The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1911-03-08


| cial session cause the time and place
for holding the same to be notified, for
at least two weeks successively. in
one or more Of the newspapers pub
lished nearest the place where the scs-
sion is to be holden, etc. Said spe-
cial session shall be held in pursuance
of an order which shall be transmitted
to the clerk Of the Court, and by hun
entered on the records Of the Court"
Code of Laws, Section .,743 pro-
vides:
Whenever any Circuit Judge,
pending his assignment to hold the
Courts Of any Circuit, shall die. re-
sign, be disabled by illness, or be
absent from the State, or in case of
vacancy in the office Of Circuit
Judge Of any circuit or in case the
Chief Justice or presiding Associate
Justice of the Supreme Court shall
order a special Court Of Common
Pleas and General Sessions in any
county In this State, upon satisfac-
tory showing that such special Court
is needed, the Chief Justice or pre-
siding Associate Justice may assign
any other Circuit Judge disengaged
to hold the Courts Of such circuits. or
to fill any appointment made necessary
to such vacancy, or to hold such spe-
cial Court; and in the event that
there be no other Circuit Judge dis
engaged, then the Governor, upon
the recommendation of the Supreme
Court, or the Chief Justice thereof.
If the Supreme Court be not in ses-
sion, shall Immediately commission a
special Judge such person learned in
the law as shall be recommended to
hold Courts Of such circuit or to hold
special Court, for that term only, ETC."
Section 2,744 provides:
Special Terms by Governor.
Upon the application to the Gov
ernOr by the solicitor of any circuit,
stating that the public interest de-
mands an extra term Of the Court OF
General Sessions in any county Of the
State, or upon the application Of the
majority of the members of the Bar
Of any county, stating that the civil
business demands an extra term Of
the Court of Common Pleas, il shall
be the duty of the Governor to ap-
point some man, learned in the law,
and to be suggested by the Chief
Justice of the Supreme Court Of the
State, to hold an extra term of said
Court or Courts in said county, and
notify ne clerk of said Court of said
appointment"
Sectio~ 974E provides.
When notified ~ su.r up....l.'
mont ol-rk e the said Court small no.
nsy ne rIoI or authorHes. anc rhe
srsDd jury hall be Summoned 10 at-
tend IL II pe Court OF sessions, ana
petit jury shall be drawn and sum-
moned, If jury cases are to be tried,
In the regular manner, for the pur-
poses of said Court, and as the same
may be necessary, and the clerk
shall notify said special Judge Of the
time fixed for holding said special
term Of court"
The Constitutionality Of these stat
utes is not assai.od in this case but
there Is no room whatever to doubt
the plenary. power Of the Legislature
to provide for special terms OF Court
and the appointment of special Judges
to preside over special or general
terms as has been done in the stat
utes quoted. The contention is that
the power to order a special term is
exclusively judicial, vested in the
Chief Justice under Section 28, first
above quoted, and that Section 2,745
harmonizes with such view. 1t is
quite true that under Section % and
2,743 the Governor has no power
whatever to commission special
Judge not recommended by the Su-
preme Court, or the Chief Justice, IL
the Supreme Court be not in session.
The Governors duty to issue a COM
mission to the appOintee of the Su-
preme Court or Chief Justice is purely
ministerial. He has no discretion
"hatever to ignore or set aside the
Courts recommendation and is bound
to issue the commission, precisely as
he would be bound to issue a commits
sion to Judge elected by the Cen
eral Assembly
Cannot Appoint Without Recommcn-
datiOn.
Should the Governor undertake to
issue commission to person not
recommended by the Supreme Court
or Chief Justice, the commission