State ex rel. Birchmore v. State Bd. of Canvassers

Citation59 S.E. 145,78 S.C. 461
Decision Date16 November 1907
CourtUnited States State Supreme Court of South Carolina

Certiorari by the state, on relation of Charles W. Birchmore, against the state board of canvassers and others. Petition dismissed. Writ denied.

Kirkland & Smith, for relator.

Bellinger & Welch, for respondents.


The relator, Chas. W. Birchmore, on behalf of himself and numerous other qualified electors of Kershaw county, by his petition seeks a writ of certiorari from this court to the state board of canvassers for the purpose of having the court review the findings of said board in the contest of an election held in Kershaw county on the 20th of June, 1907 under an act of the General Assembly approved February 16 1907, entitled "An act to declare the law in reference to and to regulate the manufacture, sale, use, consumption possession, transportation and disposition of alcoholic liquors and beverages within the state and to police the same." The sections germane to the discussion are:

"Sec. 3. At such election the election commissioners for such county shall at each voting precinct therein provide two ballot boxes in which the ballots must be cast. Any person who is a qualified elector of such county may vote in said election. Every voter who may be in favor of the sale of liquors and beverages in such county shall cast a ballot in the box provided therefor, on which shall be printed the words, 'For Sale;' and every voter opposed shall cast a ballot upon which shall be printed the words, 'Against Sale.' Every voter who may be in favor of the application of one-third of the dispensary profits to the county school fund shall cast a ballot in the box provided therefor, upon which shall be printed the words, 'For School Fund;' and every voter opposed thereto, but in favor of its application to roads and bridges shall cast a ballot on which shall be printed the words, 'For Roads and Bridges."'
"Sec. 37. Any county may prohibit the manufacture and sale hereinbefore licensed within its limits in the following manner: Upon the petition of one-fourth of the qualified voters of such county for an election upon the question of manufacture therein being filed with the supervisor of said county, he shall order an election, submitting the question of manufacture or no manufacture, which election shall be petitioned for, ordered and conducted in the same manner as provided in sections 2, 3 and 4 of this act, except that the ballots shall be 'For Manufacture' and 'Against Manufacture."'

The illegality alleged by the contestants was the permitting of certain persons to vote without registration certificates and such arrangement of the ballot boxes as practically amounted to viva voce voting. The facts upon which these allegations are based are as follows: Pursuant to general instructions issued by the commissioners of elections, upon the question of sale or no sale of liquors, two ballot boxes were provided and used at each voting place in the county, upon one of the boxes were the words "For Sale," and upon the other box the words "Against Sale." Persons favoring the sale of intoxicants were required to cast their ballots in the box labeled "For Sale," and those opposed were required to cast their ballots in the box labeled "Against Sale." A similar arrangement was made as to the boxes for the determination of manufacture and application of the profits. Also in eight boxes 144 persons registered prior to 1898 were allowed to vote upon the production of certificates of the clerk of court of Kershaw county of which the following is an example: "I, I. P. Hough, clerk of court of Kershaw county, do hereby certify that the name of W. R. Hough appears upon the book in my office as No. 19, duly registered in Buffalo township prior to January 1, 1898, under article 2, § 4, subd. 'c,' of the state Constitution. Camden, S. C., this 29th day of May, A. D. 1907. I. P. Hough [Seal], Clerk of Court of K. C. The county board of canvassers upheld the election, but on appeal to the state board it was declared null and void and set aside on the two grounds contended for by the contestants.

It has been held by this court that the production of a registration certificate is a condition precedent to legal voting in elections in this state. Wright v. Board of Canvassers, 76 S.C. 574, 57 S.E. 536. In his petition to this court the relator seeks to show that a certificate such as the one above set out is a sufficient registration certificate as to electors registered prior to 1898. The Constitution provides that such certificate "shall be sufficient evidence to establish the right of said citizens to any subsequent registration and the franchise under the limitations herein imposed." Article 2, § 4, subd. "c." In order to construe this section consistently with the holding in the case of Wright v. Board of Canvassers, supra, we must overrule relator's contention. The language of the Constitution is plain. The first division of the clause above quoted provides that the certificate shall be sufficient evidence for subsequent registration. Subsequent registration certainly means any registration after the first registration prior to the 1st of January, 1898. Thus registration for a municipal election, or registration in a newly created precinct, or any other conceivable instance in which registration might be required, can be secured by the production of the clerk's certificate. Thus it was clearly not the intention to make the certificate of the clerk a registration certificate, but it was intended as evidence of qualification by which such certificate could be secured. It is expressly provided that the franchise is secured "subject to the limitations herein imposed." Now, one of those limitations is that the voter shall have a registration certificate, and the Legislature has provided that he shall produce it at the polls before he can legally vote. The importance of this certificate is emphasized in the case of Wright v. Board of Canvassers, above referred to; hence we shall not dwell upon it here. Suffice it to repeat that it was there held that the production of such a certificate was a condition precedent to legal voting. But are not certificates such as that above set forth really registration certificates? We think not. In the first place, the Legislature has provided that the registration certificate shall contain a statement of the elector's name, age, and place of residence as entered in the registration books, and such certificates shall be signed by at least two of the members of the board of registration. The form of the certificate is likewise established. 1 Civ. Code 1902, § 185. It is not expedient to discuss here the advisability of this legislation, but we think it very clear. The intelligent conduct of elections, the prevention of fraud, and other like objects are in view. The clerk's certificate does not set forth the facts required by law; therefore it does not comply with the legislative enactment. Such a certificate is primarily for the purpose of securing registration. Registration having been secured, the necessary certificate must follow. Where an elector, through negligence, or for other reasons, fails to secure his certificate, hard as it may seem in some cases, yet he must pay the penalty, namely, the denial of the right to cast his ballot.

However if this be the only irregularity in the election, we do not think it necessarily follows that it must be set aside. The finding of the county board, which was not reversed by the state board, was to the effect that, even if these votes were declared illegal, nevertheless the result would not be changed, nor even made doubtful. This distinguishes the case here under consideration from the Wright Case. There the result could not be determined on account of the irregularities. The universal weight of authority is to the effect that, where the result of an election is not made doubtful nor change, irregularity or illegalities, in the absence of fraud, will not cause the expressed will of the body of the voters to be set aside, unless a constitutional provision is violated or it is specifically provided by legislative enactment that such irregularity or illegality shall invalidate the election. Thus it is said in 10 A. & E. Ency. of Law, p. 766, where authorities from numerous state courts, as well as the United States court, are quoted: "The general principles to be...

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