Callison v. Peeples
| Decision Date | 14 October 1915 |
| Docket Number | 9208. |
| Citation | 86 S.E. 635,102 S.C. 256 |
| Parties | CALLISON ET AL. v. PEEPLES ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; Ernest Moore, Judge.
Original proceeding in certiorari by J. A. Callison and others against T. H. Peeples and others, composing the State Board of Canvassers, to review the action of the board reversing the decision of the commissioners of election of Greenwood county holding an election void. The case was referred to the circuit court, which rendered an opinion reversing the ruling of the State Board and affirming that of the county commissioners. Affirmed.
The opinion of Moore, J., in the circuit court is as follows:
This cause comes before me to review the order of the state board of canvassers upon a contest and protest filed against the declaration of the result of an election held in Greenwood county upon the formation of the proposed new county of McCormick. A writ of certiorari was issued out of the Supreme Court directing the record to be sent to that court for review, and on the call of the case it was referred to this court to pass upon the issues between the parties and was heard by me under that order. The facts about which there is no dispute are that the proposed new county cuts off from Greenwood county the whole of Yeldell township and parts of Troy, Callison, Bradley, and Kirksey townships. The voting precincts of the four last named townships were left within the old county, and the election was held at only one precinct in Greenwood county, to wit, the precinct in Yeldell township.
Voters from the other townships cut off into the proposed new county were denied the right to vote at the precinct in Yeldell township, because the managers held that only those persons could vote at the precinct in Yeldell township who held registration certificates calling for that particular precinct; accordingly only those qualified electors who lived in Yeldell township and had registration certificates calling for the precinct therein were allowed to vote upon the formation of the proposed new county. The number of qualified electors residing in those portions of Troy, Callison Bradley, and Kirksey townships which were cut off into the proposed new county is greater than the number of qualified electors who voted upon the formation of the proposed new county at the precinct in Yeldell township. This fact is apparent from the testimony of both the contestants and those in favor of the formation of the new county. The testimony does not seriously question the number of qualified electors residing within that portion of these four townships cut off into the proposed new county. For instance, the record shows that in Yeldell township 64 votes were cast; while testimony of the petitioners shows that in that portion of Troy township alone cut off into the proposed new county 47 qualified electors reside, and in Callison 41 Bradley 4, and Kirksey 2. The testimony on behalf of the proponents of the new county undertakes to reduce this number, but insufficiently to bring the result in dispute. So it is an undisputed fact in the case that there were more qualified electors residing in those portions of Callison Bradley, Troy, and Kirksey townships cut off into the proposed new county than there were qualified electors who voted at the election held in Yeldell township. It is also an undisputed fact that 6 of the parties who voted at the precinct in Yeldell township were registered within 30 days of the election, to wit, on December 7, 1914. The election was held on December 29, 1914. It is also an undisputed fact in the case that the territory left in Greenwood county has been reduced below 500 square miles.
The facts about which the records might give rise to some dispute are that there were a sufficient number of qualified electors residing within Troy, Callison, Bradley, and Kirksey townships cut off into the proposed new county who would have voted against the formation of the new county to have changed the result.
On the hearing of the case before the county board of canvassers affidavits were introduced pro and con to show how qualified electors residing in these four townships would have voted had they been allowed to vote. Some of these parties made affidavits on both sides of the question, and of those who made such double affidavits some of them appeared on the trial and testified as to how they would have voted, and undertook to explain why they had made affidavits both ways. The contestants introduced the affidavits of 53 parties who swore they were qualified electors residing within this territory and would have voted against the formation of the new county had it not been for the fact that their voting precinct was left within the old county, and for that reason they were not allowed to vote. Twelve of these 53 made affidavits on both sides of the question, and of these 12, 4 appeared on the trial and testified that their affidavits in favor of the new county were made under a misapprehension of the facts, and if allowed to vote they would have voted against it.
The county board of canvassers, after going into the matter thoroughly, found the facts practically as stated above. On appeal the state board of canvassers did not undertake to decide these questions of fact, but declared the election upon the face of the returns after deducting those votes which they held to be illegal on account of the fact that they were registered within the 30-day limit. The state board declared the election upon the face of the returns, and made no finding as to how many voters reside within the disputed territory, how they would have voted if allowed to vote, or how many were in favor of the new county or against it. To construe the decision of the state board as a finding upon these facts would be to disregard the reasons upon which its decision is expressly based, and would be unjust to the board, as well as to the contestants.
But if it were conceded that the state board made such finding on the facts this would not be conclusive; for, unless there is testimony susceptible of that inference, it becomes a question of law which the court will review just as a nonsuit, or the direction of a verdict. The testimony is susceptible of no other inference than that more qualified voters reside within the portions of Troy, Callison, Bradley, and Kirksey townships cut off into the new county than voted at the election held in Yeldell township. The testimony of both sides is conclusive as to this. The statute making the findings of fact by the state board conclusive presupposes that the findings must be supported by some testimony. The jury is the final arbiter of the facts in a law case, made so by the Constitution; yet, where only one inference can properly be drawn from the testimony, there are no facts to decide, and the direction of a verdict becomes proper and necessary to the administration of justice. So it is here. The state board declared the result on the face of the returns and gave its reason for not passing upon the facts, and the results as stated by the board are in consequence of its decision that it was not proper for it to undertake to pass upon the questions of fact involved. The first question which arises under the facts as herein above stated is: Who are entitled to vote upon the formation of a new county? To determine this, recourse must be had to the Constitution.
Section 1, art. 7, of the Constitution of 1895 makes the following provision as to the formation of a new county: "The General Assembly may establish new counties in the following manner: Whenever one-third of the qualified electors within the area of each section of an old county proposed to be cut off to form a new county shall petition the Governor for the creation of a new county, setting forth * * * boundaries and showing compliance with the requirements of this article, the Governor shall order an election, within a reasonable time thereafter, by the qualified electors within the proposed area, in which election they shall vote 'Yes' or 'No' upon the question of creating said new county; and at the same election the question of a name and a county seat for such county shall be submitted to the electors."
Section 2 of the same article makes the following provision: "If two-thirds of the qualified electors voting at such election shall vote 'Yes' upon such questions, then the General Assembly at the next session shall establish such new county."
Authority of the Governor to order an election is based upon a petition of one-third of the qualified electors within the area proposed to be cut off. What is the character of this election? The Constitution says: "That it shall be by the qualified electors within the proposed area." No authority is given to order an election for any portion of the qualified electors, but the right extends to every qualified elector within the proposed area. It is not given to those who may have voting precincts within the area, nor to those who are qualified to vote at any particular precinct, but to the qualified electors within the proposed area, no matter where their precinct is located; in other words, the purpose of the Constitution was to allow every person qualified to vote to express his preference for the new county or against it. Not only are the political rights of the elector affected by the election, but his property rights as well. The character of the election is peculiar in this respect from the ordinary election. It may transfer the property of the proposed electors from one governmental subdivision of the state to another, and proposes to place new burdens upon the people living within the area. The formation of a...
To continue reading
Request your trial