The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-04-13


return to the rule are admitted both by re.
lator and respondent. In the argument OF
the cause, 1T was maintained by the Attorney.
General:
LIST. That the election under whi ,h the res
pondent holds his Office, was held under the
authority Of the Provisional Government ol
South Carolina. and that. consequently, his
terminated by the action of the permanent
government which succeeded it.
I'd That the tenure of Office of the respond
ent was confirmed and continued by the act
OF the @ General Assembly, passed Aueust the
10Th, 1868, until the election and qualihca-
ton, according to law, Of his successor.
Sd. That the election Of w. J. McKlnlay on
the 9th Of December, 1863, and his subsequent
qualification, according to law, terminated the
tenure of Office Of the respondent, and gave q
clear right to his successor to enter at once
upon his Office.
To determine this question in this case, it
will be necessary to refer to the past history
OF the country. After the cessation Of HOSTILE
ties between the United States and ConSedo-
rate States, the President issued his proclama-
ton declaring that no form of civil govern
ment existed in South Carolina, appointed q
Governor and authoriz d the people of the
State, upon the terms and conditions therein
prescribed, to hold convention and form q
State Government Under and by virtue Of
that proclamation convention was called, q
constitution was formed, officers were elected
under it, Legislature assembled, passed
laws ana the new government went into full
operation. The source OF this new State gov
ernment was military power. The President
derived his authority to permit it's establish
ment from his military character, as Comman-
der-in- Chief of the Army and Navy of the
United States. Said government was prons-
ional and tenp porary, not permanent and es-
tablished. The civil authority might alter or
abolish it at pleasure (Litensdorfer & Houph-
ton vs. Webb, 20 Howard, 176)
j, And this was exercised by the passage of
the act Of March q, 1857, entitled ;.An act to
provide tor the more efficient government Of
the rebol States" This act decl res in express
terms that no legal State governments exist in
the States therein named, among which is that
OF South Carolina: provides in what manner
said states shall be governed, and upon what
conditions they shall be finally admitted to
representation in the Congress of the United
States; that until such States are by law ad-
mitted TO- representation in the Congress Of
the United States, any civil government which
may exist therein shall be deemed provisional
only, and in all respects subject to the para
mount authority Of the United States to modi-
~, control or supersede the same"
The acts amending that Of March "a, con-
firm beyond doubt this view Of the then civil
government OF this State. Under and by vir-
tue OF these acts o convention was called in
this State, constitution formed, Submitted r.,
the qualified electors, and by them adopted: d.
and government was thereupon organised.
which, by the terms Of the acts Of Congress-
and the nature Of the case, was permanent and
It is we'll settled principle of law establish
ed by elementary writer's and an unbroken cur
rent OF judicial decisions, that even in q con-
quered country, the laws in force at the time
OF the conquest remains so. until repealed or
modlhed oy the conqueror; and q fortlOri this
is the true rule under tn peculiar circumstan-
ces to which have referred.
The act Of 1919 (vol. 9Th Of the statutes.
page 674) provided that Registrars of Mesne
joint ballot of both branches OF the Lepis-
lature. for four years, and until another be
elected.
By the act Of 1926, the Registrar of Mesno
and security for the faithful perfo nance of
the duties Of his Office. (vol. 6-2s3
Section 80, Article 2, Constitution Of South
Carolina, requires members OF the General
Assembly, and all officers, before they enter
upon the execution or Ine uuIies of tneir res
pective Offices, and all members of the Bar.
before they enter upon the practice of their
procession. TO take and subscribe the oath in
It will be observed that new condition not
before required was imposed upon that officer
by this constitutional provision.
The respondent having been elected on the
1st day OF December, 1865, and commissioned
January Gath, 1866, as the acts OF the General
in reference to the Office of Registrar
have not been repealed, he will be entitled to
continue IN office until the Oath day of January
mated by the act OF August, 18th, 1868. (Sess.
acts, page 4 and the subsequent election aud
qualification of W. j. McKinlay. Section /
enacts 8 that all State. District and Municipal
Provisional Government Of South Carolina. not
by military authority, and whose pla-
ces have not been filed by election or appoint
ment under the new constitution, shall con-
tinue in Office until their se yeral Offices are
dlled by the election or appointment and auali-
fcatlon according to law of their successors, or
until the duties Of such offices have been de-
volved by authority of tie General Assembly
upon other officers duly elected or appointed,
and qualified according to law, under the new
The Office not being one of those provided
for in the constitution, was liable to be altered
or OF apollshed by the Legislative power, upon
the organization Of the permanent govern
ment.
That department, however chose not to
amend the act or abolish the Office, but instead
provided p !; that the Incumbent should remain in
qualified; the word s'until," in the above con-
nectlon, is q word Of limitation; the meaning
therefore is that ne shall continue in office un-
til the election or appointment and qualfica-
ton according to law Of his successor, and no
longer. Where the meaning OF the body Of the
act is doubtful, the title may be relied on as
an assistance in arriving at conclusion.
lsedgwck on Stat. and Con. Law, page SO, and
cases there cited.)
The title ofthe act of 1868 is "an Act regula-
ting the tenure OF certain offices and appoint
ments thereto and for other purposes"
All Cne OmceS whose tenure6 are regulated
by this statute we"e created by former statutes,
and the term for which the ipcumbents were
to hold them respectively, fixed by law, hence
the title seems clearly to indicate an intention
ON the part Of the Legislature to change the
then existing terns Of the persons to whom
the act applied.
William j. McKinay was elected on the ninth
day OF December, 1868, by joint ballot of both
houses Of the General Assembly; on the sixth
day OF January, 1869, he was duly qualified by
giving the required bond and taking the oath
OF ofice prescribed by the new constitution.
This was an election and qualification within
the intent OF the act OF 1863, and hence the
term or MIR. Trescot expired ON the day the
claimant in this case complied with thess CON
dltions precedent.
The construction of this, and the prior acts
OF the Legislature contended for by the re-
epondent. not only does violence to the language
OF that OF 1868, but makes the whole act OF no
effect; In short c0nslrues 1t a,o1y aAoqether.
The former act. and that Of 1858, should be
part naGteviG, and then it would
seem to admit Of little doubt that the legisia-
live will was that the officers should be elected
by joint ballot, should give bond, take the pre-
scribed oath. and coHtinhe II office for four
years, provided those who were elected by the
Provisional Government continue in Office onIy
until their successors should be elected. II
The Legislature had devolved the duties of
this office uOOn the Clerk or the Gos,rt 70 r~n,