Hyde v. Logan

• Decision Date: 11 November 1919
• Docket Number: 10288.
• Citation: 101 S.E. 41,113 S.C. 64
• Parties: HYDE ET AL. v. LOGAN ET AL. BOYKIN ET AL. v. LOGAN ET AL.
• Court: South Carolina Supreme Court

101 S.E. 41

113 S.C. 64

HYDE ET AL. v. LOGAN ET AL.

BOYKIN ET AL. v. LOGAN ET AL.

No. 10288.

Supreme Court of South Carolina

November 11, 1919

Certiorari by Tristram T. Hyde and others and by John I. Boykin and others to review action of W. Turner Logan and others Democratic Executive Committee. Action of committee set aside.

Watts and Gage, JJ., dissenting.

Alfred Huger and Walter B. Wilbur, both of Charleston, for petitioners.

Logan & Grace, of Charleston, for respondents.

HYDRICK J.

This is a proceeding, under a writ of certiorari, to review the actions of the Democratic executive committee of the city of Charleston in ascertaining and declaring the result of a primary election, held on August 19th last, to nominate candidates for mayor and aldermen. The record is unnecessarily voluminous. It contains more than 600 pages much of which consists of irrelevant matter and unnecessary repetition. Both sides have gone afield in attempting to inject into the case matters of which the court cannot take cognizance in certiorari. A statement in detail of all the facts, allegations of fact, and contentions of the parties thereabout, and a refutation of them, would be impossible within the limits of an opinion of reasonable length and the time at our disposal, and would serve no useful purpose. We shall state only those which we deem of sufficient importance to require consideration.

The petitioner Hyde and the respondent Grace were opposing candidates for mayor and the leaders of contending factions. The petitioners Sellers and McCarthy were candidates of the Hyde faction for aldermen at large from two of the wards, and were opposed by the respondents Michel and Bold, of the Grace faction. The petitioners Boykin and others--40-odd in number--were voters who allege that they voted for Hyde, and that their votes were illegally rejected by the committee. The executive committee is composed of 24 members, one from each ward club, elected by the club. The chairman of the committee was elected by the city convention and is ex officio a member of the committee, having the right to vote only in case of a tie. The committee was equally divided between the two factions, and the chairman was an adherent of the Grace faction, and Mr. Grace's law partner, as was also Mr. Cosgrove, another member of the committee. The respondents Michel and Bold were also members of the committee, and participated in its actions complained of. The managers were bipartisan; there being two from each faction at each box.

From the count of the managers, it appeared that Hyde had a majority of one vote; the total vote for him being 3,421 against 3,420 for Grace. But it also appeared that there were in the boxes 77 votes which had not been counted, because they were challenged votes, which, under the rules, the managers were not permitted to count; but they were required to put each challenged vote in an envelope, on which the names of the voter and challenger and the grounds of challenge were indorsed, and deposit it in the box, and send it up to the executive committee for its decision. There were also, in the boxes from ward 12, 14 votes which the managers had not counted, but had inclosed in envelopes marked "mutilated ballots." These had not been counted, for the reason, as stated by the managers, that some of them had not been stamped, and the others had been scratched so as to destroy the secrecy of the ballot, to wit, one had been scratched with a blue indelible pencil, some with pen and ink, and others with black lead pencils, but so that the marks showed through on the reverse side of the ballots. The evidence is conflicting as to the number of unstamped ballots, as to whether the secrecy of some of the so-called "mutilated ballots" was destroyed by the manner in which they were marked, and as to whether the majority of them were for Grace or Hyde.

Both candidates for mayor filed due notice and grounds of contest with the executive committee, and prayed for a recount of the vote, on the ground of the probability of error in the count, caused by the limited time and the circumstances and conditions under which the managers had to perform that duty. And 9 of the candidates for aldermen at large of the Hyde faction, who appeared from the returns to have been defeated, including the petitioners Sellers and McCarthy, also filed a petition for a recount, alleging, as ground therefor, that, although it was known that many voters had voted for neither of the candidates for mayor, nevertheless the returns showed that the total vote for mayor exceeded that for the alderman at large in each of the wards, from which errors in the count were inferred.

The committee met at 8:30 o'clock p. m. on August 22d to hear and determine the contests and declare the result. The meeting was held in Hibernian Hall, a large and commodious building, with convenient halls and rooms for such meetings. The building is recessed some distance from the street and separated from it by a high iron fence. By order of the chairman of the committee a guard, who was of the Grace faction, was posted at the gate, with instructions, which he obeyed, to admit to the building all voters, challengers, and witnesses of the Grace faction, as they came, but to refuse admittance to those of the Hyde faction, until their names were called. As the latter were needed, they were called through a megaphone from the portico.

The committee was in session from 8:30 o'clock p. m., until 5:30 o'clock the next morning. It is alleged that during that time some of the Hyde witnesses became so wearied and fatigued from their long standing in the street that they left and went home, and did not answer when called; that a few left because they were sick; and some of them who, according to the return of respondents, were called and did not answer, make affidavit that they were there and would have answered if they had been called, but that they were not called at all, or, if so, that they did not hear the call, on account of the noise and confusion prevailing in the street and the indistinct manner in which the names were called through the megaphone.

When the committee met, on motion of Mr. Cosgrove, which was carried by a factional vote of 13 to 12, the matter of the challenged votes was referred to the committee on canvass with power to act. The committee on canvass was a subcommittee of the executive committee, which had been appointed by the chairman before the election, under authority given him by the rules. It was composed of four members of the Grace faction and two of the Hyde faction and the chairman of the executive committee, who was ex officio a member of each subcommittee.

The committee on canvass then met and proceeded with the hearing as to the challenged votes, and the executive committee receded from business to await its report. Mr. Cosgrove was made secretary of the committee on canvass, and as the challenged votes were taken from the boxes they were handed to him, and he opened the envelopes in which they were contained, examined them, and made some notations on a list of the challenged voters which he had previously prepared from information obtained from challengers and others, and laid them on a table before the committee. No one was allowed to enter the room, except the witnesses, and these only one at a time, and no voter was allowed to hear the evidence given against his right to vote.

The committee did not consider the case of each challenged voter immediately after hearing the evidence with regard to his right to vote. No case was acted upon individually. But, after hearing the testimony of about 150 witnesses and fifty affidavits, bearing upon the right of the various challenged voters, Mr. Cosgrove moved that the votes of 39 of the 77, whose names he read from the list which he had, be counted, and that the others be rejected, and that motion was carried by a factional vote of 4 to 0, the Hyde members refusing to vote; 26 of the 39 counted were for Grace, and 11 for Hyde, and 2 for neither. The secretary of the executive committee was then instructed to add to the returns of the managers for mayor and aldermen the challenged votes, as allowed by the committee on canvass, which gave Mr. Grace a majority of 14 votes. Mr. Burguson then moved that the committee consider the alleged mutilated ballots. Mr. Logan said that the only matter referred to this committee was the challenged votes, and that the motion was out of order. The committee then adjourned.

The executive committee was then called to order to receive the report of the committee on convass. Mr. Cosgrove made the report for the committee verbally. He read from the list which he had the names of the 39 voters whose votes the subcommittee had decided to count, and those that it had decided to reject, and moved the adoption of the report, which motion was carried by a factional vote, and Mr. Grace and the other candidates who had received majorities according to the count of the managers, were declared the nominees. The evidence taken by the subcommittee was not reported to the executive committee, verbally or otherwise.

Mr. Grimball moved the executive committee, in view of the closeness of the vote and the possibility of an application to the courts to review the election, and the importance, in that event, of the preservation of the records, that the ballots and all records of whatever nature be placed in a package under the seal of the committee, and kept in a safe place under the control of the chairman for 60 days. That motion was rejected.

Petitioners allege that the acts and omissions hereinbefore stated were so arbitrary capricious, and unfairly partisan as to constitute oppressive abuse of the...