Easler v. Maybank
| Decision Date | 30 October 1939 |
| Docket Number | 14951. |
| Citation | 5 S.E.2d 288,191 S.C. 511 |
| Parties | EASLER et al. v. MAYBANK, Governor. |
| Court | South Carolina Supreme Court |
Donald Russell, Rufus M. Ward, and R. B. Paslay, all of Spartanburg for petitioners.
John M. Daniel, Atty. Gen., and J. Ivey Humphrey and M. J. Hough Asst. Atty. Gens., for respondent.
J Davis Kerr and Osborne, Butler & Moore, all of Spartanburg, amicus curiae.
By permission this action was commenced in the original jurisdiction of this Court seeking a Writ of Mandamus directed to Honorable Burnet R. Maybank, as Governor of the State of South Carolina, to compel him to order an election for school trustees in Saxon School District No. 70 Spartanburg County, in accordance with the provision contained in Section 2330 of the Code of 1932.
The "Issue" involved as stated by petitioners is: "Does Section 2330 of the South Carolina Civil Code 1932, construed in connection with 40 St. at Large, p. 1775, make it mandatory upon the Governor to call a new election, where the first election held was declared void by this Court, and such fact is brought to the attention of the Governor?"
The amicus curiae brief permitted to be filed, sub-divides the "Issue" as follows:
A brief history of the litigation growing out of the passage of Act 872 of the Acts of the Legislature of 1938, and the attempted election by authority thereof of trustees for the School District here involved may be garnered from the cases of Hawkins et al. v. Carroll et al., 190 S.C. 11, 1 S.E.2d 898, and Corn et al. v. Blackwell et al., 191 S.C. 183, 4 S.E.2d 254. We shall undertake not to repeat.
Promptly after the decision of this Court in the Corn-Blackwell case, petitioners and a large number of other qualified voters of Saxon School District filed with respondent in his official capacity a petition reciting the facts in the case and calling his attention to the decision of this Court declaring the election which had been held, void, and requested that he order another election as provided for in Section 2330 of the Code of 1932. This he has declined to do. Let us here state, parenthetically, we do not understand from the oral arguments before the Court that respondent is averse to ordering a new election if the act of ordering such election is purely ministerial on his part.
We are not here concerned with any other portion of the Statute (2330) than that which commands, under certain stated contingencies, the Governor "shall *** order an election, or a new election".
We quote so much of Section 2330 as relates to the issue or issues herein to be discussed. "When Governor to Order New Election.--Whenever any election official or officials of any political sub-division of this State, charged with ordering, providing for or holding an election, has or have neglected, failed or refused to order, provide for, or hold said election at the time appointed therefor; or in the event said election shall result in a tie vote leaving the matter at issue undecided; or in the event said election shall for any reason be declared void by competent authority; should any of these facts be made to appear to the satisfaction of the Governor, he shall (should the statute not otherwise provide for such a contingency) order an election, or a new election to be held ***."
The contingency which arises in this case is, "in the event said election shall for any reason be declared void by competent authority". The Statute continues, "should any of these facts be made to appear to the satisfaction of the Governor, he shall (should the statute not otherwise provide for such a contingency) order an election, or a new election to be held ***".
That the Governor of South Carolina is subject to a writ of mandamus to compel the performance of a purely ministerial duty is no longer a controversial question. See Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51, 105 A.L.R. 1115. Indeed, as hereinbefore indicated, the respondent does not raise such issue. The issue raised is that Section 2330 makes it discretionary since it provides that one of the contingencies therein enumerated must "be made to appear to the satisfaction of the Governor". This is just another case where the facts govern the law. The Legislature never intended that a Governor could close his eyes to an admitted fact and say that such fact had not been made to appear to his satisfaction. Respondent was advised of the holding of this Court that the election for trustees of Saxon School District attempted to be held on March 24, 1939, was null and void. The petition herein so alleges, and the return of respondent admits it. The case (Corn et al. v. Blackwell et al., supra), holding the election to be null and void, is a public record. So that, insofar as this case is concerned, the words "to the satisfaction of the Governor" may be treated as not being in the Statute.
We can reach no other conclusion, under the admitted facts of this case, than that the ordering of a new election for trustees of Saxon School District is purely a ministerial duty of the respondent unless the statute authorizing such election (Act No. 872 of the Acts of the Legislature of 1938, 40 St. at Large, p. 1775) otherwise provides for the contingency which has arisen, or that the election of trustees provided for by said Act of 1938 is not such an election as is encompassed by Section 2330 of the Code, or that the time limit for the holding of the election prevents a new election being held.
The Act of 1938 conferred upon the qualified electors of Saxon School District No. 70, Spartanburg County, upon complying with certain conditions, the right and privilege of selecting the trustees for said school district at an election. The conditions were met and the...
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