Creamer v. City of Anderson, 17894

• Decision Date: 03 April 1962
• Docket Number: No. 17894,17894
• Citation: 124 S.E.2d 788,240 S.C. 118
• Parties: F. C. CREAMER, Jake Hand and others similarly situated, Respondents, v. The CITY OF ANDERSON et al., of whom The City of Anderson, S. C., James M. Cathcart, Mayor of the City of Anderson, S. C., Clarence Ellison, George S. Mack, Ralph P. Sewell, U. H. Burton, Clarence L. Pressley, W. H. Embler and Rufus H. Moorhead, Councilmen of the City of Anderson, S. C., are, Appellants.
• Court: South Carolina Supreme Court

Page 788

124 S.E.2d 788

240 S.C. 118

F. C. CREAMER, Jake Hand and others similarly situated, Respondents, v. The CITY OF ANDERSON et al., of whom The City of Anderson S. C., James M. Cathcart, Mayor of the City of Anderson, S C., Clarence Ellison, George S. Mack, Ralph P. Sewell, U. H Burton, Clarence L. Pressley, W. H. Embler and Rufus H Moorhead, Councilmen of the City of Anderson, S. C., are, Appellants.

No. 17894.

Supreme Court of South Carolina.

April 3, 1962.

Watkins, Vandiver, Freeman & Kirven, Anderson, Huger Sinkler, Charleston, for appellants.

Leatherwood, Walker, Todd & Mann, Greenville, for respondents.

LEGGE, Acting Justice.

In this action plaintiffs challenged the official result of a special election held on October 27, 1959, to extend the corporate limits of the City of Anderson (Code, 1952, Title 47, Chapter 1, Article 2), contending that less than the required number of the votes legally cast in the area proposed to be annexed to the city were in favor of the annexation. Code, 1952, Section 47-17. The Special Referee having rejected this contention and the plaintiffs having excepted to his report, the matter was then heard by the Honorable George T. Gregory, Jr., presiding in the Tenth Judicial Circuit. From his decree dated May 24, 1961, sustaining the exceptions and adjudging the election ineffectual, the City of Anderson and its Mayor and Councilmen have appealed. The County Commissioners of Election, who had been joined as defendants, were not affected by the relief sought, did not actively defend, and have not appealed.

Appellants state in their brief that the ultimate issue here is whether a majority of the votes legally cast in the area sought to be annexed were in favor of annexation. Construing the duplicitous wording of Section 47-17 in appellants' favor for the purposes of this appeal, the ultimate issue would seem to be not whether a majority, but whether as many as one-half, of the legal votes favored annexation. A preliminary issue concerns the contention of the appellants that the circuit judge erred in permitting the complaint to be amended to show the result of the election in the area in question as certified by the Commissioners of Election. Plaintiffs' motion to so amend had been denied by the Special Referee.

The complaint alleged, upon information and belief, that the vote in the area proposed to be annexed had been certified to the City Council of Anderson by the Commissioners of Election as having stood 1,579 in favor of and 1,501 against, annexation. This allegation was expressly admitted in the answer of the City, its Mayor, and its Councilmen. Actually, the certification by the Commissioners of Election had shown 1,569 votes in favor of, and 1,500 against, annexation.

Plaintiffs' motion to amend was made at the close of the testimony, was resisted by the defendants, and was denied by the Special Referee upon the following grounds:

1. That the time limited by Section 47-22 for beginning an action to contest such an election (i. e., ninety days after the declaration of the result) had expired; and

2. That to allow the amendment at that stage of the proceeding would prejudice the defendants' case.

The gist of the plaintiffs' cause of action as alleged in the complaint upon information and belief was 'that said election is null and void and of no effect because there were a sufficient number of illegal ballots cast in the area proposed to have been annexed to have altered and affected the outcome of said election in said area * * * (and) that said ballots were illegal because they were cast * * * by persons who were either not properly registered and qualified in the precinct at which they cast their ballots, not properly registered or qualified in any precinct, and/or were not registered qualified electors residing within the territory proposed to be annexed to the City of Anderson, South Carolina'.

The allegation as to the number of votes certified by the Commissioners of Election as having been cast for and against annexation in the area sought to be annexed was evidentiary in character and not essential to the statement of the plaintiffs' cause of action. Amendment to correctly state the number of votes so certified would not have stated a different cause of action; the limitation prescribed by Section 47-22 was not applicable.

The defendants, appellants here, were in no position to contend that the proposed amendment would prejudice their case or take them by surprise. It was to them that the official results of the election had been certified by the Commissioners shortly thereafter.

The proposed amendment was properly allowed by the circuit judge in consonance with the general rule that favors the amendment of pleadings in furtherance of justice and the determination of controversies on their real facts. Cf. Braudie v. Richland County, 217 S.C. 57, 59 S.E.2d 548; Elrod v. Elrod, 230 S.C. 109, 94 S.E.2d 237; Wood v. Hardy, 235 S.C. 131, 110 S.E.2d 157.

As before stated, the official record of the election as certified by the Commissioners showed that there were cast, in the area sought to be annexed, 1,569 votes in favor of, and 1,500 against, annexation. Votes illegally cast must be deducted from the winning side. Johnston v. Corporation of City of Charleston (1795), 1 Bay (1 S.C.L.) 441; State ex rel. Davis v. State Board of Canvassers (1910), 86 S.C. 451, 68 S.E. 676; Easler v. Blackwell (1940), 195 S.C. 15, 10 S.E.2d 160. In Johnston v. Corporation of City of Charleston, supra, where the election of a city warden had been challenged, the court, approving this rule, stated the reason for it thus:

'As to the mode adopted by the council in deducting the bad votes from the highest candidate, it was perhaps the best general rule that could be adopted; for if after such deduction he had still a majority then his election would stand unimpeached; but if after the deduction the next candidate had an equal or greater number of votes than the other, so as to make it a doubtful case which of them really and truly had the greatest number of unquestionable votes; then, according to the principles of a free government and the rights of the people, it ought to be sent back to the people at large to determine finally on the point.'

It is apparent, then, that under the rule before stated if as many as seventy (70) votes were illegally cast, the result of the election would be affected, for the required number in favor of the annexation would have been lacking. At the conclusion of all of the testimony the defendants conceded that fifty-seven (57) of the challenged votes had been illegally cast and should be subtracted from the vote for annexation.

The Special Referee found that in addition to these fifty-seven (57) there were seven (7) votes cast in the area outside of the city by persons who had never lived there and who were at the time of the election and had been for a long time prior thereto residents of the City of Anderson, and that their votes were therefore illegal. Six (6) of these votes had been cast in one precinct; one (1) in the other.

Declaring that the rule requiring all illegal votes to be deducted from the winning side was a harsh one and that apparently we had never had occasion to consider it in relation to an annexation election, the Special Referee declined to apply it to the seven (7) illegal votes just mentioned, ruling instead that the principle of proportionate withdrawal should be applied, that is to say: that in each of the two precincts in question there should be deducted from the total number of votes in favor of annexation the same percentage of the votes found to be illegal as the votes against annexation bore to the total number of votes cast in such precinct. On this basis he ruled that only four of the seven votes now under discussion should be deducted from the total of the votes in favor of annexation. He declared that he could not apply the same rule to the fifty-seven (57) illegal votes before mentioned, for the reason that the case had been tried before him on the principle stated in the Johnston and Easler cases, supra; that the principle of proportionate withdrawal had not been argued before him; and that counsel for the defendants had conceded not only that the said fifty-seven (57) votes were illegal, but also that they should be subtracted from the number of votes in favor of annexation.

In their brief here counsel for the appellants argue for the principle of proportionate withdrawal in respect of the seven (7) illegal votes before referred to, suggesting, as did the Special Referee, that this principle appears to accord with the spirit of our election law, which provides (Code 1952, Section 23-359) that if, when a ballot box is opened, more ballots are found therein than there are names on the poll list, 'all the ballots shall be returned to the box and thoroughly mixed together and one of the managers or the clerk shall, without seeing the ballots, draw therefrom and immediately destroy as many ballots as there are in excess of the number of names on the...