Blake v. Walker
| Decision Date | 27 October 1885 |
| Citation | 23 S.C. 517 |
| Parties | BLAKE v. WALKER. |
| Court | South Carolina Supreme Court |
1. The City Council of Spartanburg, as a municipal corporation, has no powers except such as are conferred by its charter in express terms, or such as are necessary to carry out the powers granted, excepting (if, indeed, it be an exception) the inherent power in all elective bodies of judging of the qualification and election of their members.
2. Under the local option law (Gen. Stat. , § 1753) all elections are to be conducted according to the law governing municipal elections in the town or city where held and under the charter of the city of Spartanburg (17 Stat. , 435, § 5), the managers are to count the votes and declare the election, such managers to be appointed by the council " to conduct the election." Therefore, the declaration by the managers of the result of a local option election could not be reviewed by the City Council.
3. The act of 1868 (14 Stat. , 108), authorizing an ultimate decision of municipal elections by boards of aldermen, cannot apply here, as there was no contest before the managers; and that act having been dropped from the General Statutes of 1872, is not now law.
4. The council here were required to act upon the declaration of the result by the managers, and not upon the determination by the council of how the majority voted.
5. The conduct of an election does not literally include a declaration of the result, but the word " conducted" in the local option law had a wider meaning and in its application to the city of Spartanburg was intended to embrace also a declaration of the result.
Before WALLACE, J., Spartanburg, December, 1884.
The appeal in this case was from the following interlocutory order of injunction:
The complaint in this action alleges, in substance, that under an act approved February 9, 1882, and entitled " An act to provide a local option law for the incorporated cities towns, and villages of this State," a number of citizens of the city of Spartanburg, equal to one-third of the number of votes cast in the next preceding municipal election in that city, signed a petition and delivered it to the City Council, in which they asked that the question of " " license" or " no license" should be submitted to an election by the voters of the city. In accordance with the prayer of the petition, the election was ordered to be held on November 29, ensuing, and three managers were appointed by the City Council to conduct it. The election was held at the time appointed, and upon the closing of the polls the managers proceeded immediately to count the votes. They found in the ballot-box and counted 336 for " no license" and 334 for " license," and declared the election in favor of " no license" accordingly. They notified the mayor of this result and adjourned.
The complaint further alleges that notwithstanding these facts, the mayor and aldermen proceeded on December 5, next, after November 29, 1884, on which day the said election was held, to pass an ordinance for issuing licenses for the sale of spirituous and malt liquors for the year 1885, and that under said ordinance did issue licenses to several persons to sell liquor in the city. The object of the complaint is to obtain a judgment of the court, that the City Council be enjoined from granting further licenses, and that the persons to whom licenses have been granted be restrained from selling liquor under them.
A motion was made by plaintiffs' counsel for an order requiring the defendants to show cause why they should not be enjoined from proceeding to grant licenses under the ordinance above referred to. The motion was granted, and the defendants made return on the day fixed in the order, viz., December 29, last past. They say in substance, that after the election ordered by them on the question of " license" or " no license" had been held, and the result had been certified to them by the managers, a petition signed by certain electors of the city and sworn to was presented to the council, in which it was alleged that at the said election certain persons named in the petition, who were not qualified voters of the city, had been allowed to vote; and, therefore, the petitioners prayed that the City Council would investigate the election. In pursuance of the prayer of this petition, the council heard evidence touching the allegations contained in the paper, and after full hearing adjudged and determined that a majority of the voters of the city had voted in favor of " " license." That the City Council then passed the ordinance providing for granting licenses, and did grant licenses to sell liquor to their co-defendants herein. The return of the defendants other than the City Council rest, in their return, upon essentially the same grounds as the City Council.
It appears from the foregoing statement that the plaintiffs claim that the declaration by the managers of the election was final, and bound the City Council; and that the defendants claim that the City Council had the legal right to investigate the election, and thus ascertain the true result and declare it as they found the facts to be. Thus the leading question in the case is evolved. Was the declaration of the election by the managers final and conclusive? or did the City Council have the legal right to investigate the election and declare a different result from that declared by the managers?
I do not desire to go into an exhaustive discussion of the interesting issues, obvious upon the face of the pleadings, upon this preliminary motion. To entitle the plaintiffs to the relief sought now, in advance of a trial upon the merits, a prima facie case need only appear. To this end a brief examination of the law governing municipal elections in the city of Spartanburg is indispensable. Section 8 of the act under which the election was held, which act is known as the local option law, and to be found in 17 Stat. , 895, is as follows: " All elections under this act shall be conducted according to the laws now governing the municipal elections of the city, town, or village in which they are held." This language suggests that the laws governing municipal elections of the different municipalities of the State may not be the same, and a slight examination will show this to be the fact, the difference, however, consisting in matters of detail.
It is important here, therefore, to ascertain the laws governing elections of the city of Spartanburg. The charter of the city, approved December 24, 1880, provides for the elections with much detail and particularity, so much so as to induce the belief that the charter was intended to cover the whole subject. It provides the time of holding the elections, for the registration of voters, the disposition of the registration lists, the qualifications of voters, the administration of oaths, the counting of the votes, the declaration of the election, the notice of the result to the mayor, and the notification by him to the persons elected. Section 5 of the said charter is in the following words: " The said election shall be held in some convenient place in said city, from 8 o'clock in the morning until 4 o'clock in the afternoon, and when the polls shall be closed the managers shall forthwith proceed to count the votes and declare the election, and give notice in writing to the mayor then being, who shall, within two days thereafter, give notice, or cause the same to be given, to the persons elected," & c. Section 6 of the same charter provides " that in case a vacancy shall occur in the office of mayor or alderman by death, resignation, or otherwise, an election shall be held to fill such vacancy by order of the mayor and aldermen," & c.
It will be observed that by the 5th section quoted above the duty is imposed upon the managers to count the votes and declare the election, and give notice in writing to the mayor, who, within two days, must give notice to the persons elected; the obvious construction of this language is that the managers are not only to conduct the election, but also declare the election and announce the choice of the electors. They are then required to communicate this fact officially, not to the City Council, but to the mayor; and the mayor is required, not to investigate the election, but to inform the persons elected of their election; no duty in this connection is imposed upon the City Council, and upon the mayor is imposed only the purely ministerial duty of informing the persons chosen. It is therefore plain that no power to investigate the election is granted to the City Council by the city charter.
It is argued, however, that the power of the City Council to investigate any municipal election is supported by section 5 of " an act to provide for the election of the officers of the incorporated cities and towns in the State of South Carolina," ratified September 25, 1868 (14 Stat. , 108). That act affords upon its face very strong evidence, when taken in connection with the condition of civil affairs of the State at the time of its enactment which is matter of history, that it was intended to meet an existing exigency and then expire, and that its object has been accomplished long ago. It was re-enacted in 1872 in the general statutes, probably because some of the officers elected under it were still in office, and to repeal it then would perhaps have destroyed their tenure. The section of that act relied on, or as much of it as is material to the issue here, is as follows: After providing for the counting of the votes...
To continue reading
Request your trial