The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1892-05-11
COLUMBIA, May 4, 1892.
Hon. I. 3. Gary, Wright's Hotel.

! lit or the opinion ASKED anu leSECU lHd0
want of time has not allowed me 70 de-
velope the subject as fully as would
like.
Section %, Article I, of tie Copstitu-
ton of South Carolina provides that
'sthe legislative, executive and Judicial
departments Of the government shall
forever be kept separate and distinct
from each other, and no person or per-
sons exercising the functions Of one
department shall assume or discharge
the duties of any other.'
The evident intention Of this section
is to prevent any person from holding
an office in two departments of the
government at one and the same time,
member of the Legislature from
holding the office of Judge and v1ce
yersu. The functions Of depart
mentn can only be exercised by per
son holding an office in that depart
ment, so that the query is whether
commission to you, as zone learned IN
| the law" to sit in special case, invests
YOU with the Functions" Of the judi
cisl department within the meaning OF
| the Constitution.
I do not think so, for the functions
Of the judicial department are vested
by the Constitution in certain persons,
and no act of the Executive can divest
those functions by the appointment OF
a person to act in a special case. The
same general rights, powers and duties
are still vested in the Supreme Court,
but in q certain contingency the Gov
erno- is empowered to appoint some
one to perform a specific duty il spe-
cial case connected with the judicial
department, the only constitutional
qualification being that such person
shall be lone learned in the law"
One appointed in special case is not
a Judge and therefore is not invested
With the functions of the Judicial de-
partment. If this is not so, then no
Circuit Judge could sit upon The Su-
pre1ne bench, for he would be holding
| the Office of Circuit and Supreme
Court Judge at the same time, which
no one would contend for a moment
that he could do under the Constitu-
ton. Your appointment does not make
you a public officer capable of "eSer-
cising the functions of the judicial de-
partinent.
An office is an employment in behalf
OF the government in any station OF
public trust, which is not merely tran
sient and occasional or incidental. 1t
embraces the idea Of tenure, duration
| and duties. Tho words function" and
"office" are nearly synonymous terms
The definition given by Worcester of
"function" is ''employment, office, oc-
cupation." While his definition Of
"ofice" is "a dignity attended with a
public Junction. Bouvier's Law Die
tionary defines function "to he the occu-
patton of an office; by the performance
of its duties the officer is said to fill his
functions. And a functionary is one
who is in office or in some public em-
plovment." Therefore il order to dis
qualify the appointee Of the Governor,
such appointment must make him
public officer capable Of exercising the
functions of the office. Now public
officer, within the meaning Of The Coz
stitution has respect to permanent
trust to be exercised in behalf of the
government, or all citizens who may
need the intervention of a public func-
tionary or officer, in all matters within
the range of the duties pertaining to
the character of the trust. It means q
right to exercise generally aud in all
proper cases, functions of a public trust
or employment, to receive the fees and
emoluments belonging to it, to hold the
place and perform the duty for the
time and the tenure prescribed by
law.
The case of a referee appointed by
the Circuit Court to hear testimony
and decide cause, is analogous to the
one in point. His rights, powers anc
duties are confined to a specific case
. and it will hardly be contended tha
he is vested with the function of the
judicial department, and the decision:
amply sustain the position that he i:
not Judge. Judge Allen Of the Su
preme Court Of the New York, ha:
said: "Referees for the trial and de
cision of actions are officers exercising
judicial powers under public author
ity, but they are not public officers
within the meaning of the Constitu
ton, and while the duties of referees
are of public nature, and in certain
sense concern the public, and the ad
ministration of justice, and are exer
cised under authority derived directl.
from the State and not from individ
uals, still they related especially t
particular individuals and specifi
litigation; and their authority is re
stricted to specific matters; no genera
powers are conferred upon than autho
riziDg to act in respect to all like cases
or ii any case or matter other thai
specified and named in their appoint
ment. They owe no duty to the pub
= lie, and the trusts that they cXercis
: are transient and occasional.n Thi
$ line Of reasoning, it seems to ME,
applicable here. Your authority is re
u stricted to special ma' ar betwee
l, private parties; it is ira . Mt and oc
q casional, involving no possible contlic
:. between the executive and judicial de