Not being able to agree with the conclusion reached in the leading opinion in this case, I am impelled to dissent, and shall, in a brief way, state my reasons therefor.
The purpose of the suit and the facts involved are stated in the leading opinion and, therefore, need not be restated here, except such as may be necessary to call attention to the dates the parties referred to assumed the duties of the office involved, that is, the office of the Clerk of Court for Darlington County.
The late J. Hart Coker was elected to this office at the general election in the year 1928, and soon thereafter assumed the duties of the office, with the right to hold the same for a term of four years. Mr. Coker died in the year 1930, the exact date not being given in counsels' agreed statement of facts, but his death occurred some time before the general election of that year, which was held in November. Shortly after the death of Mr. Coker the Governor appointed Miss Blanche Law to fill the said office, such appointment to be effective, it seems, until the next general election to be held in November of that year, 1930. At this election the petitioner, J.E. Cannon, as the nominee for said office in the Democratic primary, was duly elected as such officer, that is, Clerk of Court for Darlington County. Mr. Cannon soon thereafter qualified and was duly commissioned by the Governor *Page 55 as such officer "and since then has been exercising the functions of the office." It is the contention of Mr. Cannon that under the provisions of the Constitution of 1895 he was elected to said office for a period of four years, and for that reason did not enter the Democratic primary, nor the general election held in 1932, contending that his term of office does not expire until 1934. As stated in the leading opinion, Mr. McLeod entered the Democratic primary of 1932, and being declared the nominee for said office in the said primary entered the general election held in November, 1932, and was declared duly elected to the said office in said election, and thereafter was commissioned by the Governor. Mr. McLeod contends that he is entitled to the office but that he cannot enter upon the duties of the same for the reason that Mr. Cannon is still in charge and functioning as such officer.
The section of the Constitution upon which Mr. Cannon, the petitioner-appellant, relies is Article 5, § 27, Constitution of 1895, which reads as follows:
"Clerk of Court. — There shall be elected in each county, by the electors thereof, one Clerk for the Court of Common Pleas, who shall hold his office for the term of four years, and until his successor shall be elected and qualified. He shall, by virtue of his office, be Clerk of all other Courts of record held therein, but the General Assembly may provide by law for the election of a Clerk, with a like term of office, for each or any other of the Courts of record, and may authorize the Judge of the Probate Court to perform the duties of Clerk for his Court under such regulations as the General Assembly may direct. Clerks of Courts shall be removable for such cause and in such manner as shall be prescribed by law."
Under this provision of the Constitution, when one is elected to the office of the Clerk of Court, at a duly authorized general election of this State, such person is elected for a term of four years; and this is true regardless of statutory *Page 56 law enacted since the adoption of the Constitution. In this connection see the case of Wright v. Charles, 4 S.C. 178, and subsequent cases, in which this case is cited with approval. Further, in this connection it may be stated that the provision of the Constitution, regarding the term of office of the Clerk of Court, of force at the time of the decision in the Charles case, was to the same effect as the section of the 1895 Constitution, quoted above. But it seems to be the position of the respondents that Mr. Cannon was not elected for a term of four years at the general election held in 1930, upon the ground that said election, so far as the Clerk of Court is concerned, was invalid and a nullity, and that, therefore, Mr. Cannon had no right to hold the said office for any period at all. This contention seems to be based on a statute enacted in 1889, appearing in 1932 Code as Section 2350, wherein it is provided, in effect, that there shall be an election held every four years for the election of a Clerk of Court, reckoning from the year 1888. That section reads as follows:
"General Election for County Officers — When Held. — There shall be a general election for the following county officers, to wit: county supervisors and county superintendents of education held in each county at every general election for members of the House of Representatives, except in those counties in which the term of office of the county superintendent of education and county supervisor is four years; and for the election of sheriff, coroner and Clerk of the Court of Common Pleas, at every alternate general election, reckoning from the year one thousand eight hundred and eighty-eight, except as to the counties of Berkeley and Cherokee, and except for sheriff and coroner in Hampton County. The Probate Judge in every county, and the Clerk of Court in Berkeley and Cherokee Counties, and the sheriff and coroner in Berkeley, Cherokee and Hampton Counties, shall be elected at every alternate general election, reckoning from the year one thousand eight hundred and ninety." *Page 57
It is also provided in Section 3577 of the Code of 1932 for an election of the Clerk of Court of Common Pleas at each alternate general election, reckoning from the election in the year 1888. Relying on this provision respondents contend that there could be no election for Clerk of Court for the County of Darlington until 1932, and that the election in 1930 was, therefore, in so far as the said office was concerned, a nullity.
Four years after the adoption of the Constitution of 1895 another Act was passed regarding the election of the Clerk of Court, which Act may be referred to as the Act of 1899, appearing in the 1932 Code, Vol. 2, as Section 2351, and attention is directed to the same, which reads as follows:
"Vacancy in County Offices — How Filled. — 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 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."
As I understand the position of respondents, it is their contention that this Act is unconstitutional, upon the ground that it contains a provision which was intended to fix the *Page 58 term of office, under the conditions named in the Act, for a period of time less than four years, in contravention to the provision of the Constitution above referred to, and that, therefore, there was no authority for holding the general election held in November, 1930, that is, in so far as the office in question was involved. On the other hand, Mr. Cannon, the petitioner-appellant, contends that that portion of the Act which would under the conditions named in the Act limit the term of office to the next general election, that is, for the unexpired term, which in the case at bar would mean two years, should be eliminated, and the remainder of the Act remain of full force and effect, since it would then not be in contravention of the provision of the Constitution above referred to, Article 5, § 27, which fixes the term of office of the Clerk of Court for four years. Even if it be granted, as contended by those opposed to the view herein expressed, that it was the intention of the Legislature passing the Act under consideration to limit the term of the office to less than four years, that would, in my opinion, under the conditions named in the Act, and under the facts involved in the case at bar, not be sufficient reason for declaring the Act unconstitutional, when it appears that the objectionable feature of the Act can be eliminated without doing violence to the real purpose of the Act, namely, to provide for filling the office in case of a vacancy occurring before the end of the term. Fixing the length of the term of the office in question, was not in my opinion, the primary purpose of the Act. In enacting the provisions of the law contained in this Act (the Act of 1899) the Legislature evidently had in mind, as its chief and primary purpose, making provision for filling the vacancy caused in the manner named in the Act, for the Constitution makes no provision for filling the vacancy. The Act providing for filling a vacancy, of force at the time of the decision of the case of Wright v. Charles,supra, contains, in effect, the same provisions contained in the Act of 1899, now under consideration, except that the *Page 59 latter contains the additional provisions which would limit the term of office to the next general election, or for the unexpired term of the deceased officer. This provision in the Act, of course, cannot stand, for the reason that the Constitution specifically states that the person elected shall hold his office for the term of four years, and until his successor shall be elected and qualified, but certainly it does not follow that the other provisions in the Act are in contravention of the Constitution, and, in my opinion, the Act should not be declared unconstitutional, and I think that the provisions contained therein, providing for holding an election for the election of the Clerk of Court at the next general election, when a vacancy occurs in the manner named in the Act, should remain in full force and effect. Therefore, in my opinion, Mr. Cannon is entitled to hold the office in question for the term of four years, reckoning from his election in the general election in 1930, and until his successor is elected and qualified.
In support of the views herein expressed attention is called to the case of Wright v. Charles, supra, also, to the case ofReister v. Hemphill, 2 S.C. 325, and to all of the other cases cited or referred to in the leading opinion. I wish to state, further, that in reaching the conclusion herein expressed I have kept in mind the general rules that should govern in declaring an Act unconstitutional, and, in this connection, call attention to the fact that, for many decades, officers, as well as the bar of the State, have been governed by the rule expressed by this Court in the case of Wright v.Charles, and that since the enactment of the Act of 1899, more than thirty years ago, the same practice has governed. To sustain the constitutionality of the 1899 Act, eliminating the provision which would change the length of the term of office, would, in my opinion, not violate the rules and principles recognized by this Court in determining such questions, and would not defeat the primary purpose the legislative body had in mind when the statute was enacted. *Page 60
I therefore think that Mr. Cannon, the petitioner-appellant, is entitled to hold the office in question for a period of four years, reckoning from the election in 1930, and until his successor is elected and qualified.
ORDER ON PETITION FOR REHEARING