Ex parte Norris

8 S.C. 408, 1877 S.C. LEXIS 42

• Court: Supreme Court of South Carolina
• Decided: April 24, 1877
• Status: Published

Opinion

WillARD, A. J.

The question to be considered is whether the pardon issued by Wade Hampton as Governor of the State to Tilda Norris is valid and effectual, so as to entitle her to be released by the Superintendent of the Penitentiary, who holds her in confinement under the judgment and sentence of the Court of General Sessions for the County of Laurens.

This question resolves itself into another, — whether Wade Hampton was Governor de facto at the time of issuing the pardon in question. A pardon issued by a Governor de faeto is valid. This principle is recognized as applicable to pardons issued by the King of Great Britain. — Bacon’s Abr., Title “Prerogative,” A. The reason there assigned shows clearly, that the rule does not depend on the extent of the powers existing in the Crown, but on the character of those powers. It is placed on the ground that there should always be one capable of administering the laws at the head of the government. The existence of organized society is a primary necessity to all communities; its functions cannot safely be suspended for even short periods of time. Laws derive their efficacy, as means of protecting individual and public rights, from the physical support which is brought to their aid. In all stable governments this physical force is practically in the hands of the chief executive officer, by whatever name he may be called. Under our form of government the head of the State is commander-in-chief of the military power of the State, and as such represents the reserved force that constitutes the ultimate strength of the laws. In his relation to the ordinary and civil means of overcoming resistance to the mandates of the Courts, he has important functions to perform that can never be safely suspended. All regular governments have some mode by which the right of succession to its chief office is determined; but, whatever may be such rule of succession, occasions have arisen and will continue to arise when a' case of disputed succession exists. ‘During such intervals there must be a continued administration of the laws,- and experience of government has shown that it is safer and better to recognize the person who succeeds in obtaining possession of the executive powers during the existence of the contest than to subject the government to the risks incident to a failure in the exercise of its chief executive functions. On this foundation the doctrine rests already adverted to. Certain essential principles of government are always applicable, whatever may be the form of government, and the one referred to is of that class. That under our form of government a suspension of the executive functions would be attended with evils similar to those that have led to the adoption of the English rule as to the authority of a defacto head of the State is sufficiently demonstrated by the present condition of this State. Uncertainty as to the administration of the laws has not only relaxed the vigor of the criminal jurisdiction, causing an increase of crime, but has impaired public faith and confidence to such an extent as to practically paralyze the industry of the State. It must, therefore, be concluded that the office of Governor of a State is within the reasons of the rule that imparts validity to the official acts of the person who for the time being is the actual possessor of the powers of chief executive.

In order to determine whether Wade Hampton was de facto Governor at the time of issuing the pardon, it is necessary to consider what-circumstances must exist in order to entitle a person to be regarded as defacto Governor.

But, before considering the state of the law as it regards this question, it may properly be suggested that it is not enough for the purposes of the present case to determine that Wade Hampton was duly elected Governor and is entitled to exercise the duties of that office, for the validity of his pardon depends on the fact that he was actually in the exercise of these powers at the time of its issuance. It is not enough that he had the right to act as Governor at that time; it must appear that he was, in point of fact, acting as Governor. But, where two persons claim each to be exercising the office of Governor, it may become necessary, in order to determine which has the better presumptive right, to look into those facts which constitute the color of their respective claims, and, in this way, the fact that one has a perfect and the other a spurious claim may come to be judicially discovered, while the real object of the inquiry will stop short of determining the merits of their respective legal titles to the office in question. What, then, is essential in order to constitute one a de facto officer? In other words, under what circumstances may third persons claim that the acts of a public officer are valid and effectual, notwithstanding a fatal defect in the title by which he claims to hold the same? The authority of the cases is far from clear as to what are the essential conditions in virtue of which public official acts are regarded as valid, and binding, independently of rightful. authority in the public officer from which they proceeded. The various applications of the rule made in the cases that have arisen under it can hardly be said to have been generalized into any statement that can serve the purposes of an accurate guide to a sound conclusion.

The view which appears to approach the nearest to satisfying the reason of the rule as laid down, and to connect together the various points actually ruled, is embraced in the statement that to constitute an officer defacto he must have a presumptive or an apparent right to exercise the office, resulting from either full and peaceable possession of the powers of such office or reasonable color of title with actual use of the office.

There are two distinct cases put in the foregoing statement: One case is where one in possession has full and peaceable possession, and the other where, while in the actual use of the office, he cannot be said to have full possession of all its powers. By “full possession” is meant such possession as would enable its incumbent to-fulfill all the substantial purposes of such office. The case last mentioned would embrace one where two persons claiming adversely to each other had succeeded each in becoming invested with some of'the functions of the office and thereby excluding the other to such extent from the full use of the office. It is evident that these cases embrace all contingencies likely to arise and cover the principles involved. An instance of the first class may be supposed when one claims and occupies the office of Governor with full recognition and the possession of all the powers of the office in virtue of an election, It happens that subsequently it is determined judicially that the election under which such claim is made was unconstitutional and void. We suppose a case where the judgment does not proceed on the direct right to hold the office of Governor, but collaterally to it. It is clear that, notwithstanding such a decision, the official acts of a person filling the office of Governor would still be entitled to respect as valid.—Taylor vs. Skrine, 2 Brev., 516. And yet, after it is known by final judicial action that the election was invalid and void, it could not be said that subsequent official acts derive their validity from the fact that the incumbent possesses colorable title to his office at the time of performing such acts. We may suppose a case still more severely testing these principles: As when, after the election and before the installation of the person elected Governor, a judicial determination declaring the election void had occurred, and yet the person claiming election proceeds and takes the office and becomes fully and peaceably invested with all its powers. In this ease it cannot be doubted that the official acts of such person would be entitled to be respected. It will be remarked in this connection that full and peaceable possession of the gubernatorial office implies, from its nature, recognition by the branches of the government co-ordinate with the executive. In the last supposed case the officers would enter without any color of title, but against clear right, and yet it might so happen that unless such succession should take place a lapse in the administration of the laws might occur, rendering such succession desirable.

Whatever may be thought as it regards inferior offices, the ground upon which the duty of the citizens to obey the chief magistrate of the State rests should be easy of comprehension — as free as possible from mere matter of opinion and from fictions of law. Uncertainty as to duty in this respect tends to breed public disorder. If the proposition is advanced that obedience to a chief magistrate is due whenever he is found fully and peaceably possessed of the powers of his office, it is at once intelligible and the reason is apparent. If, on the other hand, it is affirmed that that duty is limited to cases where such officer has color of title, doubt and uncertainty immediately arise as to what constitutes color and what is the measure of sufficiency as applied to mere color of right.

The simple form stated is the one in which Bacon puts the doctrine of obedience to the reigning sovereign in the reference above given. The case of two persons claiming by antagonistic title, each possessed of some of the powers or functions of the same office, evidently must be treated on different principles from those just stated; neither having complete,possession, a resort must be had to the respective grounds on which their several claims stand. If the question arises between third parties, where there is a disputed Governorship, the Courts cannot pass judgment directly and finally upon the merits of their respective titles for the want of proper parties to such a decision. It is obvious, then, that in a collateral proceeding the question will be: “ Which has the best apparent right?” The presumption of law will clearly arise in his favor. The appearance of right, real or unreal, in fact, is what is called “color,” and it is manifest that color may exist from the least appearance of right to that which is complete and convincing, and which is, in itself, the highest legal evidence of right. It is manifest that if two persons are contending for the same office, and neither can take advantage of the fact of full and peaceable possession, the one that has the clearest and the best ground for raising a presumption of title ought to be preferred. It is necessary to look into adjudicated cases to see if 'the foregoing conclusions have adequate support. It will not be necessary to group the cases with reference to distinctive features of the question, but to consider their separate effect upon the general propositions. Such a research is indispensable before the grounds can be clearly known upon which the present controversy must be disposed of.

As would be anticipated, the English cases do not develope the doctrine in question as fully as it is stated in the American cases. In this country the modes of election and appointment and the conditions precedent to taking actual possession of office are various and often involve particulars that are not evidenced with that certainty requisite to enable the community to judge accurately as to the merits of a claim to perform the functions of a public office. The executive commission in this country, while evidence of the fact of appointment or election, is not conclusive but may be rebutted, while the royal commission is not only evidence of title but the source of title itself. Woodbury, J., in Johnston vs. Wilson, (2 N. Hamp., 202,) says: “On gen.eral principles, the choice of a person to fill an office constitutes the essence of his appointment.” * * * “After the choice, if there be a commission or an oath of office, or any ceremony or inauguration — these are forms only — which may or may not be necessary to the validity of any acts, under the appointment, according as usage and positive statute may or may not render them indispensable.” This authority, well supported by citations, affords an explanation of the fact that, under the local customs and laws of the various States, the question of title is sur. rounded, in this country, by many complexities.

Richardson, J., in State vs. Riley, (2 N. & McC., 356,) says: “ Regarding, then, the common law, we easily perceive why a commission may be essential under the English government. There, in a word, it is at once the expression of the royal will and the partial delegation of his power. There, for the purposes of his office, the officer is the agent of the King, and his commission is his letter of attorney, wherein he finds his power, of what kind and to what extent.” He further says that “in this country the officer derives no power from the chief magistrate.” It is apparent, as it regards all officers in England who derive their authority by commission from the King, that the evidence of their authority is so notorious that no field exists for that class of contests as affecting officers of that description which are essential for a full judicial development of the principles involved. The doctrine has indeed been applied in that country to corporate officers, but it is easy to see that its application to corporate officers must involve important modifications of the rule as appropriate to the officers of the supreme government. The evils resulting from uncertainty as to the exercise of public authority delegated to a corporate body are local and comparatively small, while the means for remedying abuses or lapses of public authority of that class are ample.

The result reached in Rex vs. Lisle (2 Str., 1090,) was doubtless due to the peculiar relations subsisting in that country between the King and corporations existing by his grant. In that case, it was held that the want of due appointment by a Mayor who presided at a corporate election invalidated the election to such an extent that the person chosen as Mayor at such election was held incapable of holding the office as against the crown. Here the origin of corporate authority is so different that a different conclusion would probably arise from the application of the principles applicable to de facto holding. It must be borne in mind, however, that the last mentioned case involved the effect of the public acts of an officer having no more than de facto authority from the crown, and differs materially from such as concern the effect of such official acts in those persons only. The principle in question would seem to find better illustration in eases involving the public authority of the reigning sovereign, for in that case the argument drawn from necessity and public convenience has its utmost force. It is said in Bacon’s Abridgment, Prerogative A, quoting from Foster’s Criminal Law, 399, that what constitutes a King defacto is “full and peaceable possession of the crov?n.” The reason for the rule as to defacto officers is stated in Yiner’s Abridgment, 114, as follows: “For the law favors acts of one in a reputed authority and the inferior shall never inquire if his. authority be lawful.” The elements of the ground of recognizing de facto competency, as stated in the two authorities just cited, are “reputed authority” and “full and peaceable possession.” These are readily resolved into the statement already made, which places the right upon a presumption arising out of the fact of full and peaceable possession.

People vs. Collins, 7 Johns. R., 549: In this case a Town Clerk refused to file a survey of a public road on the ground that the Commissioners of Highways were not duly in office. The Court granted a mandamus to compel the filing of the survey on the ground that the Commissioners were de facto such, and the Clerk, being a ministerial officer, could not dispute their authority. In holding the Commissioners to be d'e facto, stress is laid upon their having color of title to their office. The Court says that the Commissioners “were Commissioners de Jacto, since they came to their offices by color of title, and it is a well settled principle of law that the acts of such persons are valid when they affect the public or the rights of third persons who have an interest in the act done; and this rule is adopted to prevent the failure of just tice.” This statement, while it recognizes the fact that color of title is adequate ground for claiming as .against third persons the right to exercise the functions of an office, does not necessarily include the idea that proof" of color is unnecessary when full and peaceable possession is had of the functions of such office. Had the case presented no color of title, but the mere fact of full and peaceable possession, that question would have been before the Court; but it appears to have been otherwise.

Fowler vs. Beebe, 9 Mass., 231: This was an action between third parties involving the due service of process purporting to havé been served by a Sheriff's deputy. It was alleged that the Sheriff had never been appointed such. The fact was that the County in question had been newly created, but that the Sheriff had been appointed by the Governor before the Act passed, and therefore at .a time when the County had no legal existence. It was held that the Sheriff was de facto such, and that his title could not be disputed in a case where the Sheriff was not a party; that it would have been otherwise in an action in which the Sheriff was attempting to justify under process, or where an information to try his title had been brought. The precise grounds on which the conclusion that the Sheriff was such de facto rests are not stated. Judging from the report, it might have rested on the ground that the Sheriff, being in full and peaceable possession of his office, his acts were entitled to be respected, as affecting third persons, until his title was disproved in a direct proceeding, or upon the other ground that he had color of title. It is difficult to see how his title could be regarded as colorable, the fact being that at the time of his appointment there was no such office as the Sheriff of that particular County to fill, and the act of the Governor was necessarily a nullity. If that which the law adjudges bad on its face is held to have the color of good, then the idea of color has no substantial meaning or value. Then a notoriously bad title is a foundation for a claim of de facto competency equally with one that is presumably good, or at worst disputable. In that case, color would be a mere fiction and not a fact, and the essential fact would be the possession had of the functions of the office. It will be hardly necessary, after the substantial reasons of the rule given by Bacofi, to have resort to a modern fiction for the purpose of founding the doctrine upon its principles. With time fictions tend to give way to the substantial truths they cover, but the reversing of this process is an unfavorable indication. When proof of color of title is resorted to for the purpose of converting a partial possession of the functions of an office into a possession recognizable as full and complete, it serves a substantial purpose and should be defined in a manner agreeable to the substantial office it is called upon to perform. If the idea of color is confined to titles that may be presumed good without violating any rule or principle of law, then a te?t is afforded that can yield substantial assistance in defining the grounds of the efficacy of official acts. It certainly would not fairly represent the decision of the case last adverted to to hold that it had determined that the title of the Sheriff had color of being good notwithstanding it appeared, as matter of law, that the appointment was wholly void.

Backman vs. Ruggles, 15 Mass., 180:

This case clearly involved a question of color of title. A Deputy Sheriff had been appointed, but had not qualified for the discharge of the duties of his office. The failure to qualify was matter of fact that demanded proof, and it is a clear case for third parties to rest on the presumption that all was rightly done that was requisite to perfect his right to exercise the office under his title.

Mason vs. Dillingham (15 Mass., 170,) occupies the same ground as that last stated.

Johnston vs. Wilson, 2 N. Hamp., 202: This case turned on the right of a defendant to justify in trespass under authority of an office claimed by him. Still, the case contains valuable references to the general doctrine as affecting third persons, and recognizes the rule applied in the two cases from the Massachusetts report just cited.

McBee vs. Hoke, 2 Speer, 138: The action of one claiming to be Coroner was here in question as affecting third persons. He had been duly appointed, but had failed to qualify. It appeared that he had held the office for the prior term under due appointment and qualification, and was entitled to hold over until his successor was duly appointed and qualified. The Court held that he was de facto Coroner and his official acts were binding on third parties. Judge O’Neall, who delivered the opinion of the Court, with his accustomed vigor and aptitude to lay hold of the substantial truth of cases, says: a“I take the broad ground that, being found in office, of which he had been the incumbent for many years, the plaintiff had thé right to regard him as Coroner, and his acts for them are good.” Again, he says: “One in office and transacting its duties is supposed to be rightfully there, and, so far as third persons are concerned, that presumption legalizes his acts.” Here are two consecutive statements, the first of which embodies the facts on which the efficacy of the official acts in question depended, and the last the rule applicable to such facts. In the first statement long-continued possession is spoken of,- but when the rule is stated importance is not attached to the duration of such possession. The Coroner, in that case, had been many years in the office, and that fact was important as tending to show that his possession was full and peaceable; but Judge O’Neall did not place the right of his official action to recognition on the ground of its duration. The reason of this is obvious. As the terms of office in this country are short, the rule would be of little value if only applicable to cases of long-continued possession, using this term in the sense in which it is used in connection" with the rule of law inferring presumptively title to property' from the fact of long-continued possession. The presumption of title to office as validating official acts does not arise out of the principle of the rule just referred to, but out of another and distinct rule, having its foundation not in the nature of evidence but in considerations of public policy and convenience. It is because the functions of the body corporate, like those of the physical body, ought always to be performed that validity is ascribed to the official acts of persons improperly in office.

Judge Evans, in Kotman vs. Ayer, (3 Strob., 92,) while approving the language just quoted from Judge O’Neall, thinks that it was not necessary to the case before him, and, therefore, to be regarded as obiter dictum,. It is true that the Court of which Judge O’Feall was a member might have put the decision in the case of MeBee vs. Hoke upon the ground that the Coroner, being duly appointed, was in under color of title, notwithstanding his failure to qualify. They did not, however, place the case on that ground, but distinctively on the proposition laid down by Judge O’Neall. When a Court lays down a 'proposition and places the decision of the case distinctly upon it, its acts should have authoritative weight, even if other grounds existed upon which the judgment of the Court might have been placed. It is impossible, at all events, to resist the conclusion that the ease under consideration developes not only the sound theory of the subject but a practicable rule suited to the emergencies calling it into action.

State vs. Hill, 2 Speer, 50: Here David R. Coleman claimed the office of Coroner, to which an appointment had been made in the name of Daniel Coleman. The whole Court concurring, Judge O’Neall places the conclusion that David R. was de faeto Coroner upon the decision in McBee vs. Hoke. The Court escaped the necessity of saying whether an appointment of Daniel was sufficient color to enable David R. to claim the office from the fact of full and peaceable possession, which brought the case within McBee vs. Hoke. This was a fortunate circumstance, for if the appointment of Daniel could give color of title to David R., it could equally well give it to any other person having the same surname.

Kotman vs. Ayer, 3 Strob., 92: The Justice in this case was duly appointed, but failed to qualify. The case was distinctly decided on the ground that he had color of title. Judge Evans, in the opinion of the Court, says, referring to the language of Judge O’Neall quoted above: “These propositions, though not absolutely necessary to be affirmed in that case, and which may be supposed to be mere dieta, I propose to show are supported by all the authorities.” He adds: “I do not undertake to say that in an organized state of society, under a regular government, the acts of an usurper, of one who obtrudes himself into an office without color of claim, would be binding; but where the electing or appointing power has conferred the office upon him, and he is in the actual discharge of its duties, without his title being questioned in any legal way, the community in which he lives have a right to regard him as a legal officer, andvhis acts as to them will be valid.” The statement very correctly places the authority to be ascribed to the official acts of one improperly in. office upon the right of the community, for its own convenience, to regard him as such. The case of an usurper referred to evidently carried in the mind of the Judge the idea of one attempting to force his will against that of the whole community. It is evident that while such a state of things should exist such' usurper could not get the benefit of the rule that exacts proof of full and peaceable possession. But should the community conclude that it was better for a short time to submit to the usurper than to encounter greater possible evils, there is no sound reason why they should not be permitted to do so. The rule in question looks solely to the convenience of the public and pays no regard to any supposed right of a mere intruder. The case here put, of having a good color of title, was the very case before the Court, and it is reasonable to conclude that Judge Evans intended to carry his statement of the rule only so far as was essential to the decision of the particular case. On the whole, this case does not appear to add to or detract from the strength of the decision in McBee vs. Hoke beyond indicating that the rule there broadly laid down admits of some limitations. In stating the rule as extending only to cases of full and peaceable possession, it would seem that such a limitation as that implied in Kotman vs. Ayer might be solely reached.

State vs. Heyward (1 N. & McC., 546,) follows Rex vs. Werbst, (3 Camp., 432,) holding that one not having legal title as a Justice could not administer an oath so that perjury would lie as for false swearing. To such cases the rule under examination is not considered as extending.

Taylor vs. Skine, 2 Barr, 566: The official acts of a Circuit Judge are called in question in this case. He had been appointed by the Governor, but subsequently the authority under which the appointment was made was held to be unconstitutional. The official acts of the Judge were held valid, but the case was put on the ground that he had color of title. It is probable, from the citations, that the Court intended to follow the statements of the rule in the New York cases, which appear to lay-stress on the possession of color of title. The New York cases do not appear to have intended an exhaustive statement of a rule, and were not such as to call for the consideration of the question whether, in the absence of color, possession of a certain character could be sufficient ground for validating official acts. Taylor vs. Skine would doubtless be more readily and satisfactorily explained upon the grounds laid down in McBee vs. Hoke, but that view of the case does not appear to have been presented or considered. Had such case been regarded as conflicting with the views presented in McBee vs. Hoke, it would no doubt have been particularly noticed in that' respect in the last named case. It will be observed that the cases do not call in question the correctness of the rules stated in Bacon’s Abridgment, already referred to, in their application to the chief executive, whilst a reasoning that runs through them has the same character with that given for the authority of a de facto King to issue a valid pardon. It is also noticeable that nowhere is the case considered of two persons each claiming adversely to the other partial possession of the same office, and each referring their right to a claim of title, and each showing something that may be regarded as color of title. It would follow then that the rule which has been stated is, at all events, applicable to the acts of the chief executive in their bearing on third persons, and that the effect of inconsistent claims as to the possession of color of title must be determined according to the principles involved without decisive aid from the adjudicated authorities. Applying, then, to the present case the test of full and peaceable possession, it becomes necessary to inquire whether Wade Hampton, at the time of issuing the pardon, had full and peaceable possession of all the necessary functions of the office of Governor. It will not be necessary to state all the facts and circumstances having a bearing on the question.

It is enough for the present purpose to know that Daniel H. Chamberlain claims to be Governor of this State, and is recognized as such by the Senate, while Wade Hampton holds the recognition of the House of Representatives. Without recognition of both bodies that comprise the General Assembly, no person can be said to have full and peaceable possession of the office of Governor, for the most important duties of the office relate to the share that the Governor is entitled to take in the exercise of the law-making power. A failure on the part of either branch of the Legislature to recognize the person claiming to hold the gubernatorial office places it out of his power to perform functions essential to the office of Governor, and without the performance of which the purposes of that office cannot be said to be fulfilled. This Court has already decided, in Wallace vs. Mackey, that the body presided over by Speaker Wallace is entitled to be recognized by the judicial authority as the House of Representatives. It is this House that recognizes Mr. Hampton. The body presided .over by Mr. Mackey, not being judicially recognizable as the House of Representatives, its recognition is of no legal importance. It follows that neither of the claimants can show that he has full and peaceable possession of the gubernatorial office, and the next question that arises is, which is entitled to recognition on a ground of possessing sufficient color of title? Both are in possession of some of the functions of the office, while there are functions that, at the present moment, neither can fully perform. It is clear that, it is not pertinent to ask which has a greater share of the proper powers belonging to the office in question, as that fact cannot become decisive between them in this case. One or the other has the better apparent or presumable right, and it is perfectly manifest that, from the nature and necessity of the case, as well as from the application of the principles and tests already discussed, resort must be had to the evidence of title exhibiting the nature of their respective claims of right to take the office in order to see which has the best apparent or presumptive right.

That claim to perform must, be preferred which arises from the performance of acts of public authority conformable to law and appropriate to perfect or present right to enjoy the office in question.

Two things are essential to perfect a present right of possession — election and installation. Election determines the right to succeed the existing incumbent at the time and in the manner prescribed by law, and installation establishes a present right to exercise the functions of the office.

The color of title by which the respective parties claim consists of certain public acts claimed to amount to an election and installation.

Looking into tbe evidence that discloses the fact of the performance of these acts, we are to say whether either of the persons claiming to possess the office of Governor shows a due performance of all acts of public authority essential to complete a present right to the office. Both cannot show that fact. One or the other must show a failure iu some or other of the essentials in this respect. If we find that either possesses clear evidences of that character, it is evident, if the principles already presented should govern this case, that he must be recognized as Governor defacto. Although, as has already been said, the issue joined does not impose upon us the necessity of determining the absolute de jure right of either, yet that color of title must be preferred that rests on the best grounds— on the appropriate acts of public authority that, under the law, complete a legal right of present possession. If, then, we find that either of the persons shows a title of that kind, the inquiry must stop, for that fact excludes the possibility of any right in the other. The question then arises, is it made to appear that Wade Hampton has been duly elected and installable as Governor? The person properly filling that office is made such by the Constitution, through conformity with its provisions. The Constitution, as will appear, assumes to provide all the means requisite to the accomplishment of this purpose, and gives the sanction of authority that accompanies and follows the exercise of such means. The provisions of the Constitution bearing on the subject are as follows:

“Article III, SECTION 2. The Governor shall be elected by the electors duly qualified to vote for members of the House of Representatives, and shall hold his office for two years, and until his successor shall be chosen and qualified, and shall be re-eligible. He shall be elected at the first general election held under the Constitution for members of the General Assembly, and at each general election thereafter, and installed during the first session of the said General Assembly after his election, on such days as shall be provided by law.”

Article III, SectioN 4: “The returns of every election of Governor shall be sealed up by the Managers of Election in their respective Counties and transmitted by mail to the seat of government, directed to the Secretary of State, who shall deliver them to the Speaker of the House of Representatives at the next ensuing session of the General Assembly, and a duplicate of said returns shall be filed with the Clerks of the Court of said Counties, whose duty it shall be to forward to the Secretary of State a certified copy thereof upon being notified that the returns previously forwarded by mail had not been received at his office. It shall be the duty of the Secretary of State, after the expiration of seven days from the day upon which the votes have been counted, if the returns thereof from any County have not been received, to notify the Clerk of the Court of said County and order a copy of the returns filed in his office to be forwarded forthwith. The Secretary of State shall deliver the returns to the Speaker of the House of Representatives at the next ensuing session of the General Assembly; and during the first week of the session, or as soon as the General Assembly shall have organized by the election of the presiding officers of the two houses, the Speaker shall open and publish them in the presence of both houses. The person having the highest number of votes shall be Governor; but if two or more shall be equal and highest in votes, the General Assembly shall, during the same session, in the House of Representatives, choose one of them viva voce. Contested elections for Governor shall 'be determined by the General Assembly in such manner as shall be prescribed by law.”

Aetiole VIII, Section 10: “In all elections held by the people under this Constitution the person or persons who shall receive the highest number of votes shall be declared elected.”

A general election was held on the 7th day of November last. Returns were made out by the Managers of Election in the several Counties in duplicate. One copy of these, returns was sealed and transmitted by mail to the Secretary of State and the other copy was filed in the offices of the Clerks of the Courts of the respective Counties. Thus far the law was fully complied with. It is in evidence that, according to these returns, Wade Hampton was elected Governor. It is to be observed that, by the Constitution, the returns constitute an open record from the time they are made out by the Managers of Election, and as such are required to be filed as open public records in the offices in which records intended for general public information are usually filed. The sealing of the duplicate copy delivered, intended for the Secretary of State, is not for the purpose of concealment of the facts set forth, but to insure against alteration while being transmitted to the hands of the Speaker of the House of Representatives. In this respect the Constitution of this State differs from that of the United States, attending which last no publication of the results of the voting of the Presidential election can take place until a proper body is constituted, consisting of the Senators and members of Congress, to witness the opening and publication thereof.

In this State, publications for all general purposes, including the forming of evidence on which to base judicial action, is accomplished, by the direct command of the Constitution itself, by the act of filing in a public office. The subsequent publication before the two houses of the General -Assembly is obviously for the purpose of acquainting them with the result of the election, so as to enable them to ascertain whether they are called upon to perform the only acts in reference to the gubernatorial election committed to them, viz., — making choice between two candidates having equally the highest number of votes, and determining any contest of the vote for Governor that may appear to be made in the manner prescribed by law. The effect of that clause of the Constitution that declares that “the person having the highest number of votes shall be Governor” is that if it appears by the record, consisting of the Managers’ returns, that any one person has received the highest number of votes, such person becomes ipso faoto Governor, unless a case contesting the truth of that record is presented in competent form. Has there been a competent contest of the vote for Governor? The language of the Constitution on this point is that “ contested elections for Governor shall be determined by the General Assembly in such manner as shall be prescribed by law.” — Article III, Section 4. A contest is a proceeding more or less formal, by which conflicting claims to an election are determined by some competent body. The mode of conducting such contest is prescribed by statute in the following terms, (Gen. Stat., 32, § 28): “That in case of a contest of the election of Governor, (if the General Assembly, by concurrent resolution, shall entertain the same,) the Senate and House of Representatives shall each, separately, proceed to hear and determine the facts in the case, so far as they deem necessary, and decide thereon who, according to the 19th Section of Article VIII of the Constitution, is entitled to be declared elected. . -If the two branches of the General Assembly come to the same decision, they shall, by - concurrent resolution, declare who is duly elected and entitled to enter upon and exercise the office of Governor, and such person shall thereupon, upon taking the oath of office prescribed in the Constitution, be inducted into office.” The statute then provides for an election in case the houses cannot agree. A contest presupposes parties opposed in interest, a subject of controversy and notice thereof brought to a body capable of determining it. A contest of the vote for Governor must be recognized according to the terms of the statute by a concurrent vote of the two houses, otherwise it cannot exist as such. The Constitution in terms having subjected such contest to the rules of proceeding prescribed by law, and a law following that constitutional authority having prescribed, as a condition precedent to its legal existence, that a concurrent resolution should be adopted recognizing the fact of contest, it follows that no contest can be deemed to exist unless such a concurrent resolution was adopted. No such concurrent resolution appears ever to have been passed. The Journals of the Senate and House of Representatives show no such resolution, and none is pretended. No concurrent action of any kind took place between the Senate and House of Representatives. It is not necessary to look into the proceedings that took place between the Senate and the body popularly called the Mackey House, as the latter body has no legal character. It may be remarked, however, that it is not pretended that any concurrent resolution of that kind was ever adopted by those bodies.

The foregoing conclusively settles that no case for disputing the truth of the Managers’ returns has been legally or constitutionally created; but it may be observed that it does not appear that there was before either branch of the General Assembly any notice whatever of any such contest either forwarded with the Managers’ returns or brought in by memorial or otherwise, or that parties to any such contest were represented, or that any action was ever taken by either house separately to determine the facts of any such contest. It therefore follows that the declaration of the Constitution, “ the person having the highest number of votes shall be Governor,” was entitled to the full force intended for it. It remains to consider what is that force. This provision is to be considered with the general legal proposition that the election and not the mode of subsequent authentication constitutes the essence of de jure right.—Johnston vs. Wilson, 2 N. Hamp., 202.

The Managers’ returns constituted the primary evidence of the fact of election, made such by the Constitution itself, and the declaration that the person having the highest number of votes shall be Governor must be referred to the constitutional record evidencing the facts. If the record is disputed in a competent mode, then the declaration of the Constitution is displaced, and the determination of the contest disputing such record and the declaration of the General Assembly, based on such determination, become the efficient means of designating the person to be Governor.

In the present case the .evidence created by the Constitution was not disputed by any competent contest and remained final and conclusive both upon the Legislature and the Courts. The Constitution does not require, in cases of this kind, that any declaration whatever shall be made as a condition precedent to the vesting of right to the office of Governor. It is contended, however, that transmitting the sealed Managers’ returns to the Speaker of the House of Representatives and the opening and publication of returns in the presence of the two houses are conditions precedent to the force of this declaration of the Constitution becoming effective by way of constituting a Governor. Are they made such by the express terms of the Constitution or by any necessary or reasonable implication?

The strongest argument that can be drawn from the text of the Constitution in support of the view is based on the fact that the transmission of the returns to the Speaker of the House of Representatives is spoken of first in order; then the opening and publishing of the returns, and then follows the declaration in question. The proceedings in the General Assembly are spoken of in one sentence. Then follows, in a separate sentence, the declaration. There is no grammatical evidence of an attempt to connect them. The argument from position is all that can be drawn, and that is, at least, merely inferential, and the weakest kind of argument that can be applied to the ascertainment of the meaning of language. Ordinarily, statutes imposing duties on public officers endeavor to present their duties in a successive order, approaching, as nearly as possible, to that in which, in point of time, the events will arise to which they relate. This is done as a matter of convenience. It is not to be assumed that in statutes of this class the various provisions introduced are so placed as to evidence in the clearest manner their legal dependence or independence of each other; for that mode of grouping is not customary and is unlikely to become so until Legislatures are wholly filled by lawyers and logicians. The reason of a statute is to be arrived at by less formal means. There is no evidence on the face of the Constitution of any express intent to make the force and effect of its declarations dependent upon the performance by the Legislature of the duties cast upon it. It is equally clear that it is not a necessary implication, for the antecedent acts are not essential to the efficacy of the declaration. It is only that which is necessary and essential that is drawn into the text of a statute on the ground of necessary implication. This will more fully appear when the argument in favor of allowing the view contended for as a reasonable implication from the text is considered.

The general object of a statute must be considered in order to ascertain what is or is not a reasonable inference from its terms. The object of the Constitution was to establish a permanent form of government. As essential to that' object, it sought to distribute the great powers of government, — legislative, executive and judicial, — between three co-ordinate branches, each as independent of the other two as prudence would permit. While each was capable, in the nature of government, of acting more or less upon the others, still it was obvious that the existence of one or the other of these great and necessary features of the government should not become dependent upon the performance by another of these bodies of mere acts of form and ceremony. If such should be permitted, one might destroy the others and break up the balance and equilibrium of the powers of government and subvert the essential objects of the Constitution. This principle is so plain that it needs no elucidation.

It is only necessary to bring the present case within the principle just stated to dispose of the construction contended for. Where there is a choice on the face of the returns, and no contest of the truth appearing on their face, the Legislature has nothing but a formal duty to perform. That its duty is not of substance appears by the fact that it cannot affect the result if duly performed; and its only substantial significance would arise from such a construction as would allow a failure in the performance of such duty to defeat the object of the Constitution, viz., the succession of the person chosen by the electors to the office to which he had been elected. The act of opening and publishing the returns is clearly for the purpose of giving them information enabling them to see whether they have any duty to perform in the premises. For all other purposes publication took place at the filing of the Managers’ returns with the Clerk of the Court. If there had been no choice on the face of the returns, then the duty would have been substantial in its nature, as we have already seen. So, had there been in point of fact notice of a contest, the duties of the two houses might have been substantial had they chosen to recognize the existence of such contest by a concurrent resolution. The failure to perform their general duty left the question in the simple form in which it stood on the face of the returns.- It therefore appears that the only substantial function possessed by the General Assembly consisted in disputing the returns, and failing to exercise this function had only the effect to leave the returns in full constitutional force and to leave the Legislature in the position of neglecting a duty formal in its nature merely, which, upon the construction contended for, would effect a destruction of the existence of a rightful claim to the executive office. That such a construction could have been approved by legal minds imbued with the principles of constitutional law can only be accounted for by the force of party interests for a time obscuring just views of fundamental principles. One of the most important principles of the foundation of constitutional government, and essential to its stability, is this: That unconditional declarations of the supreme law, capable in their nature of taking force without the intervention of any act — either legislative, executive or judicial — derive full efficacy from the Constitution itself and become ipso fado executed. This principle, now fully understood and applied by the Courts, is decisive in its application to the matters just considered, while applying with equal force to that which is to follow.

Thus far we have considered which of the parties claiming to be in the office of Governor possesses reasonable color of title, so far as it regards the claim to have been elected to that office, and we have found that' the one whose pardon is the subject of the present discussion possesses that advantage. It remains -to consider whether the circumstances attending the accession of each to supposed possession of the office afford in themselves color of title that cannot be questioned.

It is not necessary to consider what might have been the effect if Mr. Chamberlain had been inducted into the office of Governor by the full consent and co-operation of both bodies of the Legislature, for such was not the case. Had it been, it is unlikely that two distinct persons would be found at the same time each claimiug to have actual possession'of the office.

Recognition by the Legislature would have practically placed the recognized incumbent in undisputed possession and left it to the other contestant to find means of asserting a claim to the office de jure. The recognition of Mr. Chamberlain by the Senate alone, without the House of Representatives, was without effect for any purpose; nor did the Senate, uniting with a body of persons possessing no legal competency, confer any color of title on him as claiming incumbency through such an act.

Mr. Chamberlain in assuming to take the office must be regarded as owing such possession he may have to an act of unlawful usurpation. This act' was rendered possible by the use of unlawful military force in controlling the organization of the legislative body, and carried out, notwithstanding the decision of this Court divested the body resulting from such forced organization and styling itself the House of Representatives of all right to recognition by that title in the Courts. It was upon the authority of such •illegal body, and after its character was ascertained by this Court, that Mr. Chamberlain attempted to rest his right to take possession of the gubernatorial office upon a claim of having been elected Governor for two years at the last general election.

An act thus clearly' violative of the Constitution as interpreted by this Court, and accomplished in defiance of the right of this Court to give a final construction to the Constitution, can have no effect to confer color of title upon an alleged incumbent.

But it is said that, admitting that the attempt of Mr. Chamberlain to possess himself of the office for the new term proved abortive, still he must be regarded as holding over under his antecedent term, under the constitutional right to hold over until his successor was chosen and duly qualified.

There are two answers to this proposition. The first is that he had voluntarily abandoned the office by his former title when he assumed to hold by a new title and tenure; and that his successor having duly qualified by taking the oath of office the constitutional right ceased and could no longer afford color of right to its possessor.

Counsel have ably and elaborately argued from the principles applicable to leases and from grants from the crown to show that the acceptance of a new title and tenure is a virtual relinquishment of any unexpired title or tenure derived from the same source subsisting at the time of taking the new title and tenure.

Even if it were conceded that the principle contended for in this respect were not fully illustrated in the class of cases adverted to in the argument, it is free from doubt that they are applicable in the present case.

The whole object of the Constitution in directing that certain public officers should continue to discharge the duties of their offices after the expiration of their legal terms and until their successors should be duly chosen and qualified was to provide for the discharge of the public functions annexed to such offices until there should be found to assume their exercise persons possessing rightful competency. If a third party had claimed to have been elected and qualified to take the office, and the outgoing Governor had seen fit to recognize his right of succession, and permitted him to assume the functions of Governor, it will not be pretended that the former incumbency could be resumed under any circumstances, even though it should be found that such successor was not elected or qualified according to law. The effect of allowing succession, though in the same person, is the same, because the same reason underlies it. To hold that one who, at the termination of his office as chief magistrate, attempts to perpetuate his incumbency by a clear act of unlawful usurpation, and, when driven from that claim, may fall back upon a provision of the Constitution designed wholly and exclusively to facilitate the transmission of the chief magistracy from one lawful successor to another, contradicts all legal reason, and would be equivalent to surrendering the highest office in the government to become a prey for the crafty and unscrupulous. It is unnecessary to elucidate this proposition, novel as it is, for it is at once condemned by that right sense of justice that lies at the foundation of law, and has no support in any known principle or precedent.

Not only did the outgoing Governor evince an intention to relinquish the office as previously held by him under authority of a former election and qualification, but in point of fact he lost that full and peaceable possession that he previously had the moment he assumed to take it at the hands of an unlawful authority, by losing at the same moment recognition by the House of Representatives requisite to complete possession, and from that moment the fact of possession passed into legal doubt and dispute. It is the settling of that dispute that constitutes the matter of especial interest in the present case, and, as we have already seen, the decisions of the Courts bearing on the question of de facto holding afford certain rules and principles upon which that disputed question of possession must be determined.

On the other hand, the facts of the Governor elect having been duly elected and qualified and having taken the oath of office, whereby he became qualified to succeed to the office, are circumstances that afford indisputable color to his claim, because resting on proof that would be conclusive, if the direct question of his legal right to the office were now presented for decision.

It is contended that the clause of the Constitution providing that the Governor elect should be installed on a day to be fixed by law during the first session of the Legislature precludes his being duly installed on any other day than on one fixed in the manner prescribed. It appears that no day has been fixed for that purpose by law since the adoption of the Constitution. ,

The only object which the Constitution had in view was to make it imperative that the installation of the Governor should not be postponed beyond the end of the first session of the Legislature assembled after the election. Installation implies an act to be performed by the outgoing Governor and one to be performed by the Legislature. That to be performed by the outgoing Governor consists in placing in the hands of the incoming Governor the public property and insignia attached to the office of Governor; that to be performed by the Legislature consists in the recognition of the new Governor by acting with him in the conduct of public business. The fact that the Legislature failed in its duty in this respect did not absolve the outgoing Governor from performing that which was incumbent on him. He was, during the first session of the Legislature, under a conditional obligation to surrender the property and insignia of the office to his successor. That condition had reference solely to a day during that session to be fixed by law for that purpose. The moment that session was at an end the duty became absolute, and he was bound without delay to put his successor in possession of whatever was essential to complete performance of the functions of his office. If it were otherwise, it would happen that, as the first session of the Legislature is ended, no authority exists to fix a day, and the gubernatorial authority has lapsed for the constitutional term of two years, or, at least, is held by a mere locum tenens. The correctness of this view is so clearly apparent that further elaboration is altogether unnecessary. It is clear that Wade Hampton had full right to claim possession of the office of Governor at the time he assumed to take such possession, and the color by which it is claimed that his actual exercise of authority ought to be respected is perfect.

It is hardly necessary to note much that has been said during the recent period of undue and unhealthy political excitement in regard to the powerlessness of the Courts to determine controversies of this class. It is clear that no power can be rightfully exercised unless recognized by the Courts, whether that power is claimed to be lodged in the hands of an Executive or of 'a Legislature.

The Courts are created to defend the Constitution as well as the law's, and this defense must be made, as against all usurpation of public authority whatever not permitted by the Constitution and laws, the duty of the citizen, under the Constitution and the laws, as measured out by the Courts. If the Courts fail to perform such duties, the fault is not in the system but in the Judges who occupy the bench, and they are capable of being removed by constitutional means. When the Courts cease to speak the law, the remedy is with the Legislature. While the Courts are enabled to perform their functions to the'State and to the people, the only legitimate use that can be made of physical force is to execute their mandates. If the Courts should ever assume to deprive the co-ordinate branches of the government of their independence or rightful authority, the remedy would be clearly at hand. If, on the other hand, the Courts are stripped of their actual authority by popular violence, then it is competent for the law of force to supplant that of reason and martial authority to be installed as the last resort to maintain the government. Fortunately no such contingencies have arisen until this time. The proceedings of the Courts have been orderly and effectual, and both the rights of the people, as established by the Constitution and laws, and the rights of those exercising public authority have been respected. Under such circumstances as might have been anticipated, a resort to irregular and unsanctioned forms of force has proven abortive to defeat or prevent the irresistible force that lies at the basis of a government of law resting on right reason, which, while all-pervading and diffusive in its influence, lies in safety in its citadel and stronghold, beyond the reach of physical force, so long as the people love and trust to the principles of justice.

The pardon of Wade Hampton is entitled to be respected as the official act of the Governor of this State.