to act.
Such a result ought not to be abided, except upon the plainest mandates of the law, and from which there is no escape.
The banks carry the arterial blood of the business world, it ought to reach the people quickly, free from taint of suspicion.
A broken bank is like a poisoned spring of water; it affects the whole community, stockholders and strangers; its evil effects last for a generation.
The risk of such a disaster ought not to be taken by that construction of the law which will promote bank failures.
If there is an officer in the State who needs to be kept closely at his work, and always on the alert, he is the bank examiner.
If the Governor is robbed of the power to exact such a performance by the examined, and if such exaction is necessary, who will do it? *Page 467
The Constitution only prescribes, in the article on corporations, that the General Assembly shall provide by law for the thorough examination of banks.
The General Assembly only provided that the Governor shall appoint a competent person to examine the banks; the term of service was fixed at four years; no provision was made in the act, or elsewhere in the statutes, for the removal of such an officer.
The Constitution, it is claimed, limits the power of the Governor.
The section relied upon is found in the article on impeachments, and is section 4 of that article.
It is confessedly irrelevant to this case unless the bank examiner is an executive officer liable to impeachment.
It is inconceivable that an officer of that character, created under a general provision of the Constitution, should be subject to trial by impeachment.
Such a construction is calculated to bring the administration of law into ridicule.
The General Assembly evidently thought that the examiner might be removed otherwise than by impeachment; for in the first act on the subject, another mode of his removal was explicitly prescribed. Code of Laws, section 1768.
There is no reason to dogmatically classify every officer of the State as either executive or judicial; and if there was, the framers of the Constitution never intended that an executive officer like a bank examiner was subject to trial by impeachment; they only provided for the impeachment of such executive or judicial officer as were liable to that procedure. Nor did they intend that he could only be removed upon an address of two thirds of the General Assembly, in the event there was not sufficient ground for impeachment.
When it has been once admitted that the General Assembly had the power which it undertook to exercise in section *Page 468 1768 of the Code of Laws, then the article on impeachments has no relevancy to this case.
The circumstance that the Constitution has limited the Governor's power to suspend officers guilty of embezzlement (article IV, section 22), and officers of penal and charitable institutions (article XII, section 8), does not warrant the conclusion that it was intended to limit his power in the case at bar.
But rather the contrary conclusion is inferable; the circumstances that his power was limited in particular cases implies that in other cases it was not limited.
This case is rather governed by article III, section 27, of the Constitution.
Reference there is made simply to "Officers," not executive and judicial officers; and for any neglect of duty by them, wilful or not, they may be removed as the law provides; for the Constitution, they thought, in the article on impeachments provided no remedy, else why this.
It must be conceded that there is no statute "law" provided, and the law referred to includes the common law and must be governed by that law.
The issue, therefore, is this, if such an officer be confessedly guilty of a neglect of duty midway his term of office, is he exempt from removal by any power? For if not subject to this power, then to none. The question ought to furnish the answer.
Admittedly the power to be exercised by the Governor is not arbitrary, nor at will; it must be for cause, and cause will move any man from any office, any time.
The next issue is a mixed one of law and fact, and it is, has the Governor given the examiner a right to be heard before his removal?
Perhaps it was not such a hearing as Courts give litigants; but it was a hearing, and it would not be wise for the Courts to hamper the executive by set rules to govern him in his execution of the laws. *Page 469
Nor is it wise to weigh too nicely the evidence upon which he acted.
If injustice has thereby been done, it will be incomparable to that statement of the law which will paralyze all Governors in their efforts to preserve the fiscal institutions of the State.
Finally, in my opinion this cause is controlled by the case of The State ex rel. Rawlinson v. Ansel, Governor, 76 S.C. 395,37 S.E. 185.
The dispensary commissioners were as much executive officers as is the bank examiner.
The Constitution and the statutes also made provision for them. It is true the statute provided that the Governor might remove them; but if the case was controlled by the Constitution, in the article on impeachments, that provision of the statute was of no force.
In that case Governor Ansel removed the commissioners, and his act was sustained.
I am of the opinion that H.W. Fraser is the lawful bank examiner of the State.