February 26, 1912. The opinion of the Court was delivered by *Page 401 In this application for a writ of mandamus requiring the respondents to pay to the petitioner the salary attached to the office of magistrate for the city of Greenwood, the petitioner alleged: "That on the ____ day of ____, 1910, W.G. Austin, who was a magistrate duly appointed and qualified for Greenwood, in the county of Greenwood, died, and thereafter, to wit, on the ____ day of February, 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 such 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 by the Governor, duly qualified and entered upon the duties of 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."
An order to show cause having been issued, the respondents made the following return:
"That they deny each and every allegation and statement made in 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 *Page 402 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 of 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."
The petitioner demurred orally to the return, so that the question is whether, taking as true the allegations of the return, the writ of mandamus should issue requiring the salary to be paid to the petitioner.
By the return it appears that W.H. Kerr was the legally appointed magistrate before the appointment of Canfield and the subsequent appointment of the petitioner by the Governor, and that Kerr still claims to be the magistrate, and is exercising the duties of the office, that the respondents have no interest in the controversy, and that Kerr is not a party to these proceedings.
The first inquiry is whether the Court should in any case issue its writ of mandamus requiring the salary attached by law to an office to be paid to one of two claimants of the office, before the right to the office and the salary has been determined by quo warranto or the statutory action provided by section 424 of the Code of Procedure.
There is no doubt that the writ of mandamus may be issued to compel recognition by one officer of the official character of one in possession of an office as a de facto officer. In Delgado v. Chaves, 140 U.S. 586, *Page 403 35 L.Ed. 578, the petitioners had been adjudged to be de facto county commissioners and the probate clerk whose duty it was to record the proceedings of the board of county commissioners refused to record the proceedings of the petitioners or to recognize them as county commissioners, on the ground that other persons claimed to be de jure commissioners.
It was held that the petitioners were entitled to the writ of mandamus requiring recognition of their official character by recording their proceedings. The decision was based on the ground that the public interests require that the duties of an office shall be performed and that those who are in possession as de facto officers must be recognized or entitled to perform such duties until they are legally ousted by other claimants under proper proceedings. The doctrine of the case is obviously sound and it has been generally recognized. The principle was applied in State ex rel.Bruce v. Rice, 66 S.C. 1, 44 S.E. 963; 67 S.C. 236,45 S.E. 153, where it was held that the Court should not restrain de facto public officers in the exercise of public functions on a mere rule to show cause pending the trial of title to the office.
But a very different principle is involved when the Court is asked to issue its writ of mandamus to require the salary attached to a public office to be paid to one of the claimants of the office. There is only one salary, and as between the two claimants it belongs by law to the rightful claimant, thede jure officer; and necessarily when the Court orders the salary to be paid to one of the claimants it decides against the other claimant. Hagan v. City of Brooklyn (N.Y.),27 N.E. 265; Lee v. Mayor of Wilmington (Del.),40 A. 663.
The Courts in the public interest may by mandamus require the recognition of the actual incumbent of a public office in order that the public business may be transacted, even without requiring an adverse claimant to be made a party, because in doing so it does not adjudicate the right of *Page 404 the adverse claimant, but leaves him to test his right in another proceeding. But it seems perfectly clear that no Court should in a mandamus proceeding indirectly adjudge one of two claimants to be entitled to an office by ordering the salary paid to him without having the other claimant before it as a party to the proceeding. There may be exceptions to this rule where it is perfectly clear that the adverse claim is merely pretensive or where the adverse applicant for the writ of mandamus is clearly the actual incumbent and has performed the duties of the office and the adverse claimant has failed to institute proper proceedings to assert his right after full opportunity to do so. But the Court would be going to extreme lengths in holding that a claim to office based on the action of the State Senate was so clearly pretensive, that the title to the office may be adjudged to be in the petitioner without allowing the claimant under the authority of the Senate an opportunity to be heard in support of the legality of the Senate's action. This is not the case of a person demanding a mandamus for the payment of his salary on a showing that he is the sole incumbent of the office performing its duties and having in possession the rooms and records appertaining to the office. On the contrary it appears by the return that Kerr entered upon the office under a valid appointment, that he has refused to surrender and still holds the office and performs the duties thereof.
If this were all it would seem clear that the Court should not adjudge the claim of Kerr to be invalid and practically oust him as incumbent from the office without allowing him an opportunity to be heard. But it not only appears that Kerr is exercising the duties of the office, but the Court must, under the demurrer, take as true the denial found in the return that the petitioner is exercising the duties of the office of magistrate. The case then comes to this inquiry — will the Court by its writ of mandamus order the respondents to pay the salary of magistrate to one who claims the *Page 405 office under a commission but is not exercising its duties, and thus adjudge such claimant to be the lawful magistrate without giving another claimant who is the actual incumbent refusing to surrender the office and performing the duties an opportunity to be heard? To this inquiry we are unable to see how anything but a negative answer could be proposed.
We do not think, however, it follows from this conclusion that the proceedings should be dismissed; on the contrary, Kerr should be made a party and the whole controversy determined. It is true the general rule is that Courts will not adjudge the title to public office in a mandamus proceeding when the parties have another adequate remedy.Runion v. Latimer, 6 S.C. 126. Many of the authorities so holding are collected in High on Extraordinary Legal Remedies, section 49, and in the note to State v. Gardner, 98 Am. St. Rep. 88. There may be sound reason for the rule where the facts are in dispute, for issues of fact might be more conveniently tried by an action instituted under the Code of Procedure to test the title of office. But where the facts do not seem to be in dispute and the issue is one of law only, no good reason is apparent why the Court may not settle the right to an office under proceedings in mandamus as well as in any other proceeding. To hold otherwise would be to attach too great importance to the mere form in which an issue is presented to the Court. It concerns the public peace and safety that this unfortunate controversy should be settled. The preservation of law and order depends in large degree on the office of magistrate and it is of great public importance that his authority in the community should be unquestioned. The conclusion that the right to the office under such conditions as here exist should be adjudicated in mandamus proceedings is supported by high authority. Luce v. Board of Examiners,153 Mass. 108, 26 N.E. 419; Keough v. Board of Aldermen *Page 406 (Mass.), 31 N.E. 387; Lawrence v. Hanley, 48 Mich. 399, 47 N.W. 753.
It is therefore ordered that W.H. Kerr be made a party to these proceedings and that he be allowed to make his answer to the petition within ten days after the service of the petition on him, and that all questions relating to the merits be in the meantime reserved.
MR. JUSTICE HYDRICK concurs.
MR. JUSTICE FRASER. I concur because I do not think this Court can pass upon the right of removal in a proceeding to which the officer removed (if he was removed) is not a party.
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