Salley v. Smith

• Decision Date: 25 November 1942
• Docket Number: 15471.
• Citation: 23 S.E.2d 6,201 S.C. 338
• Parties: SALLEY v. SMITH et al.
• Court: South Carolina Supreme Court

23 S.E.2d 6

201 S.C. 338

SALLEY v. SMITH et al.

No. 15471.

Supreme Court of South Carolina

November 25, 1942

W M. Smoak, of Aiken, for petitioner.

Frampton W. Toole, of Aiken, for respondents.

STUKES Justice.

This is a proceeding in certiorari to review the action of the State Democratic Executive Committee whereby it affirmed the action of the Aiken County Committee in declaring A. L. Metz the party nominee for magistrate in District No. 11 of that County. The office is an appointive one under the Constitution, but the practice of designating nominees in party primaries is well known. Young v Sapp, 167 S.C. 364, 166 S.E. 354; McKnight v Smith, 182 S.C. 378, 189 S.E. 361.

On the second day after the first regular primary of 1942, August 27, 1942, the County Committee met and tabulated the vote whereby it was determined that of the votes cast in the three participating precincts (voting clubs) Metz received 475, Salley (the present petitioner) 231 and Faulkner 200. And there has been no proper appeal or contest of this finding of the result of the voting, called "tabulation of the returns" in the applicable law and rule. Section 2366, Code of 1942; party Rule No. 35.

However, the Committee on its own motion ascertained that Metz had not filed after the primary a verified statement of his election expenditures, which is required by the latter portion of Rule 27 of the party and by Section 1417 of the 1942 Code, which stipulate the form of oath which a candidate shall take, including the following: "I further pledge that I will, immediately after the primary election or elections that I am a candidate in, render an itemized statement, under oath, showing all further moneys spent or provided by me in said election." The County Committee thereupon declared Salley the nominee, disregarding the candidacy of Metz and the votes cast for him although they constituted a clear majority of all votes cast in that race and there is no other question of the validity of them. Incidentally, there is no allegation or claim of fraud or dishonesty in the election. On the same day, but after the adjournment of the meeting of the Committee, Mr. Metz filed with the Clerk of Court the required statement of expenditures and there is no attack upon its form or content; it is urged only that it came too late.

Thereafter Metz prepared and filed with the Chairman of the County Committee his protest of their action in disqualifying him and declaring Salley the nominee. This was done within the two day period required by Rule 36 of the party but copies were not served upon the other candidates for the office until two days later, the day before a regularly scheduled meeting of the State Committee. The Rule provides, after the requirement of the filing of the protest within two days after the action of the County Committee, the following: "Copies thereof shall also be served upon opposing candidate or candidates ***." The corresponding section of the statutory law does not contain the quoted provision. 1942 Code, Section 2366. It only requires the filing of the protest.

The latter in this case was accompanied by an appeal to the State Committee and when the latter met on September 1, 1942, all of the candidates concerned appeared, Mr. Salley contenting himself with an appearance only to contest the jurisdiction of the Committee upon the ground, in effect, that he had not been served with copies of the contest and appeal within two days after the declaration by the County Committee.

After the hearing the State Committee took action in the form of a resolution as follows:

"The petition in the matter of A. L. Metz in the Magistrate's race be ordered referred back to the Aiken County Executive Committee with instructions that the County Committee hear and determine the same.

"That it is the sense of the State Committee that failure to file expense accounts after the primary by any definite hour does not disqualify a candidate, and in no case shall a candidate be declared the nominee who has not received a majority of the votes cast."

Thereafter, on September 10, 1942, the County Committee met and rescinded its former action upon the indicated ground that there was no legal requirement of any certain hour of filing of the expense statement referred to, retracted its declaration that Mr. Salley was the nominee, also because he had not received a majority of the votes cast, and then declared Metz the nominee of the party for magistrate in his district. (A majority of the votes is required for nomination. Section 2366, Code of 1942; party Rule 38.)

From the latter action Salley appealed to the State Executive Committee which affirmed the action of the County Committee and petitioner procured the writ of certiorari now before this Court. The records of the Committees of their respective proceedings have been submitted and the case fully argued by counsel for Messrs. Salley and Metz. The Court also heard Mr Faulkner who, however, has no right at...