Clarke v. McCown
| Decision Date | 12 May 1917 |
| Docket Number | 9677. |
| Citation | 92 S.E. 479,107 S.C. 209 |
| Parties | CLARKE ET AL. v. MCCOWN ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Berkeley County; Ilderton W. Bowman, Judge.
Election contest between J. P. Clarke and others and R. M. McCown and others. From a judgment of the circuit court affirming a decision of the state board in dismissing the petition, the contestees appeal. Affirmed.
Nathans & Sinkler, of Charleston, for appellants.
Thos H. Peeples, Atty. Gen., and Wm. C. Wolfe, of Orangeburg, for respondents.
On May 9, 1916, an election was held at Carns Crossroads precinct in Berkeley county, on the question of annexing a part of that county to Charleston county. On the face of the returns there were 48 votes for and 22 against the proposition, the vote for annexation being just 4 more than the necessary two-thirds. The election was contested. The contestants alleged that the votes of J. M. Heape, C. M. Henderson, W. L Hyer, J. H. Koester, ______ Leggett, and Gadsden Wiggins were illegal, because they were not residents of the precinct, and that numerous other persons (not named) were permitted to vote whose votes were illegal for the same reason, that numerous persons (not named) were permitted to vote whose votes were not legal because they had not paid their poll tax six months before the election, and that enough illegal votes had been cast to change the result or render it doubtful. The contestees demurred to these allegations on the ground that they "are indefinite, uncertain, and general, and do not allege such specific facts as would enable contestees to meet the charge of illegality and unfairness." The demurrer was overruled.
After hearing all the testimony offered by both sides, the county board of convassers found that enough illegal votes had been cast to change the result, and held the election void. On appeal the majority of the state board of canvassers, in their formal judgment, overruled all exceptions, and adopted as their own the findings and decisions of the county board. The contestees then sued out a writ of certiorari in the circuit court, and, upon reviewing the proceedings, the court affirmed the decision of the state board and dismissed the petition; hence this appeal.
There was no error in overruling the demurrer. The remedy of contestees was not by demurrer, but by motion to require the allegations of the protest to be made more definite and certain. It follows that there was no error in admitting evidence in support of the allegations of the protest.
Each of the boards and the circuit court filed an opinion setting out their findings and conclusions and the reasons therefor. In each of these opinions there are some findings and conclusions that are erroneous, as matter of law, and therefore reviewable by this court. None of them, however, are of such material consequence as to affect the final conclusion. But, if passed without notice, some of them may result in prejudice to the rights of the parties interested hereafter; and for that reason these will be given consideration.
In the opinion of the State board it is said that more than one-third of the legal votes cast were against annexation, and therefore the scheme failed, and that is repeated in the judgment of the circuit court. From this appellants would have the inference drawn that it was held that the election was valid as a decision against annexation, and hence that it was erroneous, because inconsistent with the judgment that the election was void. But, if that be so, it would not help appellants, because it appears from the record that such finding and conclusion would be unsupported by evidence. That being so, and it being also inconsistent with the formal judgment, which is right, the latter controls. As above said, we have found other errors in the findings and conclusions below which do not affect the result.
We notice next the findings that some of the voters were disqualified because they were nonresidents. The residence of a person is a mixed question of law and fact; and the intention of that person with regard to the matter is deemed the controlling element of decision. His intention may be proved by his acts and declarations, and perhaps other circumstances; but when these, taken all together, are not inconsistent with the intention to retain an established residence, they are not sufficient in law to deprive him of his rights thereunder, for it will be presumed that he intends to continue a residence gained until the contrary is made to appear, because inestimable political and valuable personal rights depend upon it. Therefore it is a serious matter to deprive...
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