State ex rel. Pillsbury v. Acting Bd. of Aldermen of Charleston

• Decision Date: 07 January 1869
• Citation: 1 S.C. 30
• Parties: THE STATE EX REL. GILBERT PILLSBURY AND OTHERS v. THE ACTING BOARD OF ALDERMEN OF THE CITY OF CHARLESTON.
• Court: South Carolina Supreme Court

1 S.C. 30

THE STATE EX REL. GILBERT PILLSBURY AND OTHERS

v.THE ACTING BOARD OF ALDERMEN OF THE CITY OF CHARLESTON.

Supreme Court of South Carolina.

Jan. 7, 1869.

The 5th Section of the Act to provide for the election of the officers of the incorporated cities and towns of the State, &c., ratified September 25th, 1868, providing that “the Managers of elections shall decide contested cases, subject to the ultimate decision of the Boards of Aldermen or Wardens, when organized, except when the election of a majority of the persons voted for is contested, or the Managers are charged with illegal conduct, in which case the returns, together with the ballots, shall be examined, and the case investigated, by the acting Board of Aldermen, who shall declare the election, and their decision shall be binding upon all parties,” does not authorize the acting Board of Aldermen, in a case coming properly before it, to adjudge the election to be illegal and void. Its authority is limited to an examination of the returns, together with the ballots, and a declaration of the results of the election.

The former election laws of the State, giving the Managers power to determine the validity of elections, do not enlarge the powers conferred upon the acting Board of Aldermen by said Section.

Powers granted by a statute cannot be enlarged by implication so as to include powers of an entirely different nature, as, for instance, judicial powers, where only ministerial are granted.

Where, upon an application to the Supreme Court for a peremptory writ of mandamus to compel the acting Board of Aldermen to declare an election under said Section, the return to the alternative writ does not show that no election was held, the Court has no power to determine as matter of fact the validity of the election.

An alternative writ of mandamus may be amended so as to preserve the symmetry of, or make it conform to, the proceedings.

An alternative writ of mandamus commanded the respondents to “declare said election, and allow said petitioners to enter upon their several and respective offices,” or to appear and show cause, &c. Held, That the writ might be amended by striking out the words “and allow said petitioners to enter upon their several and respective offices.”

This was an application to the Supreme Court for a writ of mandamus.

The petition for the writ is as follows:

“Your petitioners, Gilbert Pillsbury, W. R. H. Hampton, Malcolm Brown, E. W. M. Mackey, Thomas R. Small, James F. Green, Thomas J. Mackey, Philip M. Thorn, David Barrow, G. I. Cunningham and M. H. Collins, respectfully represent and state to the Court:

That, pursuant to an Act entitled ‘An Act to provide for the election of the officers of the incorporated cities and towns in the State of South Carolina,’ passed the twenty-fifth day of September, A. D. 1868, an election was held in the incorporated city of Charleston, in said State, on the tenth day of November, A. D. 1868.

That, on the day succeeding such election, within the corporate limits of said city of Charleston, the several Boards of Managers of Elections within and for said city met at ten o'clock A. M., and proceeded to count the votes, under oath, cast in said election, stating the whole number of votes cast for each candidate or person voted for, and did transmit their several reports of the same, in sealed envelopes, to the acting Mayor of the said city; that said Mayor did open the reports of said Managers, and announce and publish the whole number of votes cast, and the whole number cast for each candidate, whereby it appeared that Gilbert Pillsbury, one of your petitioners, received the largest number of legal votes for the office of Mayor of said city, and that James F. Green, one of your petitioners, and J. D. Geddings, received the largest number of legal votes, respectively, for the offices of Aldermen for Ward One of said city; that E. W. M. Mackey, one of your petitioners, and William McKinlay, received the largest number of legal votes, respectively, for the offices of Aldermen for Ward Two of said city; that Thomas J. Mackey and David Barrow, of your petitioners, and Robert Howard, respectively, received the largest number or legal votes for the offices of Aldermen for Ward Three of said city; that G. I. Cunningham and W. R. H. Hampton, of your petitioners, and L. T. Potter, Charles Voigt and Richard Holloway, received the largest number of legal votes, respectively, for the offices of Aldermen for Ward Four of said city; that Philip M. Thorn, one of your petitioners, and L. F. Wall, received the largest number of legal votes, respectively, for the offices of Aldermen for Ward Five of said city; that M. H. Collins and Malcolm Brown, of your petitioners, received the largest number of legal votes, respectively, for the offices of Aldermen for Ward Six of said city; that E P. Wall received the largest number of legal votes for the office of Alderman for Ward Seven of said city; and that Thomas R. Small, one of your petitioners, received the largest number of legal votes for the office of Alderman for Ward Eight of said city; and each and all of said persons, as aforesaid, were duly elected to the several and respective offices aforesaid.

Your petitioners further represent that the election of a majority of the persons voted for in said election was contested, whereupon the returns, together with the ballots, were examined, and the case investigated by the acting Board of Aldermen, who, thereupon, did declare as follows, to-wit: ‘The said Board do declare that there has been no legal, valid election, and that no persons have been duly elected to the offices of Mayor and Aldermen of the city of Charleston at said election.’

Your petitioners further represent that said acting Board of Aldermen had no authority, in law, to declare that there had been ‘no legal, valid election, and that no persons had been duly elected to the offices of Mayor and Aldermen of the city of Charleston,’ as aforesaid, but should have declared, upon the returns aforesaid, who had received the highest number of legal votes, and thereby were duly elected to the several offices.

Your petitioners further represent that, on the 16th day of November, A. D. 1868, your petitioners made formal demand that their election be declared, according to law, and they be allowed to qualify and enter upon the duties of their said offices, as by law they were entitled to do; but your petitioners state that said acting Board of Aldermen, disregarding the just demand of your petitioners, afterwards, to-wit: on the sixteenth day of November, A. D. 1868, did utterly neglect and refuse, and still do neglect and refuse, to declare said election, and allow your petitioners to qualify and enter upon their said offices, as, by law, they ought to have done, and to do; and as, in fact and in law, they had and have power to do.

And your petitioners further state that they are entirely without remedy in the premises, unless it be afforded by the interposition of this honorable Court by their writ of mandamus; and they therefore pray that a writ of mandamus may be issued against the said acting Board of Aldermen of the said city of Charleston, commanding them to declare said election, and allow your petitioners to enter upon their said several and respective offices; and that such other order may be had in the premises as justice may require.”

The petition was verified by the oath of the petitioners, and, on the 4th December, 1868, an alternative writ of mandamus was issued, under the seal of the Supreme Court, and attested by the Clerk. This writ recited the statements of the petition, and commanded the acting Board of Aldermen of the city of Charleston “that you declare said election, and allow said petitioners to enter upon their said several and respective offices,” &c., “or that you appear,” &c., “to show cause,” &c.

The return of the acting Board of Aldermen is as follows:

“The acting Mayor and acting Board of Aldermen of the city of Charleston, upon whom have been served copies of a writ of mandamus in this case, and whose names are subscribed hereto, to wit: George W. Clark, acting Mayor, and J. D. Geddings, L. T. Potter, Alexander Lindstrom, R. E. Dereef, Walter Cade, H. B. Olney, John H. Honour, William G. Whilden, C. Voigt, A. S. Marshall and H. Judge Moore, acting Aldermen of the city of Charleston, in answer to said writ, do hereby certify, and return unto the Supreme Court of the State of South Carolina, under whose seal said writ was issued:

That, on the tenth day of November, A. D. 1868, polls were opened and votes were received in the city of Charleston, by the Managers of Election, for Mayor and Aldermen of said city, under the orders of His Excellency Governor Scott, as directed by ‘An Act to provide for the election of the officers of the incorporated cities and towns in the State of South Carolina,’ passed the 25th day of September, 1868. That, on the day after the election, and from time to time subsequently, certain papers, purporting to be returns of Managers, were handed to the Mayor. That some were in sealed envelopes, and some were not; and that, on the day after the election, and before all the said papers, purporting to be returns of Managers, were handed in to the Mayor, a written paper, signed by numerous citizens, was served upon the Mayor, notifying him that the election of a majority of the persons voted for was contested, and that the Managers of Election were charged with illegal conduct; and praying that the returns, together with the ballots, be examined, and the case investigated by the acting Board of Aldermen, and that a time and place be appointed for the production of the proofs.

And the respondents do further return and certify, that the Mayor did not open the reports of said Managers, and did not announce and publish the whole number of votes cast, and the whole number cast for each candidate;...