Could a South Carolina mayor also serve as a magistrate?

Plain-English summary

A senator asked whether appointing a sitting mayor as a magistrate would create a dual-office problem. The Assistant AG quoted Article XVII, Section IA of the South Carolina Constitution, which barred a person from holding two offices of honor or profit at once, subject to specified exceptions. He explained that the prohibition applied when both positions were public offices exercising some sovereign power.

The office had previously concluded that a mayor was an office for this purpose and had separately reached the same conclusion for magistrates. It therefore answered that simultaneous service as mayor and magistrate would contravene the constitutional prohibition. The letter did not analyze a particular appointment or a resignation sequence and was an informal opinion.

Currency note

This opinion was issued in 1997. 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.

Common questions

Q: Could a current mayor take a magistrate position while remaining mayor? A: The AG said no: holding both offices simultaneously would violate the dual-office prohibition.

Q: Why did the rule cover these two positions?
A: The office had previously treated both mayor and magistrate as public offices for dual-office purposes.

Q: Did the opinion identify an exception for a mayor who also serves as magistrate? A: No. It listed constitutional exceptions for other roles, then concluded that concurrent mayor and magistrate service was prohibited.

Background and statutory framework

The letter quoted Article XVII, Section IA and used Sanders v. Belue and State v. Crenshaw to explain the public-office test. It then relied on prior AG opinions separately classifying mayors and magistrates as officeholders.

Citations and references

Constitution discussed: Article XVII, Section IA. Cases cited: Sanders v. Belue; State v. Crenshaw.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-18-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/97sept18odell.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

September 18, 1997

The Honorable William H. O'Dell
Senator, District No. 4
Box 540
Ware Shoals, South Carolina 29692

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RE:

Informal Opinion

Dear Senator O'Dell:
Attorney General Condon has forwarded your recent opinion request to me for reply. You have asked whether a dual office holding situation would arise if an individual currently serving as mayor was appointed to serve as a magistrate. Article XVII, Section IA of the State Constitution provides that "no person may hold two offices of honor or profit at the same time ... ," with exceptions specified for an officer in the militia, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must hold two public 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). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its duties or salary, or require qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). This Office has concluded on numerous occasions that one who serves as a mayor of a municipality would hold an office for dual office holding purposes. Ops. Any. Gen. dated April 9, 1997, November 2, 1994, July 28, 1993, February 25, 1992 and September 21, 1989.

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REMBERT

c. DENNIS B UILDING

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.A:::Za PO..JY. rVf'~ ~

POST OFFICE Bo x

11549

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COLUMBIA. S.C. 29211-1549

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TELEPHON E:

803· 734-3970

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FACSIMILE: 803-253-6283

The Honorable William H. O'Dell
Page 2
September 18, 1997
This Office has also determined on numerous occasions that an individual who serves as a magistrate would hold an office for dual office holding purposes. Ops. Any. Gen. dated July 8, 1991, June 19, 1987, September 23, 1980 and February 20, 1980.

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Based on the foregoing, if an individual serves simultaneously as Mayor and Magistrate, the dual office holding prohibitions of the State Constitution would be contravened. This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain Very truly yours,

7-L IA. ~o~

Paul M. Koch
Assistant Attorney General