State v. Moore
| Decision Date | 04 April 1899 |
| Citation | 32 S.E. 700,54 S.C. 556 |
| Parties | STATE ex rel. MARTIN et al. v. MOORE et al. |
| Court | South Carolina Supreme Court |
Application for certiorari by the state, on the relation of J. C. Martin and others, against G. H. Moore and others. There was an ex parte order requiring respondents to show cause why a writ should not issue, and a demurrer was filed to the return thereof. Rule discharged, and petition dismissed.
Sheppard & Grier and Ellis G. Graydon, for petitioners.
Frank B. Gary and Wm. N. Graydon, for respondents.
This was an application, addressed to this court, in the exercise of its original jurisdiction, praying that a writ of certiorari be issued out of this court, addressed to the respondents, as commissioners of elections for the county of Abbeville, commanding them to certify and return to this court the record of the proceedings had before them in relation to a certain election hereinafter referred to. Upon the filing of the petition, an ex parte order was obtained from this court, upon the motion of Sheppard & Grier and Ellis G. Graydon, as attorneys for the petitioners, requiring the respondents herein to show cause before this court, upon a day specified, why a writ of certiorari should not issue addressed to the respondents, as commissioners of elections for Abbeville county, commanding them to certify and return to this court "all the proceedings concerning the protest and contest in the matter of the special election held at Donalds, on the 22d day of November, 1898, to determine the question whether certain portions of Donaldville, Due West, and Long Crane townships, in Abbeville county, shall be cut off from Abbeville county, and transferred to and incorporated into Greenwood county, had and taken by, and remaining before, them, and all papers documents, and evidence of every kind and description on which they acted in arriving at their decision in said matter." On the day named the respondents appeared, and filed their return, which was demurred to by the petitioners.
Under the view which we take of this case, it will not be necessary to set out fully the allegations of the pleadings. It will be sufficient to state here that the election in question, in pursuance of the order of his excellency, the governor, was held at Donalds on the 22d day of November, 1898, at which the requisite majority of the votes cast appeared, as counted by the managers of the election, to be in favor of the proposition to cut off certain portions of the townships above named from Abbeville county, and transfer the same to the county of Greenwood; that on the Tuesday following said election the petitioners, as the commissioners of elections for Abbeville county, met at the county seat of said county and organized as the board of county canvassers; that they proceeded to canvass the votes given as they are canvassed in general elections; that the notice of protest and contest set forth in the seventh paragraph of the petition herein was duly served upon respondents by W. N. Graydon and F. B. Gary as attorneys for the county of Abbeville; "that in order that all persons interested inthe said protest and contest might have an opportunity of being present, and being heard upon the same, your respondents, not knowing what persons were so interested, caused a notice to be published in one of the papers of the said county" (a copy of which is set out in the return) to the effect that the board of county canvassers met at Abbeville on the 29th of November, 1898, for the purpose of canvassing the votes cast at said election; that, a protest against declaring the election having been filed, the board took a recess until the 6th day of December, 1898, at which time all persons interested in the result of said election will appear before the board for the purpose of taking such action as they may deem advisable; that, in addition to this public notice, the respondents, as a board of county canvassers, served upon David Humphreys, one of the managers of said election, and one of the petitioners herein, a certified copy of such protest. It further appears from the allegations in the return, which are admitted by the demurrer, that the respondents, as the board of county canvassers, then took a recess until the 6th of December, 1898, at which time they reassembled for the purpose of hearing said protest; that the petitioners herein "entered a special appearance, by their attorneys, Sheppard & Grier and Ellis G. Graydon, and objected to your respondents, as county canvassers, exercising any judicial functions whatsoever, on the ground that our duties were purely ministerial; that we could do nothing more than canvass the vote, and certify the same, in tabulated statement, to the secretary of state, and upon other grounds which are set forth in the paper filed with us, and copied in the ninth paragraph of the petition herein"; that respondents, after argument, held that they had the right, and it was their duty, to hear any protest or contest that may be filed with them; and that after this the petitioners, by their attorneys, remained throughout, and participated in the hearing of the protest, cross-examined the witnesses, and argued the case on its merits. The board of county canvassers heard the testimony as to the manner of conducting said election, the substance of which is stated in the return, and held that said election was "fatally irregular and illegal." From this conclusion or judgment of the board of county canvassers there was no appeal. Thereupon the respondents, as the board of county canvassers, forwarded to the secretary of state a tabulated statement of the vote which had been canvassed, together with "all the papers of every kind pertaining to the said election and protest and contest, and that they have not now before them any papers whatsoever concerning the said special election."
From this statement of facts, as disclosed by the pleadings, it seems to us that there are two insuperable objections to...
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