State ex rel. Barker v. Bowen

Citation8 S.C. 382
PartiesSTATE, ex rel. BARKER, v. BOWEN.
Decision Date26 December 1876
CourtUnited States State Supreme Court of South Carolina

An action in the nature of quo warranto to determine the title to the office of electors of President and Vice President of the United States, brought in a State Court, is not removable to the Circuit Court of the United States under the Act of Congress of March 3d, 1875, upon the ground that the " matters in dispute therein arise under the Constitution and laws of the United States."

An action was brought in the Supreme Court of the State entitled " The State, ex relatione Theodore G. Barker Samuel McGowan, J. I. Ingram, Robert Aldrich, John W Harrington, William Wallace and John B. Erwin, vs. C. C. Bowen, Timothy Hurley, John Winsmith, Thomas B Johnston, William B. Nash, Wilson Cooke and William F Myers," in which the complaint or suggestion is as follows:

" Be it remembered that Theodore G. Barker, Samuel McGowan, J. I. Ingram, Robert Aldrich, John W. Harrington, William Wallace and John B. Erwin come here the 2d December, A. D. 1876, before the honorable the Supreme Court of the State of South Carolina, and, by leave of said Court first had and obtained, according to the form of the statute in that case made and provided, give the Court here to understand and be informed that on the 7th November, 1876, a general election was duly held in the said State for electors for President and Vice President of the United States; that at said election the above named relators, Theodore G. Barker, Samuel McGowan, J. I. Ingram, Robert Aldrich, John W. Harrington, William Wallace and John B. Erwin, were duly and legally elected by general ticket, (they being as many in number as the said Stte is entitled to appoint,) and had the highest number of votes at said election.

That at said election the votes for the opposing candidates for said offices, respectively, were thereupon duly counted by the several Boards of Managers of the said election, and by them duly returned in their respective Counties to the Boards of Canvassers for their several Counties, and, the several Boards of County Canvassers having made their statements of the votes cast, the same, together with all the papers appertaining to said election, were by the Boards of County Canvassers duly transmitted to the Board of State Canvassers of the said State.

That the said Board of State Canvassers met at the office of the Secretary of State on or before the 10th day of November next after such election and proceeded to canvass the votes given for the electors of President and Vice President, and made a false and fraudulent statement of all the votes, as appears by a comparison of the statements of the County Canvassers with the statements and returns of the precinct Managers in the several Counties, and falsely determined and certified as the persons elected as Electors of the State of South Carolina, of President and Vice President, the following named persons: Christopher C. Bowen, John Winsmith, Timothy Hurley, Thomas B. Johnston, William B. Nash, Wilson Cooke and William F. Myers.

And, thereupon, the Secretary of State caused a copy, under the seal of his office, of the certified determination of the Board of State Canvassers to be delivered to each of the persons therein declared to be elected.

And the said Christopher C. Bowen, John Winsmith, Timothy Hurley, Thomas B. Johnston, William B. Nash, Wilson Cooke and William F. Myers, not being duly and lawfully elected, and not having received the highest number of votes cast at such election, received said certified determination so delivered, and under and by virtue thereof, as evidence of title to the said offices and functions of State electors of President and Vice President of the United States, claim the right as such to meet and assemble at the capital on the first Wednesday in December next, being the next after their election, and then and there threaten and claim to vote by ballot for President and Vice President.

And the said relators further give the Court to understand and be informed that if a true and correct statement of all the votes cast at said election had been made by the Board of State Canvassers, by comparing the statement of the County Canvassers with the statements and returns of the precinct Managers in the several Counties, and if the said Board had justly and truly determined and certified the persons so elected as electors, your relators above named would have been found to be elected, and to have received the highest number of votes cast for electors at said election, and would have been so determined and certified, and would have been entitled to receive a copy of the said certified determination, under the seal of his office, from the Secretary of State, and would have been entitled to assemble, according to law, at the State capital, on Wednesday next, and then and there to cast the votes of the State of South Carolina for President and Vice President of the United States of America.

Whereupon the said relators pray the consideration of the Court here in the premises, and that due process of law may be awarded against the said Christopher C. Bowen, John Winsmith, Timothy Hurley, Thomas B. Johnston, William B. Nash, Wilson Cooke and William F. Myers, in this behalf, and to make them answer to the State, and show by what warrant or authority they claim to have, use and enjoy the offices, liberties, privileges and franchises aforesaid."

And this was a petition by the defendants to the Supreme Court asking that said action be transferred to the United States Circuit Court for the District of South Carolina.

The grounds upon which the application to transfer were founded are stated in the opinion of the Court.

Corbin, Denny, Settle , for petitioners.

Conner, Gordon , contra.

OPINION

WILLARD A. J.

The defendant, C. C. Bowen, and his associates, ask by petition a transfer of this case to the United States Circuit Court for the District of South Carolina. They allege that this is a civil action, involving the title and emoluments of the office of electors of South Carolina for President and Vice President of the United States, and that the pay and emoluments attached to such office by the laws of the State of South Carolina exceed in value $400, and, further, " that said matters in dispute therein arise under the Constitution and laws of the United States."

The authority claimed for removing the cause is that of the Act of Congress of March 3d, 1875.-Stat. 1874 and 1875, 472. Its requirement is " that any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State Court when the matter in dispute exceeds, exclusive of costs, the sum or value of $400, and arising under the Constitution and laws of the United States," may be removed into the Circuit Court of the United States for the proper District by any party actually interested either as plaintiff or defendant.

We will consider whether this is a case arising under the Constitution and laws of the United States.

This is an action in the nature of a writ of quo warranto , brought originally in this Court under the authority of Section 4, Article IV, of the Constitution of this State, which is as follows: " The Supreme Court shall have appellate jurisdiction only in cases of chancery, and shall constitute a Court for the correction of errors at law, under such regulations as the General Assembly may by law prescribe: Provided , The said Court shall always have power to issue writs of injunction, mandamus, quo warranto, habeas corpus , and such other original and remedial writs as may be necessary to give it a general supervisory control over all other Courts in this State."

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