How long may a governor-appointed circuit solicitor serve after a vacancy?

Plain-English summary

The Attorney General concluded that a Governor-appointed circuit solicitor would serve only until the next general election, which for the contemplated 2003 vacancy was November 2004. The Governor would fill the vacancy with the advice and consent of the Senate, but the appointee would not complete the entire remaining four-year term. The office relied on State ex rel. Gasque v. Singleton, which interpreted the substantially similar vacancy statutes and the constitutional status of the elected solicitor's office.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Governor and Senate

The opinion read § 1-7-390 as assigning the appointment to the Governor with Senate advice and consent. It read that appointment together with rules for executive offices and the election requirement.

Solicitors and voters

The cited Supreme Court decision rejected an appointment extending beyond the first general election following the vacancy in an elective solicitor's office. The opinion did not treat the special-election provision as extending the appointment through the unexpired term.

Common questions

Would the appointee serve the entire unexpired term?
No. The opinion said service would end at the next general election.

What election did the AG identify for this vacancy?
The November 2004 general election.

Background and statutory framework

The sitting solicitor asked about retiring before his term ended. The opinion harmonized the solicitor-vacancy statute with the general special-election and executive-appointment provisions and the state constitution's elected solicitor office.

Citations and references

The opinion discussed S.C. Code Ann. §§ 1-7-390, 7-13-190, 1-1-110, and 1-3-220(1); South Carolina Constitution Article V, § 24; and State ex rel. Gasque v. Singleton.

Official title

Asking to interpret South Carolina code sections as it pertains to a vacancy in the Solicitor’s office.

Requester

The Honorable Walter M. Bailey, Jr., Solicitor, First Judicial Circuit

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-22-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03aug-22-Bailey.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY Mcl'v1AsTER
ATTORNEY GENERAL

August 22, 2003

The Honorable Walter M. Bailey, Jr.
Solicitor, First Judicial Circuit
Post Office Box 1525
Orangeburg, South Carolina 29116
Dear Solicitor Bailey:
You state that you "will have enough time in the Solicitors and Judges Retirement System to receive full retirement prior to the end of[your] current term." However, you do not "want to put three counties to the expense of a special election." You further note by way of background that Section 7-13-190 provides for both a primary and special election when vacancies occur in certain offices·. Section 1- 7-390 provides when the Solicitor's Office is vacated, the position is filled by the Governor by and with the consent of the Senate. This statute is silent as to whether the Governor's appointee would complete the entire term or be subject to the special election provision of Section 7-13-190. I have discussed this situation with Marcie Andino, Executive Director of the Election Commission. It is Ms. Andino' s opinion that Section 7-13-190 would not apply and since there is no provision for a special election in Section 1-7-3 90, the Governor's appointee would complete the balance of the four year term. You thus seek an opinion from this Office "interpreting these code sections as it pertains to a vacancy in the Solicitor's Office. Law I Analysis S.C. Code Ann. Sec. 1-7-390 provides as follows:
[i]n case any circuit solicitor shall cease to reside in his circuit, his office shall become vacant. In case any vacancy shall occur in such office by death, resignation or otherwise, the vacancy created shall be filled by the Governor, by and with the advice and consent of the Senate. The judge residing in the circuit of the solicitor, whose office shall thus become vacant, shall certify such vacancy to the Governor.

~~~Uj.DfNG • POST OFFICE Box 11549 • COLUMBIA, S.C. 29211 - 1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

I
!

l

The Honorable Walter M. Bailey, Jr.
Page 2
August 22, 2003
Section 7-13- l 90(A) further provides for the holding of special elections, stating that
"[e]xcept as otherwise provided in this code as to specific offices, whenever a vacancy occurs by
reason of death, resignation, or removal, and the vacancy in office is one which is filled by a special
election to complete the term of office, this section applies."
The office of Solicitor is a constitutional office pursuant to Article V, § 24 of the South
Carolina Constitution. Section 1-1-110 of the Code deems the Solicitor as part of the executive
department of the State providing that
[t]he executive department of this State is hereby declared to consist of the following
officers, that is to say: the Governor and Lieutenant Governor, the Secretary of State,
the State Treasurer, the Attorney General and the solicitors, the Adjutant General, the
Comptroller General, the State Superintendent of Education, the Commissioner of
Agriculture and the Director of the Department of Insurance.
Section 1-3-220(1) specifies that the Governor is to make an appointment"to fill any vacancy
in an office of the executive department as defined in Section 1-1-110 occurring during a recess of
the General Assembly." Such subsection further provides that "[t]he term of such appointment shall
be until the vacancy be filled by a general election or by the General Assembly in the manner
provided by law."
It is evident from the foregoing statutes that the Governor fills the vacancy which may occur

in the Office of Solicitor. As you indicate, the crucial question is whether such appointment by the
Governor is for the remainder of the term.
This precise question was addressed by our Supreme Court in State ex rel. Gasque v.
Singleton, 100 S.C. 465, 84 S.E. 989 (1915). There, the Court reviewed the foregoing statutes which
have, for all practical purposes, remained the same since the Singleton case was decided. Included
in the Court's analysis was the predecessor to § 1-7-390 as well as §§ 1-1-110 and 1-1-120. The
Court concluded that the existing statutes only authorized the Governor's appointee as Solicitor to
serve until the next general election. In the Court's view,
These statutory provisions must be construed together, and, if possible, such
a construction should be placed upon them as will give force and effect to all. The
solicitor is an officer of the executive department, and therefore the provisions of
section 695 are applicable to him. Neither section 694 nor section 695 prescribes the
length of time for which the appointment is to be made by the Governor. This,
however, is fixed by section 695, which limits the duration of the appointment as to
solicitors until the vacancy can be filled by a general election, as it is an elective
office. When the foregoing sections are construed together, it is manifest that the
Legislature did not intend to confer upon the Governor power to appoint a solicitor
for such a length of time as would extend beyond the first general election held after

The Honorable Walter M. Bailey, Jr.
Page 3
August 22, 2003
the vacancy occurred. This is the only construction by which all the sections can be
harmonized.
But even if it was intended by the statutes to empower the Governor to
appoint a solicitor for the full unexpired term, when a vacancy arose, such an
enactment would be void. When an office is made elective by the Constitution and
a vacancy arises, the Governor cannot fill it by appointment, except temporarily,
unless the Constitution gives him such power. And there is no such provision in the
Constitution as to the office of solicitor. Ifthe Legislature had attempted to empower
the Governor to appoint for a term extending beyond the first general election after
the office became vacant, such a statute would contravene the provisions of the
Constitution in two respects. It would be an attempt to make an office appointive,
which the Constitution had declared to be elective; and it would be an attempt to
change the term of office, as the appointment for the full unexpired term of office
would necessarily be less than four years; yet, if the vacancy was filled by a general
election, the term of office would be for four years. It would be against the letter as
well as the spirit of the Constitution to hold that the Governor's appointment to an
elective office should continue of force after the vacancy had been filled in the
manner contemplated by the Constitution, to wit, by an election expressing the choice
of the qualified electors of the circuit. The propositions herein announced are fully
sustained by the case of Smith v. McConnell, 44 S.C. 491, 22 S.E. 721, and the cases
therein mentioned.
84 S.E. at 990.
As indicated, the statutes in question relating to Solicitors remain basically the same as when
Singleton was decided. 1
Accordingly, it is our opinion that the person appointed by the Governor to fill the Office of
Solicitor which you presently hold would serve until the next general election. In this instance, the
next general election would be November, 2004.

Robert D. Cook
Assistant Deputy Attorney General
RDC/an

1

Section 7-13-190 was amended by Act No. 3 of2002. However, it does not appear that
the amendment is pertinent to this question.