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1999 South Carolina Attorney General Reports and Opinions 1 (1999)

handle is hein.sag/sagsc0083 and id is 1 raw text is: The State of South Carolina OFFICE OF THE ATTORNEY GENERAL CHARLES M. CONDON ATTORNEY GENERAL January 7, 1999 The Honorable John Graham Altman, III Member, House of Representatives 306-D Blatt Building Columbia, South Carolina 29211 Re: Informal Opinion Dear Representative Altman: Thank you for your letter of December 3, 1998, requesting an advisory opinion addressing the meaning of the term office of honor, profit or trust. Attorney General Condon has asked me to respond. As you know, the term about which you have inquired is found in Article XVII, Section 1A of the South Carolina Constitution, which is commonly referred to as the dual office holding provision. This provision states that no person may hold two offices of honor or profit at the same time ..., with exceptions specified for an officer in the militia, a member of a lawfully and regularly organized fire department, constable, or a notary public. As concluded by Attorney General Daniel McLeod in an opinion dated April 26, 1977, [to determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula. (Emphasis added.) The South Carolina Supreme Court, though, has held that for this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). 'One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing and not occasional or intermittent, is a public officer. Conversely, one who merely performs the duties required of him by persons employing him under an express contract or otherwise, though such persons be themselves public officers, and though the employment be in or about a public work or business, is a mere employee. Id., 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes, or other authority, establish RHMBERT C. DINms BUILDING - POST OFFIC- Box 11549 Col Sx,C 29211-1549 --TEPPONE: 80)3-734-3970 - FACSIMILE. 803-253-6283 57

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