May v. Wilson

• Decision Date: 27 March 1942
• Docket Number: 15394.
• Citation: 19 S.E.2d 467,199 S.C. 354
• Parties: MAY v. WILSON et al.
• Court: South Carolina Supreme Court

19 S.E.2d 467

199 S.C. 354

MAY v. WILSON et al.

No. 15394.

Supreme Court of South Carolina

March 27, 1942

Appeal from Common Pleas Court of Greenwood County; P. H. Stoll Judge.

Proceeding by W. P. May to review a ruling of W. B. Wilson, chairman and J. H. Hammond and others, members of the Board of State Canvassers for Municipal Primaries, affirming a ruling of the Democratic Executive Committee of the City of Greenwood that certain absentee ballots, presented at a primary election in such city, could not be counted, and declaring James L Hollingsworth the nominee of such party for alderman from the first ward of such city. From an order declaring respondent Hollingsworth the Democratic party nominee for such office, petitioner appeals.

Order of Judge Stoll follows:

This matter comes before me at the instance of the petitioner to review a ruling of the State Board of Canvassers for Municipal Primaries made on an appeal from a ruling by the Democratic Executive Committee of the City of Greenwood relative to the nomination of Alderman from Ward 1 of that City in a primary election held March 25, 1941.

There were two candidates seeking the nomination, the petitioner, W. P. May, and the respondent, James L. Hollingsworth. Before the vote was counted, Hollingsworth protested certain absentee ballots and those were segregated by the Managers and not counted. Of the regular ballots cast the count showed 182 for Hollingsworth and 164 for May. There were 56 absentee ballots. On March 27, the Executive Committee met to canvass the returns and declare the result. The Committee heard evidence and argument of counsel for the respective parties relative to the legality of the absentee votes, and ruled that 55 of the absentee ballots were handled irregularly and should not be counted and declared Hollingsworth as the nominee of the party. Within due time, W. P. May appealed to the State Board of Canvassers for Municipal Primaries. The appeal was heard on July 8, 1941, after consideration of which the Board pronounced its ruling by the following resolution:

"It appearing that the applications for absentee ballots and the conveying of same to the voters was largely done by W. P. May, a candidate, who in most instances was present at the time of the marking of the ballot and that the 55 absentee ballots marked by the voters were retained by the candidate for several days before delivery by him to the election officials only a short time before the closing of the polls; and it further appearing that in a number of instances the affidavit of the voter was not signed in the presence of the Notary, ***

"Be it resolved, that the action of the Democratic Executive Committee of the City of Greenwood in refusing to count the said 55 absentee ballots be affirmed, and that James L. Hollingsworth be declared the nominee of the Party.

"The foregoing Resolution was adopted by a vote of 3 to 2,--W. B. Wilson, J. M. Moorer and J. Moore Mars voting aye and Edgar A. Brown and LeRoy Anderson voting no."

On July 21, 1941, this proceeding was commenced by petition presented to Judge T. S. Sease who issued a rule against the members of the State Board of Canvassers for Municipal Primaries to show cause before me on September 29, 1941, why a writ of certiorari should not be issued to require the Board to certify unto the Court all of the record in the said proceeding "that what is lawful in the premises may be done." W. B. Wilson, as Chairman of the State Board of Canvassers for Municipal Primaries, anticipating that the writ would be issued, filed the record of the Board along with his return. The respondent, Hollingsworth, also filed a return stating that he was ready and willing to have the matter heard by the Court.

A review by the Court of the action of the State Board of Canvassers for Municipal Primaries must be confined to the correction of errors of law only, and does not extend to the findings of fact, except when the findings of fact are wholly unsupported by the evidence. Young v. Sapp, 167 S.C. 364, 166 S.E. 354; State ex rel. Davis v. State Board of Canvassers, 86 S.C. 451, 68 S.E. 676; Ex parte Riggs, 52 S.C. 298, 29 S.E. 645; Welsh v. State Board of Canvassers, 79 S.C. 246, 60 S.E. 699; Hyde v. Logan, 113 S.C. 64, 101 S.E.

41; Jennings v. McCown, 97 S.C. 484, 81 S.E. 963.

The findings of fact as expressed in the resolution of the Board are well sustained by the evidence and are accepted as the facts of this case: The function of the Court, therefore, is merely to determine whether votes cast under the circumstances shown by these facts are legal and should be counted. The test is whether they meet the requirements reasonably construed of the Rules of the Democratic Party and the statute law of the State relative to voting by absentees at primary elections, Sections 2406 to 2415, inclusive, of the Code of Laws of South Carolina. The rules and law applicable to this particular case are the same.

Section 2408 relative to forwarding of the ballot is as follows: "§ 2408. Forwarding of Ballot, Etc.--The committee on enrollment or club secretary, shall, upon receipt of the application for ballot, if the applicant is duly registered in that precinct, enroll the name and address of the applicant on a list to be kept by them for that purpose and deliver to applicant in person, or forward to the applicant, by registered mail the following: (a) An envelope containing the folded ballot, sealed and marked 'ballot within. Do not open except in presence of postmaster' (or other person mentioned in section 2411); (b) An envelope for resealing the marked ballot, on which is printed the 'voucher,' form of which is hereinafter provided; (c) A properly addressed envelope for the return of said ballot; (d) A printed slip giving full instructions regarding the manner of marking of the ballot, in order that the same may be counted, and how prepared and returned; (e) A 'coupon,' the form of which is hereinafter given."

This section of the law was violated in the case under consideration in that the secretary did not deliver the ballots and accompanying papers to the applicant in person or forward same by registered mail but a large number of the ballots was delivered by the secretary to W. P. May, a candidate, and by him taken to the voters.

Section 2411 relative to the marking and mailing of the ballot by the voter is as follows: "Upon receipt of the registered letter, forwarded by the committee on enrollment or club secretary, the voter shall not open the sealed envelope, marked 'ballot within,' except in the presence of the postmaster, or his assistant, postal clerk, or rural letter carrier, or any one authorized to administer oaths, and shall then and there mark and refold the ballot without assistance and without making known the manner of marking same. He shall then and there place the ballot in the envelope provided for the same, seal the same, and fill in and sign the voucher printed on the back of the envelope, in the presence of the postmaster, or other person hereinabove provided, who shall witness the same in writing. The envelope, together with the coupon, which must be filled out and signed by the postmaster, or other person as herein provided, shall be enclosed within the envelope, directed to the committee on enrollment or club secretary, which shall then and there be sealed, registered, and mailed to the committee on enrollment or club secretary."

This section of law was violated in that in most instances the candidate, W. P. May, was present at the time of the marking of the ballots and that 55 of the absentee ballots, after being marked by the voters, were delivered by them to W. P. May and retained by him for several days before he delivered them to the election officials only a short time before the closing of the polls. This section was further violated in that in a few instances the voucher printed on the back of the envelope was not signed in the presence of the Notary but was subsequently and improperly signed by the Notary at some other...