Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1915-07-02

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missioned as provided by law. So long
as we have an organized militia legal
ly constituted, the removal or omcers
who have been elected and commits
stoned as such, in my opinion, can only
, be done as provided in sections 54l
542 and SAB of the code of 1912, vol
ume l, which sections are as follows:
"541. Any officer who shall have
been absent without leave for a Pc
riod of six months or more, or any
officer who shall move beyond the
confines of the state and remain abb
sent therefrom for like period, shall
forfeit his commission.
"542 A commissioned officer can
not be removed from office without MS
consent, except by the senate, upon
the recommendation Of the governor
or the sentence of general court
martial: Provided, That as soon as
practicable after the adoption Of this
code, election shall be ordered for the
election of all elective officers as here
in prescribed, and that thereafter nc
election shall be ordered unless Tor the
purpose of filling an existing Vacanc!
and sufficient grounds for the necessi'
ty for a change, signed by at least
majority Of those qualified to vote a.
the election: Provided, That any com
missioned officer who has become ol
who shall become unfit or incompetent
and therefore incapable Of performing
the duties of his Office, shall, upon ths
recommendation Of his commanding
officer. be ordered before a board Of
officers convened by the governor
whose duty it shall be to determine
the facts as to the nature and cause o.
incapacity Of such officer and to re-
port their findings in the case to tht
governor, stating cause Of incapacity
unfitness or incompetency, If such b'
proved to exist, and If he approves
such finding, said officer shall be dis
charged from the service.
"543. Any officer Of the Nationa
Guard who shall have served as sucf
for a continuous period of ten years
may, upon his own request, be place.
upon the retired list and Withdrawn
from active service and command BY
the governor; and any officer who shal
have served as such for the continuou:
period Of 20 years may, upon his owl
request, be placed upon the retired lis
with rank one grade higher than the
rank held by him on date Of retire
ment, and shall be withdrawn from
service and command"
Mastering Out Officers.
| In this connection I will call youl
attention to the fact that section 52t
of the code Of 1912, which was a par,
of the act declaring the military code
Of South Carolina, provided that the
governor shall on or before June 80
1915, disband a sufficient number OF
companies Of infantry and troops OF
cavalry, and shall muster out Of ser
vice the surplus field and staff officers
necessary to reduce the strength OF the
active militia Of the state to that pre-
scribed by this section, which was 2
500 officers and men. In other Sec
tions Of the statute constituting the
military code there is provision made
for the increase Of officers under GER
tain circumstances, but in no other in
stance than that as provided in Sec
ton 52S is there any specific authori-
ty, in my opinion, for the mastering
out Of service any surplus officers.
In addition to what has been said
in reference to the removal and mus
tering out Of these officers, / will say
that the supreme court Of South Caro-
lima, in case of state VS.. Rhame, 92 S
c. ass, said that the power of re"
moval from office is not an incident
Of the executive Office and exists only
where it is conferred by the constitu-
tion or by the statute law, or as inn
piled from the comforting Of the power
of appointment.
In my opinion this principle of law
applies to officers in the militia as
we'll as to civil officers.
Section 27, article 3, Of the constitu-
ton provides that officers shall be re-
moved for incapacity, misconduct or
neglect of duty, in such a manner as
may be provided by law when no
mode of trial or removal is provided
in this constitution.
- hot "a 2
ficer" as used in that section Of the
constitution is a general one and is
not used in the restricted sense as 1t
is used in other sections Of the con-
stitution. as for instance, in provisions
relating to the impeachment Of certain
officers, such provision only relating
and referring to executive and judicial
officers. The only distinction that
can find laid down in the constitution
of South Carolina between officers in the
militia and civil officers is that the
holding Of a commission in the militia
shall not be disqualification for
holding another Office, and officers in
the militia, as well as notaries pub
lie, are expected from the constitu-
tional provision requiring the terms
of officers to be for some specific period
Land not for lifetime or during good
behavior. l am of the opinion that the
officers referred to cannot be removed,
except as provided in the sections of
the code referred to-sections SAL, 542
and 543.
Not a Case in Point.
The case Of People eX rel Leo ct al,
appellants, VS.. David B. Hill, as COM
mander- in chief, respondent, 126 N.
Y. reports, 497, which is referred to in
our letter, does not, in my opinion, ap-
ply to the case which is under consid-
Grafton. By only cursOry reading of
this opinion it will be seen that the
laws of New York existing at the time
of the redition of this opinion provid-
ed that commissioned officers Of dis
banded organizations should be char
acteriZed as "supernumerary" and
lat,