Gardner v. Blackwell, 13494.

• Decision Date: 25 October 1932
• Docket Number: No. 13494.,13494.
• Citation: 166 S.E. 338
• Parties: GARDNER et al. v. BLACKWELL, Secretary of State, et al.
• Court: South Carolina Supreme Court

166 S.E. 338

GARDNER et al.

v.BLACKWELL, Secretary of State, et al.

No. 13494.

Supreme Court of South Carolina.

Oct. 25, 1932.

Original application by D. A. Gardner and others against W. P. Blackwell, Secretary of State, and others, for both a writ of mandamus and an order of injunction.

Petition dismissed.

D. W. Robinson and D. W. Robinson, Jr., both of Columbia, George W. Beckett, of Beaufort, and C. B. Ruffin, of Bishopville, for petitioners.

John M. Daniel, Atty. Gen., and Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., for respondents.

BLEASE, C. J.

This is an application in the original jurisdiction of this court, for both a writ of mandamus and an order of injunction. Some of the provisions of the statutes relating to "The General Election" laws, found in sections 2298-2309 of volume 2 of the Code of Laws of 1932, are involved in the cause.

Mr. Justice Stabler, of this court, to whom the petition was first presented, by his order of October 1, 1932, referred the whole matter to the Supreme Court for hearing, "and for such action by the Court as may be deemed proper by it in the premises." In his order, the petitioners were directed to serve a copy of the order and a copy of their verified petition upon the respondents, but the respondents were not required to make any return to the petition. However, on October 10, 1932, upon the call of the cause in the court, the Attorney General appeared for the respondents and filed a written return, which the court, with the consent of the petitioners, directed should be then considered.

The facts necessary for a determination of the legal issues, as they are conceded by the parties in some instances, and not disputed in others, are as follows:

The Republican Party in South Carolina, by some method, but not in a primary election, have nominated for the general election to be held on November 8, 1932, candidates for the offices of United States Senator, Congressmen from the several congressional districts, and eight presidential electors. The petitioner Miss Clara Har-rigal is the nominee for United States Senator; the petitioners D. A. Gardner and C. B. Ruffin are nominees for Representatives in Congress; and the petitioners J. B. Hambright and G. J. Cherry are two of the nominees for presidential electors. The petitioner Gardner is the state chairman of the Republican Party in this state, and the petitioner Miss Elizabeth Hearn is the state secretary of that party. All the petitioners are qualified electors of the state and entitled to vote in the coming general election.

The respondent Hon. W. P. Blackwell is the secretary of state, and, as such official, he is a member of the state board of canvassers. See sections 2317 and 2318, vol. 2, Code of 1932. The respondents T. E. Clark and C. H. Hinnant are two of the three duly qualified federal election commissioners for Richland county, and the respondent Kil-lian Harmon is one of such commissioners for Lexington county. These three respondents are made parties to this action, representing themselves and the large number of other federal election commissioners, appointed under the law by the Governor, who are too numerous to be made parties to this proceeding.

The Democratic Party of South Carolina, in primary elections heretofore conducted, have nominated for the coming general election candidates for the offices of United States Senator and Representatives in Congress, and the state committee of that party has nominated the eight candidates of the party for presidential electors.

The petitioners allege that "it has been the custom and practice at General Elections for tickets containing only the names of the Democratic nominees for office and separate tickets containing only the names of the Republican nominees for office to be placed on the tables used by the managers of the election for use of the qualified voters." In that connection, they say that this custom and practice has made it "impossible for a qualified elector to vote without divulging the names of the candidates for whom he was voting and this practice and this custom has destroyed the secrecy of the ballot guaranteed to each qualified elector and to each candidate by the laws of this State and of the United States." The alleged custom and practice is not altogether admitted by the respondents, who say, however, regarding these allegations, that, if the same are true, nevertheless such custom and practice have not destroyed "the secrecy of the ballot."

The petitioners have requested his Excellency, Hon. I. C. Blackwood, the Governor of the state, the secretary of state, Mr. Black-well, and the federal election commissioners, who are made respondents herein, "to prepare or supervise the preparation of a ticket for use by the qualified electors at the General Election containing the names of all candidates for the United States Senate, for United States Congress and for Presidential Electors, including the candidates nominated by the Democratic party and by the Republican party." Along with the request made, the petitioners tendered to his Excellency, the Governor, and the secretary of state, a list of the candidates nominated by the Republican Party in the state for the named offices, and expressed a willingness to pay one-half of the cost of printing the tickets, or such proportion of such cost, which would be properly chargeable to the candidates for those offices nominated by the Republican Party. The request was refused on the ground that the Governor, the secretary of state, and the federal election commissioners, and none of them, were authorized or required by law to print, have printed, or supervise the printing of, any tickets for any party; that they had not printed, and would not print, had not supervised, and would not supervise, the printing of, tickets for the Democratic Party, or any other party, because the law does not require them so to do.

The petitioners allege, as matters of law:

(1) That the statutes of this state "provide that there shall be only one ticket or ballot for persons nominated to the United States Congress, Senate and Presidential Electors, and that under the provisions of these laws the names of all candidates for these positions should be printed on the same ticket in a manner similar to that provided by law for the conduct of primary elections, with proper directions to the qualified elector or voter to scratch the names of candidates for whom he does not desire to vote, and that the vote on a ticket of this kind is the only method by which the absolute secrecy of the ballot can be maintained."

(2) That the request made by them of the Governor, the secretary of state, and the federal election commissioners was proper and in accordance with the laws of this state and of the United States, and that their request should have been granted.

The petitioners ask of this court that a writ of mandamus do issue to the secretary of state, requiring him to print, or supervise the printing of, tickets prepared for use at the coming general election, and that he be expressly required "to print on one ticket the names of all of the candidates for Federal offices, " especially including the names of the nominees of the Republican Party in this state for such offices, that the federal election commissioners be required to see "that no ticket other than the ticket containing the names of all of the candidates for the office to be voted for be used at the ballot boxes or counted, " and that the secretary of state be required "to instruct the Commissioners of Election to conduct the same in such manner as will guarantee the secrecy of the ballot."

The petitioners also ask that the respondents be enjoined and restrained "from allowing the use of any ticket or ballot at the General Election other than a ticket or ballot containing the names of all candidates for United States Senate, for United States Congress in the respective Districts and for Presidential Electors, " and that the respondents and all the managers of elections be restrained "from conducting the election in such manner as will deprive any elector of the right to maintain the secrecy of his ballot."

The petitioners rightly claim that the offices of United States Senator and Representatives in Congress are federal offices. They contend, too, that presidential electors are federal officers, but we are not prepared to assent to that proposition. Mr. Justice Gray, speaking for the Supreme Court of the United States, in the case of Fitzgerald v. Green, 134 U. S. 377, 10 S. Ct. 586, 587, 33 L. Ed. 951, indicated a view different from that of the petitioners, expressed by him in the following language: "The sole function of the presidential electors is to east, certify, and transmit the vote of the state for president and vice-president of the nation. Although the electors are appointed and act under and pursuant to the constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the states when acting as electors of representatives In congress."

Regardless of any difference of opinion, however, as to whether any of the offices involved in this proceeding are federal or state, the petitioners very properly admit that "the South Carolina Legislature and the South Carolina Courts have jurisdiction of the matters in issue." See McPherson v. Blacker, 146 U. S. 25, 13 S. Ct. 3, 36 L. Ed. 869, and In re Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274. it follows, therefore, that our examination need only extend to our statutory enactments relating to the general election laws.

We have examined carefully the sections of our Code of laws to which we have already adverted, and, in addition thereto, sections 2310 to 2316, volume 2, of the Code, relating to "The Board of County Canvassers, " and sections 2317 to 2329, Id., under the...