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

latur ana respondent. ln the argument ol
the cause, 1t was maintained by the Attorney
General:
1st. That the election under which the res
ponGent holds his Office, was held under the
authority of the Provisional Government oi
South Carolina, and that. consequently, his
tenure of Office was at oil times liable to be
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 August the
15th 1865, until the election and quali6ca-
ton, according to law, OF his successor.
Sd. That the election Of ". ]. McKlnlay on
the 9th of December, 1868, and his subsequent
qua i6cation, 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 hostill-
ties between the United States and Confede-
ton declaring that no form of civil govern
ment existed in South Carolina, appointed a
Governor and authoriz the people of the
State, upon the terms and conditions therein
prescribed, to hold convention and form o
Stale Government. Under and by virtue of
that proclamation convention was called, q
constitution was formed, officers were elected
|
laws aud the new government went into full
operation. The source of this new State gov
ernnent was military power. The President
derived his authority to permit its establish
ment from his military character, as Comman-
del in Chief of the Army and Navy of the
United States. Said government was provls-
| ional and ter porary, not permanent aud cs-
tabshed. The civil authority might alter or
abolish it at pleasure. (Litensdorfer & Hough-
ton vs. Webb, 20 Howard, 176.)
And this was exercised by the passage Of
the act of March g. 1857, entitled IAN acL to
provide tor the moro efficient government of
! the rebel 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 Carollna: provides in what manner
said states shall be governed, aud upon what
conditions they shall be finally admitted to
representation in the Congress Of the United
States; that ''uutil such States are bv law ad-
mittcd to representation in the Congress of
the United States, any civil government which
may exist therein shall be deemed provisional
| only, and in oil respects subject to the para
mount authority OF the United States to modi-
fy, control or supersede the same"
The acts amending that OF March 2I, con-
firm beyond q doubtthis view OF the then civil
government OF this State. Under and by vir-
iue of these acts convention was called in
this State, constitution formed, submitted to
the qualified electors, and by them adopted;
and government was thereupon organized,
which, by the terms of the acts Of Congress
and the nature OF the case, was permanent and
established.
II is well settled principle of law establish
ed by elementary writer's and an unbroken cur
rent OF judicial decisions, that even in con-
quered country, the awS in forco at the time
OF the conquest rema ns 30, until repealed or
modified by the conqueror; and fortori this
is the truo rule under tn peculiar circumstan-
ces to which l have referred.
The act of 1872 (vol. 9Th Of the statutes,
page 674) provided that Registrars of Mesne
Conveyauces should thereafter be elected by
joint ballot of both branches OF the Legis-
lature for four years, and until another bo
elected.
By the act of 1896, the Registrar of Mesno
Conveyances was required to give bond and
and security for tho faithful pcrfo nance of
the duties of his office. (yol. 6-2S3
Section 80, Article 2, Constitution of South
Carolina requires members of the General
Assembly, aud all officers, before they enter
upon the execution OF tho duties OF thcir res
pectivc offices. and oil membors of the Bar,
before they enter upon tho practice Of their
profession. to take and subscribe tho oath in
said section prescribed.
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 Oath, 1866, as the acts OF the General
Assembly in reference to The Office OF Registrar
have not been repealed. he will be entitled to
continue IN Office until the 24th day of January
next. unless his official tenure has been termi-
mated by the act OF August, 18th, 1868. (Sess.
acts page A., and the subsequent election aud
qualification of W. j. McKlnlay. Section !
enacts " that all State, District and Municipal
officers appointed or elected under tho late
Provisional Government South Carolina, not
removed by military authority, and whose pla-
ces have not been filled by election or appoint
mcut under tho new constitution, shall con-
tinuc in Office until their sc 'eral offices are
filled by the election or appointment and quail
fcation according to law OF their successors, or
until the duties OF such Offices have been de-
volved by authority of tre General Assembly
upon other officers duly elected or appointed,
and qualified according to Law, under the new
constitution"
The Office not being one of those pru, .ded
for in the constitution, was Liable to bo altered
or abolished by the legislative power, upon
tho organization OF tho permanent govern
meEt.
That department, however chose not t,
amend the act or abolish the office. but instead
provided that the incumbent Should remain in
Office It'll his successor should be elected and
qualified; tho word until" IN the above con-
nection, is word OF limitation; the meaning
therefore Is that he shall continue in Office un-
til the election or appontm mt and qualifica
ton according to law Of his successor, and no
longer. Where the meaning or the body OF the
act is doubtful, the title mas be relied on as
an assistance in arriving at conclusion.
(Sedswlck OH Stat. and Con. Law, page 90, and
cases there citcd.)
The title CT the act of 1868 is san Act regula-
ting the tenure OF certain Offices and appoint
ments thereto aud for other purposes"
All the offices whose tcnurcs are regulated
by this statute wee created by former statutes,
and the term for which tho iDcumbonts were
to hold them respectively, fixed by law, hence
the title seems clearly to indicate dn intention
on the part OF the Legislature TO change the
then existing terms OF the persons to whom
the act applied.
William j. McKinav was elected on tho 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 Office prescribed by the new constitution.
This was an election and qualification within
tho intent of the act OF 1868, aud hence tho
term Of Mr.. Trescot explrol on the day the
claimant in this case complied with these con-
dltious precedent.
Tie construction of this, and the prior acts
ef the Legislature contcndcd for by the re-
spondent, not only does violence to the language
OF that or 1868, but makes the whole act Of no |
effect; in short conSrues II aUry altogether. |
The former act. and that OF 1858, should BE-
construed rdri ndtertd, and then it would |
seem TO a:lmit OF little doubt that the lcsisla-
tive will waS that the officers should be elected
g., {,l-1,