Butler v. Ellerbe

• Decision Date: 06 July 1895
• Citation: 22 S.E. 425,44 S.C. 256
• Parties: BUTLER v. ELLERBE, Comptroller General, et al.
• Court: South Carolina Supreme Court

22 S.E. 425

44 S.C. 256

BUTLER v. ELLERBE, Comptroller General, et al.

Supreme Court of South Carolina

July 6, 1895

Action in the original jurisdiction of the supreme court by Matthew C. Butler to enjoin defendants, William H. Ellerbe and another, as fiscal officers of the state, from applying public funds to the payment of certain appropriations. Dismissed.

The petition and complaint of Matthew C. Butler alleges "(1) That he is a citizen and resident taxpayer of the county of Edgefield, state aforesaid, possessing all the qualifications and laboring under none of the disqualifications provided in the constitution and laws of this state for the electors and officeholders thereof, on behalf of himself and other citizens and resident taxpayers of said state in the like plight and condition as himself as to qualifications and disqualifications, too numerous to be made parties to this action, and of other citizens and resident taxpayers of said state possessing the same constitutional qualifications as himself, and laboring under no disqualifications save those imposed by the acts of assembly hereinafter mentioned, alleged hereinafter to have been enacted in violation of the said constitution. (2) That William H. Ellerbe and William T. C. Bates are now, and have been for some time last past, the former the comptroller general and the latter the treasurer of the state of South Carolina. (3) That on the 9th day of February, A. D. 1882 there was enacted by the general assembly of this state, and approved by the governor thereof, an act entitled 'An act to amend title 2 (entitled) "Of Elections," of part I., (entitled) "Of the Internal Administration of the Government,"' of the General Statutes, which has been incorporated into the General Statutes of South Carolina of 1882, and the Revised Statutes of South Carolina, approved by the general assembly of 1893. That section 2 of said act is in these words: "All electors of the state shall be registered, as hereinafter provided; and no person shall be allowed to vote at any election hereafter to be held unless registered as herein required." The corresponding section of the General Statutes of 1882 is section 90, and the corresponding section of the Revised Statutes of 1893 is section 132. And that section 5 of said act provides (as does also the corresponding section 93 of the General Statutes of 1882) that, in the months of May and June, 1882, the supervisors of registration should make a full and complete registration of all qualified voters in the manner therein prescribed. (4) That section 6 of said act provides (as does also the corresponding section 94 of the General Statutes of 1882): 'When the said registration shall have been completed, the books shall be closed, and not reopened for registration, except for the purposes and as hereinafter mentioned, until after the next general election for state officers. After the said next general election the said books shall be reopened for registration of such persons as shall thereafter become entitled to register, on the first Monday in each month, to and until the first Monday of July inclusive, preceding the following general election, upon which last named day the same shall be closed, and not reopened for registration until after the said general election; and ever after the said books shall be opened for registration of such electors on the days above mentioned, until the first day of July preceding a general election, when the same shall be closed as aforesaid, until the general election shall have taken place.' (5) That section 9 of said act provides (as does also the corresponding section 97 of the General Statutes of 1882) that 'any person coming of age and becoming qualified as an elector, may appear before the supervisors of registration, on any day on which the books are opened as aforesaid, and take oath as to his age and qualifications, as hereinbefore provided; and if the supervisor finds him qualified, he shall enter his name upon the registration book of the precinct wherein he resides.'. The corresponding section of the Revised Statutes of 1893 is 140. (6) That section 10 of said act provides that each elector registered shall be furnished with a certificate by the supervisor, and that no person shall be allowed to vote at any other precinct than the one for which he is registered, nor unless he produces and exhibits to the managers of election such certificate. The corresponding section of the General Statutes of 1882 is 98; of the Revised Statutes of 1893 is 142. (7) That section 12 of said act is 'In case of the removal of an elector from one residence to another in the same precinct, such elector shall notify the supervisor of registration, and shall surrender his certificate of registration to the said supervisor of registration, who shall enter the fact upon the registration book, and shall give such elector a new certificate in accordance with such change of residence.' The corresponding section of General Statutes of 1882 is 100; of Revised Statutes of 1893 is 146. And that section 15 of said act is: 'No elector, moving from one residence, precinct, parish, ward, or county to another, shall be allowed to register or vote without a transfer of registration as above provided.' The corresponding section of General Statutes of 1882 is section 103; of Revised Statutes of 1893 is section 149. (9) That the aforesaid provisions and sections of said act, and section 16 thereof, and divers others of said act, are in violation of sections 14, 21, 31, 33, 34, 36, and 41 of article 1, and sections 2, 8, and 10 of article 2, and of sections 2, 3, 7, 8 and 10, of article 8, of the constitution of this state, and of section 2 of article 1, section 1 of article 14, article 10 of the amendments, and section 1 of article 15 of amendments, and divers other sections of the constitution of the United States of America, and are such essential and main features of said act, and so interwoven with its letter and spirit, as to make said act not a reasonable, uniform, and impartial regulation of the elective franchise, but a denial and abridgment of the constitutional right of the citizen to vote, an impediment, hindrance, and obstruction of the exercise of that right, and so utterly subversive of the constitutional provisions in regard to elections by the people as to render the entire act unconstitutional, null, and void. (10) That, by an act of the general assembly of this state, approved December 23, 1893, entitled 'An act to make appropriations to meet the ordinary expenses of the state government for the fiscal year commencing November 1st, 1893,' there was appropriated, by the ninth subdivision of section 9 thereof, for the salaries of the supervisors of registration, $7,050; that is to say, to pay the supervisors of registration for each county in the state, except Charleston county, the sum of $200, for the services to be rendered during the fiscal year commencing November 1, 1893, and to the supervisor of registration for Charleston county the sum of $250, for services to be rendered during the same period,--said amounts to be paid, one-half on the 1st day of June, 1894, and the remaining one-half on the 1st day of November, 1894, out of any money in the treasury not otherwise appropriated. And there was appropriated by the eighteenth subdivision of said section 9 of said act, 'for the pay of managers of election, twelve hundred dollars'; and by the twenty-first subdivision of said section, 'for the pay of commissioners and managers of election, fifteen thousand dollars; to pay for advertising notices of election, two thousand dollars.' And your petitioner avers, on information and belief, that portions of said appropriations are still in the treasury, undrawn and unpaid, as is also a portion of a previous appropriation for payment of supervisors of registration; that by reason of the premises these appropriations are made for compensation for the performance of illegal and unconstitutional services, and are ultra vires on the part of the general assembly, and illegal, unconstitutional, null, and void, and it is illegal and violative of the said constitutions for the comptroller general of the state to draw his warrant upon the state treasurer for payment of said appropriations, or for the said treasurer to pay them. (11) That, notwithstanding the premises, the said William H. Ellerbe, comptroller general of said state, has heretofore unlawfully drawn, and is now unlawfully drawing, and intends to continue in future unlawfully to draw, warrants upon the said William T. C. Bates, treasurer of said state, for the payment of said appropriations, and that the said treasurer, William T. C. Bates, has heretofore unlawfully paid, is now unlawfully paying, and intends to continue in future unlawfully to pay, all such warrants so drawn or to be drawn by said comptroller general for payment of said appropriations. (12) And your petitioner further shows that the foregoing has worked and will work manifest wrong and irreparable injury to your petitioner and other citizens and resident taxpayers of the state of South Carolina, unless restrained by this court, and that he and they are without adequate remedy at law in this behalf. Wherefore your petitioner prays that said sections of said act, and the entire act, as it appears in the Acts of 1882, in the General Statutes of 1882, and the Revised Statutes of 1893, be declared unconstitutional, null, and void; that defendants, and the successors in office of defendants, be restrained from any further violation of the rights of your petitioner; and that this court may grant its writ of injunction, issuing out of and under the seal of this honorable court, perpetually enjoining the defendants,...