Parler v. Fogle

• Decision Date: 14 December 1907
• Citation: 59 S.E. 707,78 S.C. 570
• Parties: PARLER et al. v. FOGLE et al.
• Court: South Carolina Supreme Court

59 S.E. 707

78 S.C. 570

PARLER et al. v. FOGLE et al.

Supreme Court of South Carolina

December 14, 1907

Petition by A. R. Parler and others for a writ of injunction against W. Brooks Fogle and others. Petition denied.

W. C Wolfe, B. H. Moss, and D. O. Herbert, for petitioners.

Bellinger & Welch, for respondents.

WOODS J.

On October 28, 1907, his excellency, Gov. Ansel, ordered an election to be held on Tuesday, December 17, 1907, upon the question of creating a new county out of portions of Orangeburg and Lexington counties. The plaintiffs, alleging themselves to be qualified electors residing within the area of the proposed new county, have filed their complaint in this court, praying that the election be enjoined on several grounds which will be separately considered. The answer does not deny any material allegation of fact, and it was agreed at the argument that it was to be treated as a demurrer to the complaint. The question therefore is whether, taking all the statements of fact in the complaint as true, the court should enjoin the commissioners and managers from holding the election.

The petition to the Governor and all the proceedings thereunder are alleged to be void "because the boundaries and lines of the proposed new county are not stated and described with sufficient definiteness and clearness so as to be understood and followed by the surveyors, and said boundaries and lines are not surveyed and 'plainly marked,' as required by a statute, with sufficient definiteness and clearness, so as to enable those interested to know certainly where the lines of the proposed new county are located, and who, among those residing near the proposed new lines, are within, and who are without, the proposed new county; and also because the said proposed lines have been run in utter disregard of the lines of the townships and polling precincts established by law in the said county of Orangeburg, and in many cases the townships and polling precincts are cut up and divided so as to include the greater part of the township or polling precinct within the proposed new county, and exclude the polling or voting place, and such is the case with Orange Goodbye, and Poplar townships and other townships in said county of Orangeburg." The complainants further allege the Governor, without warrant of law, allowed the petition presented to him to be amended so as to enlarge the area of the proposed new county. There is nothing in the Constitution or statutes of the state requiring the lines of new counties to conform to township or precinct boundaries. The question whether the boundaries of the proposed new county were laid down in the petition with sufficient definiteness was for the governor to determine. Lamar v. Croft, 73 S.C. 407, 53 S.E. 540; Reese v. Ansel, Governor, 58 S.E. 933. So also it was within the discretion of the Governor to refuse or allow the amendment to the petition before him setting forth with more definiteness the boundaries. The Constitution proceeds on the theory that the Governor, with respect to all proceedings before him, will see that its provisions are carried out with justice to all parties concerned; and to this end by implication he was empowered to pass upon all questions of detail, such as proposed amendments, reasonably necessary to the determination of the main question whether the election should be ordered.

The plaintiffs next insist the election should be enjoined because they are qualified electors residing within the area of the proposed new county, who will be prevented from voting at the election. On this important question the allegations of the complaint are as follows: "That section 1 of article 7 of the Constitution of South Carolina provides that, upon due proceedings had as provided by law in such case, the Governor shall order an election upon the question of forming and creating a proposed new county, and that at such election all the qualified electors residing within the territory constituting the proposed new county shall have the right to vote in such election for or against the formation and creation of such new county. That section 576 of volume 1 of the Code of Laws of 1902 of South Carolina provides that for the purpose of such election the commissioners of election for each old county proposed to be cut shall appoint managers for each voting place in the area of the old county proposed to be cut off, and shall deliver to them the books of registration for those voting places, limiting and restricting the voting to such voting places as are located within the new territory, and there is no provision of law for holding such election at precincts outside of the new territory. That pursuant to the last-mentioned statute, the defendants have only ordered such election to be held within the territory constituting the proposed new county, and have instructed the managers of such election to allow only those electors registered at the polling precincts within the territory constituting the proposed new county to vote in such election, whether residing in such territory or not. That four of the plaintiffs, to wit, A. R. Parler, A. C. Smith, E. F. Irick and George W. Smith, reside within the lines of the proposed new county, and are all duly qualified, registered electors in all particulars, and reside within the townships of Goodbye and Poplar, in said county and state, and are duly registered to vote in all the voting places within said townships, to wit, at Dantzler's Mill and Elloree, but that, while the greater portion of said townships and...