State v. Parler

• Decision Date: 01 April 1898
• Citation: 29 S.E. 651,52 S.C. 207
• Parties: STATE ex rel. BARBER, Atty. Gen., et al. v. PARLER.
• Court: South Carolina Supreme Court

29 S.E. 651

52 S.C. 207

STATE ex rel. BARBER, Atty. Gen., et al. v. PARLER.

Supreme Court of South Carolina

April 1, 1898

Action by the state, on the relation of W. A. Barber, as attorney general, and O. C. Sires, against L. E. Parler, to contest the latter's right to the office of treasurer of Dorchester county. Dismissed.

The following is the complaint:

"First. That the plaintiff O. C. Sires is a citizen of the state of South Carolina, and a taxpayer and resident of said state, within the area proposed for the new county hereinafter described.

Second. That on or about the ___ day of ___ 1896, , one-third of the qualified electors within the area of a certain section of Berkeley county and of a certain section of Colleton county, in this state, petitioned the governor of this state for the creation of a new county, to be known as 'Dorchester,' proposed to be formed by cutting off for said purpose the said area; and in said petition the boundaries of the proposed new county, the said proposed name 'Dorchester,' the area, the taxable property, and other particulars are set forth.

Third. That thereupon, on the 9th day of November, 1896, the governor of the said state, declaring that he did so in compliance with the requirements of an act of the general assembly entitled 'An act to provide for the formation of new counties,' etc., approved March 9, 1896, ordered as follows: That an election in the said territory to be cut off for the said new county, on the 15th day of December, 1896 be held in accordance with the requirements of said act, at which election the electors shall vote 'Yes', or 'No' upon the question of creating the new county and upon the name and county seat of the proposed new county.

Fourth. That, pursuant to said order, an election was held on the said fifteenth day of December, 1896, at the polling places in said area. That at such election more than two-thirds of the qualified electors voting at such election voted 'Yes' upon the question of creating such new county. That at such election one thousand and eighty (1,080) votes were cast upon the question of the name of the new county. That of the said votes, eight hundred and seven (807) votes bearing the words, 'Dorchester: Yes,' were cast; fifty-nine (59) votes bearing the words 'Dorchester: No,' were cast; one hundred and eighty-four (184) votes bearing the words, 'Edisto Yes,' were cast; and thirty (30) votes bearing the words 'Edisto: No,' were cast. That at such election seven hundred and ninety-four (794) votes were cast upon the question of the county seat for the said proposed county. That of the said votes, two hundred and twenty-three (223) were cast in favor of Summerville, three hundred and sixty-eight (368) were cast in favor of St. Georges, and two hundred and three (203) votes were cast in favor of Ridgeville; no place receiving two-thirds of the votes cast for the location of the county seat.

Fifth. That on the 23d of December, 1896, the governor of this state issued his proclamation wherein he declared that two-thirds of the votes had not been cast for any of the proposed county seats at the election aforesaid, and declaring that his action was in accordance with the requirements of the act aforesaid, ordered an election in the before-mentioned area on the 2d of January, 1897, stating therein that, at such election, the qualified electors shall vote for a county seat. That, pursuant thereto, an election was held on said 2d of January, 1897, at the voting places in said area, on the question of a county seat for the proposed new county, at which election eleven hundred and twenty-four (1,124) votes of qualified electors were cast, of which five-hundred and eighty-six (586) votes were in favor of St. Georges, three hundred and thirty-nine (339) votes were in favor of Summerville, and one hundred and ninety-nine (199) votes were in favor of Ridgeville, as the location of the said county seat.

Sixth. That thereafter, to wit, on the 25th of February, 1897, an act entitled 'An act to establish Dorchester county,' which had been passed by the general assembly of this state, was approved. That the said act, among other things, contains the following provisions:

Section 1. Be it enacted by the general assembly of the state of South Carolina, that a new judicial and election county, which shall be known as Dorchester county, is hereby formed, with

the following boundaries, to wit: All that portion of Colleton county comprised in the townships of George, Koger, Carn, Burns, Givhans, Dorchester, and that part of Collins township in said county of Colleton lying north of the public road leading from Parker's Ferry, on the Edisto river, to a public landing, known as Lowndes landing, upon Rantowles creek, and all that portion of Berkeley county included within the following lines, to wit: From the intersection of the county line between Colleton and Berkeley counties with the run of Four Hole creek, a straight line to a point upon Saw Mill branch, one mile northeast of the South Carolina and Georgia Railroad; thence along said branch to the Colleton county line, and thence back to the starting point along the line of division between Colleton and Berkeley counties.

Sec. 2. That L. A. Klauber, of St. Georges, T. Q. McAlhaney, of St. Georges, R. L. Farrell, of Harleyville, D. E. Thrower, of Ridgeville, E. B. Fishburne and Geddings Ilderton, of Knightsville, and Roach Platt, of Delemars, are appointed commissioners to have the boundaries of said new county of Dorchester, as above indicated, surveyed and properly marked, as well as to designate and establish the particular site for public buildings, as hereinafter provided: Provided, That the county seat shall be decided by vote of the qualified electors in said county at an election which shall be held in accordance with the law, by order of the governor, which election shall be held within thirty days after the approval of this act: provided, further, that if from any cause said election shall not be held on the day mentioned, that then, and in such an event, the governor shall be, and is hereby, empowered to order another election at his discretion; and should the people at such election fail to determine upon the selection of such county seat, the governor shall be, and is hereby, authorized and empowered to call as many elections as may be necessary to determine upon the selection of such county seat, and the place receiving a majority of the qualified electors voting at such election or elections shall be the county seat. ***'

Seventh. That the area of the said Dorchester county, as defined in said act, is the same area hereinbefore mentioned.

Eighth. That subsequent to the passage of said act, to wit, on the 24th of March, 1897, another election for the location of a county seat for said proposed county was held pursuant to the requirements of said act, at which election one thousand and eighty-one (1,081) qualified voters of said area voted, and of the votes cast, St. Georges received six hundred and forty-eight (648) votes, Summerville received two hundred and forty-one (241) votes, and Ridgeville received one hundred and ninety-two (192) votes. And that thereupon the governor of this state, by proclamation of the 5th of April, 1897, called an election for senator and county officers for said county of Dorchester.

Ninth. On information and belief, that thereafter, on the 28th day of July, 1897, the defendant was commissioned by the governor of this state as county treasurer of said Dorchester county, and he has, since that time, and is now, holding and exercising the functions in all respects the same as if said office legally existed and he was the lawful owner of the same.

Tenth. That the said act is unconstitutional and void: (1) In that it undertakes to establish a new county, and that the legislature was without power so to do unless, among other things, two-thirds of the qualified electors within said area had before such establishment, and at the same election at which the questions of creating said proposed new county and the name thereof had been properly submitted, had chosen a county seat; that two-thirds of said electors had not so voted at or before the said 25th February, 1897, nor have they so voted at any election either before or afterwards; and, in undertaking so to act, the legislature acted in violation of article 7, sections 1 and 2, of the constitution of this state. (2) That the constitution of this state, in said sections, requires that the selection of a county seat shall precede the formation of a new county, and that such selection must be made by no less than two-thirds of the qualified votes of the area of the proposed new county uniting on the choice of a locality; that, on the contrary, the said act declares that the selection of a county

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