Opinion
13444
July 6, 1932.
Before JOHNSON, J., Lexington, November, 1931. Affirmed.
Election contest by J.E. Davis and another, each personally and on behalf of the citizens of the Town of Cayce, against the Town of Cayce and others. From the decision of the council of the Town of Cayce declaring the election illegal and void, the contesters appealed to the Circuit Court, and from the judgment rendered, contestants appeal.
The decree of Judge Johnson follows:
1. A general election was held in the Town of Cayce for the election of a mayor and councilmen on the 27th of October, 1931, which upon the face of the returns, resulted as follows: For mayor, H.C. Moore, 69 votes, S.K. Abbott, 48 votes, and J.S. Lorick, 37 votes; for councilmen, H. E. Addy, 95 votes, D.H. Cayce, 83 votes, E.O. Ferrell, 91 votes, G.M. Kyzer, 90 votes, J.E. Neams, 91 votes, Hayden Weathersbee, 77 votes, W.F. Cullum, 59 votes, J.C. Craig, 65 votes, J.E. Davis, 42 votes, L.B. Jackson, 52 votes, W.L. Spigner, 55 votes, J.T. Thornton, 27 votes, and Leroy Watts, 44 votes. Upon tabulating the result, the managers of the election declared H.C. Moore to have been elected mayor, and that H.E. Addy, D.H. Cayce, E.O. Ferrell, G.M. Kyzer, J.E. Neams, and Hayden Weathersbee had been elected as councilmen. Shortly thereafter J. E. Davis, one of the defeated candidates for council, served upon the town council and upon the elected candidates a petition and notice of protest, contesting the said election, upon the following grounds: (a) That the supervisor of registration of the Town of Cayce was not a qualified voter of the Town of Cayce, and that there had been no legal and proper registration for said election; (b) that the books of registration for said town were not opened, and kept open for 90 days prior to said election; (c) that the name of D. H. Cayce was improperly printed upon the ballots because the said D.H. Cayce, as candidate for councilmen, did not sign any pledge; (d) irregularities in the casting of the ballots; and (e) that prior to said election printed tickets showing the names of the candidates, or a portion of them, were distributed among the voters.
2. The town council met on the night of October 29th to pass upon the contest. It is admitted that no notice of this meeting was given to H.E. Addy, D.H. Cayce, E. O. Ferrell, G.M. Kyzer, and Hayden Weathersbee, five of the candidates who had been declared to have been elected. J.E. Neams was at that time a member of the town council. The contestant J.E. Davis appeared by counsel, and, after some evidence was taken, the town council then and there declared the election illegal and void. Participating in the contest were W.F. Cullum, J.C. Craig, W.L. Spigner, and Leroy Watts, members of the town council, and defeated candidates for re-election. It is admitted that these men participated in the hearing and determination of the contest.
3. Within five days after the decision of the council, the contesters herein, who were the successful candidates for office, appealed to this Court from the decision of the town council. In appealing to this Court they attempted to act upon the provisions of Act No. 33, page 46, of the Acts of 1925. When the matter was called up for a hearing before me, a preliminary objection to the jurisdiction of the Court was entered by counsel for petitioners-contestants upon the ground that the contesters had appealed from the decision of the town council before the latter filed its report with the Clerk of Court. This objection was overruled because the decision of the council was publicly announced at the conclusion of the hearing before it, and I am of the opinion that the aggrieved parties should not be deprived of their rights because they appealed from the decision of the council prior to the filing of the latter's report. The statute provides for an appeal within five days after notice of the decision of the council, and, when the decision was announced at the conclusion of the hearing, contesters had notice of the same. They might have waited until notified by the Clerk of Court, but, as council had actually rendered its decision, they should not, in my opinion, be penalized for their promptness.
4. The questions raised by the appeal can be grouped as follows: (a) That no notice of the meeting of the town council of the Town of Cayce for the purpose of passing upon the contest was given to five of the successful candidates for town council; (b) that four defeated candidates, who were members of the town council of the Town of Cayce, participated in the contest, and were disqualified by reason of interest; (c) that the town council erred in giving consideration to the fact that I.D. Redmon, supervisor of registration, was not a qualified voter of the Town of Cayce; and (d) that the town council erred in giving consideration to the fact that the books of registration were not opened 90 days prior to the election.
5. It was conceded that the controlling questions are raised by the fact that the books of registration were not opened 90 days prior to the election, and not closed 30 days prior thereto; and that the supervisor of registration was not a qualified voter of the Town of Cayce.
6. It is admitted that the registration books of the Town of Cayce were opened on the 10th day of September, and closed on the 17th day of October, and that the election was held on the 27th day of October. The books were, therefore, open for a period of one month and seven days prior to the closing thereof, and one month and seventeen days before the election. It was not contended by the petitioners-contestants that any of the qualified electors of the Town of Cayce were deprived of the right to vote because the books were not open for the full period of 90 days, in fact it was urged by the contesters, and not denied, that none of the electors were deprived the privilege of voting because of such fact.
7. The questions arise, therefore, whether or not the failure to open the books of registration for the full period of 90 days, and to close them 30 days prior to the election, vitiated such election, it being contended by the petitioners-contestants that, under the statute, municipal books of registration must be opened 90 days prior to an election, and that, under the Constitution, as construed in Gunter v. Gayden, 84 S.C. 48, 65 S.E., 948, such books must be closed 30 days before the election.
8. Disposing of these contentions in inverse order it clearly appears that Gunter v. Gayden, supra, is easily distinguished from the cause at bar, and that the principle therein announced is not applicable to municipal registration and elections. It will be noticed that this was an election to pass on the question of extending the corporate limits of the Town of New Brookland. The method of extending the corporate limits of a municipality was at that time regulated by Section 1997, Vol. 1, Code of 1902. This provision is now Section 4385, Vol. 3, Code of 1922. An election of this kind is voted upon by the qualified electors, and no provision is made for a municipal registration but that the registration shall be only on the county registration books, which of course must be closed 30 days prior to the election. It will be noted in this case that the voters were registered by the county registration officer, and no mention is made of a municipal registration. A close examination of this case, however, will disclose that that portion of the case which says that the constitutional provision regulating general elections also controls municipal elections is merely dictum. If this case is correct for the principle that municipal elections are controlled by the general election law, then every town in the State of South Carolina has had illegal elections. Of course, the provision relative to opening municipal books prior to the election would not be applicable, and, on the contrary, it would be necessary to open the municipal books once a month during every month in the year, which has never been the practice in this State. The constitutional provision regulating a municipal election is Section 12 of Article 2 of the Constitution of 1895, which provides that "the General Assembly shall provide for the registration of all voters before each election in municipalities." In pursuance of this provision the General Assembly passed an Act which is now designated as Sections 222 and 223 of Vol. 3 of the Code of 1922, which provides that books of registration shall be opened 90 days before the election and closed at least one week before the election. This identical question was passed upon in the case of Fowler v. Town Council of Fountain Inn, 90 S.C. 352, 73 S.E., 626, 627, an action to restrain an election. It will be noticed that the case of Gunter v. Gayden, supra, was relied upon for the purpose of sustaining the position that the books of registration for a municipality should be closed 30 days prior to an election. Mr. Justice Hydrick, in passing upon this contention, said:
"The second ground upon which the validity of the election is contested is because the registration books of the town were opened 20 days before the election and kept open 10 days for the purpose of registering the qualified electors of the town, and because the voters who were registered within that time voted in the election. This was done in pursuance of Section 195 of the Code (Volume 1, Code 1902) as amended by the Act of 1908 (25 Stat., 1026). The petitioner contends that this statute violates Section 11 of Article 2 of the Constitution, which provides: `The registration books shall close at least thirty days before an election, during which time transfers and registration shall not be legal.' It clearly appears from the context — that is, from the preceding and following sections — that the registration books mentioned in Section 11 are the county registration books, in which electors in state and county elections are registered, for the very next section (Section 12) deals specifically with the registration of electors in municipal elections, and provides: `Electors in municipal elections shall possess the qualifications and be subject to the disqualifications herein prescribed. The production of a certificate of registration from the registration officers of the county as an elector at a precinct included in the incorporated city or town in which the voters desire to vote is declared a condition prerequisite to his obtaining a certificate of registration for municipal elections,' etc. The case of Gunter v. Gayden, 84 S.C. 48, 65 S.E., 948, cited by counsel for petitioner, is authority for the position that the registration books of the county must be closed, as to any city or town election, 30 days before such election; but there is nothing in the opinion in that case which sustains the contention that the provision of the Constitution above quoted from (Section 11) requires the registration books of a city or town to be closed 30 days before an election. There being no provision in the Constitution as to when such books shall be closed, the Legislature may fix any time within its discretion."
9. The result of a failure to open books of registration for the period of 90 days as required by statute is discussed and disposed of (under the facts of the instant case) adversely to the petitioners-contestants in Bethea v. Town of Dillon, 91 S.C. 413, 74 S.E., 983, and in Clinkscales v. Fant, Mayor, 116 S.C. 206, 107 S.E., 515, 516. The Bethea case involved a question of a special election for the purpose of issuing bonds. The action was brought for an injunction. Mr. Justice Hydrick, passing upon the ground that the books of registration for the Town of Dillon were not opened 20 days before the election and kept open 10 days for the purpose of registering the qualified electors of the town, as provided by statute, said:
9(a) "The first ground upon which it is contended that the bonds cannot be legally issued is that the election which was held upon the question of issuing them was illegal, because the books of registration were not opened 20 days before the election, and kept open for 10 days for the purpose of registering the qualified electors of the town, as required by statute. Section 195 of Volume 1 of the Code of 1902, as amended by the Act of 1908 (25 Stat., 1026), provides that 20 days prior to any special election to be held in any city or town, the books of registration shall be opened for the registration of the names of the qualified electors therein, and shall remain open for 10 days. In this case, the books were opened August 4th, and were kept open till August 13, 1911, both included. The election was held August 29, 1911. It will be seen that the books were opened 25 days before the election instead of 20 days as provided by the statute. While it is always better to comply literally with statutory requirements, still the slight variance in this case cannot be held to have vitiated the election, because it has not been made to appear that it affected the result. If it had been made to appear that a number of qualified electors sufficient to change the result had failed to obtain registration certificates, because the books were not open during the time fixed by statute, and that they had thereby lost their right to vote, a more serious question would have been presented. But it does not appear that any qualified elector failed to obtain a registration certificate and the consequent right to vote on account of the variance of the time fixed by the statute. It follows that the irregularity complained of did not affect the result, and was, therefore, immaterial. State [ex rel. Davis] v. [State] Board [of Canvassers], 86 S.C. 460, 68 S.E., 676."
10. The same question was passed upon in the case of Clinkscales v. Fant, Mayor, supra. It was heard before the Honorable George E. Prince, and one of the questions raised was that the books of registration were not opened 20 days before the election and closed 10 days prior thereto. Judge Prince, in disposing of this question, held:
10(a) "The plaintiff also contends that the bonds cannot be legally issued because the municipal books of registration for the special election authorizing their issuance were not opened 20 days before said election and closed 10 days prior thereto as required by Section 221, Vol. 1, of the Code. It is admitted that the books of registration were opened 28 days before the election and closed 18 days prior thereto, but it does not appear that this slight variance from the statutory requirement affected the result of the election. Nor does it appear that any qualified elector failed to obtain a registration certificate and the consequent right to vote on account of this slight variance from the time fixed by the statute.
"It therefore follows, and I so decide upon the authority of Bethea v. Town of Dillon, 91 S.C. 413, 74 S.E., 983, that the irregularity of registration complained of did not affect the result of the election and does not render it invalid."
11. I do not think there is any question but that it is better practice for all municipalities to open their books 90 days prior to an election, as required by the statute, but our cases seem to turn upon the point whether or not the qualified elector failed to register because the books were not open for the full period, and, if none of the qualified electors fail to register, then the failure to open the books for the entire statutory period is held to be a mere irregularity, and, in the absence of fraud, does not vitiate the election. In this case there is no contention or showing that any of the qualified electors of Cayce failed to register on this account, and I hold that the failure to open the books for the full period of 90 days was an irregularity not sufficient to declare the election void.
12. The case of Davis v. Town of Saluda, 147 S.C. 498, 145 S.E., 412, 415, is probably the latest case having to do with municipal elections. In discussing the registration of electors in municipal elections, the Court said: "The General Assembly shall provide for the registration of all voters before each election in municipalities." This is Section 12, Article 2, of the Constitution.
12(a) "The sections of the Constitution just quoted prescribe as a prerequisite to procuring a certificate of registration for municipal elections that the applicant shall show (1) he has a certificate of registration from the registration officers of the county; (2) that he has been a resident within the corporate limits of the town for at least four months before the election; and (3) that he has paid all taxes due and collectible for the preceding fiscal year. The very language of this section that framers of the Constitution intended that the showing of a county registration certificate, residence, and the payment of taxes should be made before a town registration officer and not before the managers of election, Section 222, Vol. 3, of the Code of Laws of 1922, contains substantially the same provisions that are in Section 12 of Article 2 of the Constitution. Construing the statutory provisions relating to municipal elections and Section 222 of the Code together, it appears that the intention of the law was to prescribe different regulations for the conduct of town elections to those fixed for county and state elections, and that one of the differences is that the law requires a showing of the payment of all taxes due to be made before the town registration officer in the case of municipal elections, while the same showing is required to be made before the managers of election in case of county and state elections."
13. The next point is that the supervisor of registration, I.D. Redmon, was not a qualified voter of the Town of Cayce. Section 223 of the Civil Code of 1922 provides: "The Mayor or Intendent thereof shall appoint one discreet individual who is a qualified elector of such municipality as Supervisor of Registration for such city or town. * * *" It is admitted in this case that I.D. Redmon was not a qualified voter of the Town of Cayce, but he claims to hold a registration certificate for the County of Lexington, and has paid his taxes.
14. This question has been recently passed upon by our Supreme Court in the cases of Hunter v. Town of West Greenville, 146 S.C. 338, 144 S.E., 62, 64, and Davis v. Town of Saluda, 147 S.C. 498, 145 S.E., 412.
15. In Hunter v. West Greenville, supra, Mr. Justice Blease restated this particular question as follows: "Is a municipal registration certificate, issued by a municipal registrar, who is not himself a qualified voter, invalid?" In passing upon this point Mr. Justice Blease (now Chief Justice) said:
15(a) "The residents of the Town of West Greenville, and otherwise duly qualified electors, had a right to presume that the person occupying the office as municipal registrar of said town was himself a qualified elector. It was not their duty to ascertain whether or not he was in point of fact a qualified elector. In the absence of any allegation or evidence of fraud in the issuing of the municipal registration certificates by such person, it would be unreasonable and unjust to deny such voters their constitutional rights of suffrage on account of this irregularity."
16. In the Davis case, supra, Judge De Vore disposed of this particular point as follows:
16(a) "Town Registrar Did not Take Oath, etc. — This point, it seems to me, is disposed of by the case of the State v. Coleman, 54 S.C. 282, 32 S.E., 406. It is not disputed that the gentleman acting as supervisor of registration for the town had been performing the duties of this office for a long time, and that preceding this election he was holding the office and acting in the capacity of registrar for the town. In the absence of a showing of fraud, I hold that he was at least a de facto officer and that his failure to subscribe to the required oath of office, upon his last appointment, will not vitiate the election. Nor do I think that the mere fact that he had others assisting him in the clerical work of issuing registration certificates will affect the validity of the registration certificates issued by him and in his name as supervisor of registration for the town, unless there was some showing of fraud in connection therewith. It is a well-recognized fact that officers frequently have to engage the service of others to assist them in the performance of their official duties and that fact alone will not void their official acts."
17. It is clear that, under the decisions cited, the failure of registration officer I.D. Redmon to be a qualified voter was not an error sufficient to alter the result of the election.
18. At the election held in the Town of Cayce there were approximately 174 registered, of whom 154 voted. The contesters herein, as the successful candidates, received in practically every instance a large majority of the votes cast. I find no evidence of fraud. Indeed, none was charged. Our Supreme Court has repeatedly held that every reasonable presumption should be indulged in to sustain an election. This election seems to have been a fair expression of the will of the qualified voters of the Town of Cayce, and I think that the town council was in error in declaring the election illegal and void.
19. In arriving at this conclusion I do not think it necessary to pass upon the other two points to the effect that four of the councilmen were disqualified from participating in the contest, and that notice should have been given to the contesters herein, other than to state that this in my opinion was an error sufficient to require a rehearing, except for the fact that my conclusion is that the election was valid, and, therefore, no rehearing is necessary.
20. It is ordered, adjudged, and decreed that the decision of the town council of the Town of Cayce filed in the office of the Clerk of Court for Lexington County, wherein and whereby it declared the election held on October 27, 1931, void, be reversed, and that H.C. Moore is hereby declared elected to the office of mayor for the Town of Cayce, and that H.E. Addy, D.H. Cayce, E.O. Ferrell, G.M. Kyzer, J.E. Neams, and Hayden Weathersbee are declared elected as councilmen of the Town of Cayce.
21. It is further ordered that any party to this action may apply to this Court for such further orders as may be necessary to carry this decree into effect.
Messrs. D.M. Winter and J.S. Verner, for appellants, cite: Appeal can be taken only from a judgment: 79 S.C. 174; 159 S.E., 844; 152 S.E., 815. Failure to open books at required time sufficient to declare election void: 157 S.C. 290; 116 S.C. 206; 84 S.C. 48; 65 S.E., 948.
Mr. J.E. Edens, for respondents, cites: Findings of fact by trial Court will not be disturbed unless clearly erroneous: 78 S.C. 487; 59 S.E., 362; 41 S.C. 50; 19 S.E., 125; 112 S.C. 431; 100 S.E., 168; 110 S.C. 263; 96 S.E., 400. Difference between county and municipal elections: 147 S.C. 498; 145 S.E., 412; 110 S.C. 265; 96 S.E., 400. When books should be opened: 91 S.C. 413; 74 S.E., 983; 116 S.C. 216; 107 S.E., 924. Disqualification of certain members of council from passing on election contest: 113 S.C. 64; 101 S.E., 41; 86 S.C. 451.
July 6, 1932. The opinion of the Court was delivered by
The main questions presented by the appeal in this case are fully covered and disposed of by Judge Johnson in his decree which will be reported. His conclusions and the reasoning upon which they rest are entirely satisfactory to this Court. We deem it necessary to refer only to Exception 3, which assigns error to the Circuit Judge in admitting at the hearing on the appeal certain affidavits, on behalf of the contesters, to the effect that deponents had not heard of any citizen "who wanted to vote and failed to register because the books were not open the full ninety days," and in refusing to give the contestants additional time in which to file counter-affidavits. Apart from affidavits, Judge Johnson's finding to the effect that there was no showing that any qualified elector of Cayce failed to register for the reason that the books were not kept open 90 days was fully supported by the record on appeal before him. Consequently, the affidavits admitted could not have materially affected his decision, and their admission, if error, was harmless.
We may add here, as some confusion may arise from the use by the Circuit Judge in his decree of the expression, "for the full period of ninety days," that his construction of the statute (Section 2288 of the Code of 1932) providing for registration of electors for a regular election in any incorporated city or town, "that the books of registration shall be opened ninety (90) days before the election and closed at least one week before the election," is a reasonable and proper one, and his use of the expression above referred to must be taken in connection therewith.
The judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE W. C. COTHRAN concur.