Evans v. Creech

• Decision Date: 31 May 1938
• Docket Number: 14698.
• Citation: 197 S.E. 365,187 S.C. 371
• Parties: EVANS et al. v. CREECH, Mayor, et al.
• Court: South Carolina Supreme Court

197 S.E. 365

187 S.C. 371

EVANS et al. v. CREECH, Mayor, et al.

No. 14698.

Supreme Court of South Carolina

May 31, 1938

Original proceeding in mandamus by T. R. Evans and another against F B. Creech, Mayor, and W. E. Bynum and another, councilmen of the city of Sumter, to require respondents to elect three persons and certify their names to the Governor for appointment of commissioners of election of the city of Sumter, and that commissioners so appointed proceed to hold primary election as required by statute.

Writ denied.

L. D Jennings and A. S. Merrimon, both of Sumter, for petitioners.

Epps & Epps and Shepard K. Nash, all of Sumter, for respondents.

BONHAM Justice.

The petitioners presented to the Chief Justice of this Court their petition, which prays that a mandamus do issue requiring the respondents to elect three persons and certify their names to the Governor for appointment as Commissioners of Election for the City of Sumter, and that the commissioners so appointed immediately open books of registration and keep them open till the 26th day of June 1938, and then proceed to hold the primary election as required by the Commission Form of Government Act for cities of not less than eight thousand nor more than twenty thousand inhabitants.

The Chief Justice made an order which required the respondents to show cause before the Supreme Court why the prayer of the petition should not be granted.

In due time the return to the petition was made, and the matter came on to be heard at the May, 1938, Term of the Court.

In their return, the respondents allege in paragraph 7 thereof that:

"In the year 1932, certain citizens of the City of Sumter, on behalf of all other citizens in like situation, brought a proceeding against the City Council of the City of Sumter, which raised the same identical questions that are now raised in the present proceeding, most of the paragraphs in the present petition having been taken verbatim from similar paragraphs in said previous petition, the said petitioners being represented by attorneys A. S. Merrimon, J. Ingram Wilson, D. Gordon Baker (now Mr. Justice Baker of the Supreme Court), and L. D. Lide (now Judge of the Circuit Court), and in said proceeding His Honor, Judge Stoll, refused to grant the petition of petitioners, and held that the Act of 1932 [37 St. at Large, p. 1466] which is now attacked by petitioners was constitutional, and the said proceeding being on behalf of the same persons in whose behalf the present proceeding is commenced, and against the Council of the City of Sumter just as in the present proceeding, these respondents plead the order of His Honor, Judge Stoll, as a bar to the present proceeding, and allege that the constitutionality of the Act of 1932 is res adjudicata. Copies of the petition and order in said cause, which was filed July 6, 1932, are hereto attached."

The petitioners filed no traverse to the return, but, by order of the Court, made at the hearing of the cause, they were granted leave to file a reply to the respondents' argument. In that reply they said:

"The next position taken by Respondents, in Paragraph 7 of their Return, is that in 1932 certain citizens of the City of Sumter, on behalf of themselves and all others in like situation, brought a proceeding in the Circuit Court, before His Honor, Judge Stoll, in reference to the constitutionality of the Act now in question, and that Judge Stoll refused to grant the relief sought in said petition, and held that the Act of 1932 was constitutional, and that said proceeding being on behalf of the same persons in whose behalf the present proceeding is commenced and against the City Council of the City of Sumter, that the respondents plead the order of His Honor, Judge Stoll as a bar to the present proceeding, and allege that the question of the constitutionality of the Act of 1932 is res adjudicata.

This certainly is stretching the doctrine of res adjudicata beyond any limitation to which it has ever yet applied. In the first place the relief sought before Judge Stoll was altogether different from the relief sought in this case. While it is true that the basis of the relief sought in that proceeding was the unconstitutionality of the Act now in question, yet the petitioners in this proceeding are not the ones who were the petitioners in that proceeding, and the citizens of Sumter are not all the same as they were then; but even if they were, Judge Stoll's holding would only be the law in that proceeding, and could have no application to this proceeding. But we assume that Respondents are taking these unreasonable positions because they must realize that they cannot find any authority to sustain the Acts now in question."

It is patent that the relief which petitioners seek is dependent upon the constitutionality of the Act approved April 6, 1932, which was considered by Judge Stoll in the proceeding brought by J. W. Jenkins and others, and all other voters in the City of Sumter, against the Mayor and Councilmen of the City of Sumter, in which Judge Stoll held that that Act was constitutional. Indeed, in their brief, petitioners' counsel state:

"Question Involved. Is the Act, approved by the Governor on April 6, 1932, amending Section 7661 of the Code of Laws of 1932 by adding a proviso thereto providing for municipal primaries in the City of Sumter, unconstitutional?"

That is the very Act which Judge Stoll declared to be constitutional by his order of July 6, 1932. From this there was no appeal. It is conceded that as to that case the conclusion of Judge Stoll is final. Is the matter, by reason of that order, res adjudicata as to this proceeding?

Section 406 of the Code of Civil Procedure, in Chapter 14 under the title, "Parties To Civil Action Generally," provides:

"When the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue for the benefit of the whole."

What are the rules relating to the question of res adjudicata? In the case of Johnston-Crews Co. v. Folk et al., 118 S.C. 470, 111 S.E. 15, this Court, in an able opinion by Mr. Justice Cothran, declared the law in such succinct and clear language that there has been no doubt on that subject. He said (page 17):

"The following have been declared to be the essential elements of res adjudicate: (1) Identity of the parties; (2) identity of the subject-matter; (3) an adjudication in the former suit of the precise question sought to be raised in the second suit. Hart v. Bates, 17 S.C. 35."

The Code Commissioner has appended as a note to Section 406, above quoted, the following:

"This section is discussed at length in Pom. Code Remedies, wherein it is said: 'The construction of this section of the Code has been established by the courts, and the rule is settled, as already stated, that, where the question to be decided is one of common or general interest, to a number of persons, the action may be brought by or against one for all the others, even though the parties are not so numerous that it would be impracticable to join them all as actual plaintiffs or defendants; but, on the other hand, when the parties are so very numerous that it is impracticable to bring them all into court, one may sue or be sued for all the others, even though they have no common or general interest in the questions at issue; and the necessary facts to bring the case within one or the other of these conditions must be averred."'

In the case of Faber v. Faber, 76 S.C. 156, 56 S.E. 677, the Court considered Section 140 (now section 406) of the Code. Mr. Justice (afterwards Chief Justice) Gary, for the Court, said (page 679):

"The reason for this rule is thus stated in Smith v. Swormstedt, 16 How. 288, 303, 14 L.Ed. 942: 'Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuations, by death or otherwise, that it would not be possible without very great inconvenience to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court. The legal and equitable rights and liabilities of all being before the court by representation, and especially where the subject-matter of the suit is common to all, there can be very little danger but that the interest of all will be properly protected and maintained."'

Clearly, the first suit of J. W. Jenkins et al. was on behalf of themselves and all other voters in the City of Sumter against the Mayor and Council of the City of Sumter. The present case, brought by petitioners for themselves and all other citizens in like situation, is against the Mayor and Councilmen of the City of Sumter.

In their reply brief, the petitioners state that, "the petitioners in this proceeding are not the ones who were petitioners in that proceeding." True, the petitioners called by name in the first proceeding and those called by name in this proceeding are different; but in each proceeding it is stated that the petitioners sue for themselves and all others in like situation, and the pleadings show that each set of named petitioners are suing for themselves and all the citizens of the City of Sumter interested in the matter of elections in that City.

The authorities cited make it plain that they had legal authority to do so. To hold that they were not the same parties would be to hold that every citizen of Sumter is legally entitled to bring his action...