State v. Shaw
| Decision Date | 22 January 1878 |
| Citation | 9 S.C. 94 |
| Parties | STATE v. SHAW. |
| Court | South Carolina Supreme Court |
Under the Constitution of the State, Circuit Judges must be elected by " joint ballot" of the General Assembly, as directed by § 13, Art. IV, and not viva voce , as directed by § 24, Art. II; otherwise the election will be null and void.
This was an application by the Attorney General to the original jurisdiction of the Supreme Court for a judgment of " ouster" against the Hon. A. J. Shaw, one of the Circuit Judges of the State, from office, on the ground that he had been unconstitutionally elected.
The facts were: that at an election held on February 12th, 1875 for Judge of the Third Judicial Circuit to fill the unexpired term of Hon. J. T. Green, deceased, the Hon. A. J. Shaw was voted for, received a majority of the votes given, and was declared elected; that the voting was viva voce as directed by Section 24, Article II, of the Constitution of the State, and not by ballot, as directed by Section 13 Article IV; that he was commissioned by the Governor qualified, and entered upon the duties of his office.
The Articles of the Constitution mentioned are as follows:
ARTICLE II.-LEGISLATIVE DEPARTMENT.
ARTICLE IV.-JUDICIAL DEPARTMENT.
NOTE.-It must not be supposed by persons not intimately acquainted with the judicial and political history of South Carolina at and for a few years prior to, the commencement of this proceeding that there was any objection whatever to Judge Shaw; on the contrary, he was more esteemed than any of the Circuit Judges then in office, and there is no doubt whatever that the proceeding against him would never have been instituted had not other Circuit Judges of the State been in the same category, and they, with some exceptions, the State desired to get rid of, and, as proof of this, we may mention the fact that Judge Shaw was immediately elected to the same office by the unanimous vote of the General Assembly.
The following briefs were filed:
Points and authorities of LeRoy F. Youmans, Attorney General:
1. This proceeding was instituted by my predecessor to test the validity of the election of A. J. Shaw as Circuit Judge. He was elected by the joint vote of the General Assembly, the members thereof voting viva voce , and claims that Section 24, Article II, of the Constitution, providing that in all elections by the General Assembly the members shall vote viva voce , is the law of the case. If this view be correct, this proceeding should fail. The State claims that Section 13, Article IV, providing that for each circuit a Judge shall be elected by joint ballot of the General Assembly, is the law of the case. If this view be correct, this proceeding should succeed. Should the general provision in that part of the Constitution relative to the legislative department, Article II, or the special provision in that part of the Constitution relative to the judicial department, Article IV, prevail? The authorities seem clear that the latter and special provision must prevail.- Potter's Dwarris, 117, et seq. , 272, 273, et seq. , and cases cited; Sedg. on Con. and Stat. Law, 60, 61.
2. A fanciful distinction has been suggested between elections by " joint ballot" and " by ballot jointly" of the General Assembly, but the phraseology of South Carolina legislation negatives the idea.-Bell. S. C. Elec. Laws, 510.
3. Voting by ballot being the depositing a little ball or ticket into a ballot box, and voting viva voce being speaking the name by word of mouth, the former being secret , and so intended to be, the latter being open , and so required to be, it follows that if the Constitution requires the former mode an election by the latter mode is illegal and confers no title.- Botts vs. Jones , 2 Cong. Elec. Cas., 73; Ottero vs. Gallegos , 2 Cong. Elec. Cas., 177; Easton vs. Scott , 1 Cong. Elec. Cas., 272; Comwonwealth vs. Reed , Brightley's Elec. Cas., 126; 2 Ashmead 261.
4. The journal of the convention showing the attention paid to and the history of this clause, (260, 261, 854, 856,) the ordinance for the ratification of the Constitution by the people, (14 Stat. 31, introduction,) and its ratification by the people all conspire to show that the view taken by the State should prevail.
Additional authorities cited by LeRoy F. Youmans, Attorney General:
GENERAL WORDS QUALIFIED BY SPECIAL PROVISIONS.
The King vs. Archbishop of Armagh , 8 Mod. Rep., 8; Thornby vs. Fleetwood , 10 Mod. Rep., 115, 408; Roper vs. Radcliffe , 10 Mod. Rep., 242; Gregory's case, 6 Coke 19 b.; Dr. Bonham's case, 8 Coke 118 b, 119 a.
" ALL." - Dr. Bonham's case , 8 Coke 118 b, 119 a; 1 Jar. on Wills, 416; State vs. Sullivan , 14 Rich. 283.
CONTEMPORANEOUS CONSTRUCTION.
Broom's Max.; Gorham vs. Bishop of Exeter , 5 Welsby, Hurlstone and Gordon, (Exchequer,) 667; Baron Alderson; Barbat vs. Allen , 7 Welsby, Hurlstone and Gordon, (Exchequer,) 617, Pollock, Chief Baron; King vs. Inhabitants of Eriswell , 3 Term Rep., 721; Hart vs. Frame , 6 Cl. and Fin., 199; Lord Denman in O'Connell vs. Regina; Broom's Leg. Max., 7th Am. Ed., 134, 140.
PRINCIPLES OF CONSTRUCTION.
Wigram on Wills, 15, 17; Frazer vs. Boone , 1 Hill Ch., 360; Horlbeck vs. St. Philip's Church , 13 Rich. Eq., 138, 139; State vs. Aldermen of Charleston , 1 S. C., 39.
CONSTRUCTION OF CONSTITUTIONS.
Cooley, 58, 59, 66.
WEBSTER'S DEFINITIONS: ELECT-BY-JOINT-BALLOT.
" BALLOT." - Williams vs. Stein , 38 Ind. 89. Meaning fixed in the Constitution before its occurrence here.- Richardson vs. Watson , 4 B. and Adolph, 799.
" JOINT BALLOT." -Meaning fixed by previous Constitutions and Acts of Assembly, and legislators speak the language of the law.- Roper vs. Radcliffe , 10 Mod. Rep., 234.
A committee of revision and style would have brought the two provisions together-the mode of election of Circuit Judges-as an exception to the general mode of elections by the General Assembly.
Argument of Simonton & Barker, for Defendant:
I. The Constitution of the State, as the fundamental law of the land, provides that in all elections by the people the electors shall vote by ballot.-Art. VIII, § 1.
That in all elections by the General Assembly, or either house thereof, the members shall vote viva voce , and their votes thus given shall be entered on the Journal of the House to which they respectively belong.-Art. II, § 24.
The reason for this distinction between the mode of voting by the constituent and by his representative is obvious. The people vote by an inherent sovereign right, inseparable from their existence as citizens of a free country. The representative makes use of the right to vote solely from the grant of such right in the Constitution. He exercises but a delegated authority. He votes for and in the stead of his constituents. No one has the right to inquire how a citizen votes. He is a sovereign, and one of the safeguards by which he hedges in his sovereignty in this respect is the right to conceal his vote.
Every citizen has the right to know how his representative votes. One of the checks upon the representative, the safeguard of the citizens whom he represents, is that his vote in his representative character must be open, public, subject to scrutiny.
This is the plain, broad distinction made in the express words of the Constitution. If the position taken by the Attorney General be correct, this distinction is broken down and obliterated.
II. The General Assembly is the creature of the Constitution. It owes all of its powers to the instrument creating it. The Constitution could as well have made one house as two. It could have dispensed with the General Assembly altogether. It could have given it powers purely legislative, with no power in the selection of officers in the other departments. It could have provided for the election of the officers in the executive or judicial departments by the people, by the Legislature or by the Executive. In searching for the powers of the General Assembly, certainly in seeking to discover the mode in which it shall exercise its powers, we must look to the Article of the Constitution which created it. That Article gives to the General Assembly legislative powers in which the Legislature is supreme, and certain other powers, not at all legislative, but representative in their character, such as the election of various officers, in which the General Assembly acts simply in the stead of the people. In the use of its purely legislative powers the scrutiny of the people into the action of the General Assembly is exercised only in certain cases, such as the increase of the public debt, the change of the fundamental law, the consideration of the veto of the Governor, or the demand of two members that the vote be recorded. In these cases only must the representative so act that his action is recorded for the examination and judgment of his constituents. But in the exercise of their representative powers, the Constitution directs that in all instances the votes shall be viva voce and spread at large on the journal.
If the position taken by the Attorney General be correct, the result will be the engrafting into the Constitution of the grant to the General Assembly of a new and contradictory...
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