Fraser v. James

The opinion of the Court was delivered by Mr. Justice Jones. By this proceeding in the original jurisdiction of this Court, petitioners seek to enjoin the respondents, as commissioners of Lee County, from performing any duty imposed upon them by the act of the General Assembly to establish Lee County, approved 35th February, 1903, S3 Stat., 1194, upon the grounds set forth in the petition herewith reported, which assails the constitutionality of said act, “for the reasons that the said Lee County did not certainly receive the favorable vote of two-thirds of the qual *84 ified electors in each section of said proposed new county; did not certainly have the necessary population and assessed value of property, nor leave the necessary population and assessed value of property in the three old counties from which it was carved; has not the boundaries in the act that were designated in the petition and should have controlled the election; and has cut the county of Sumter within eight miles of its court house building.” Respondents made return denying the material allegations of the petition, and petitioners gave notice of a motion for a reference to take testimony upon the issues of fact raised. Upon the call of the case, however, respondents made a motion to dismiss the petition, being in effect a demurrer thereto, upon the several grounds set forth in their demurrer or motion. 1 After carefully considering the matter, the Court is of opinion that the petition should be dismissed upon the ground that it fails to state a cause of action or facts warranting the injunction prayed. The case now presented is very different from the case as presented in Segars v. Parrott, 54 S. C., 1, wherein the former act creating Lee County, 22 Stat., 908, was declared unconstitutional, and the commissioners thereunder were enjoined from performing any duties imposed upon them by said former act. In that case the petition alleged, among other things, that the result of election for the proposed county of Lee in that portion of Darlington County sought to be embraced within the area of said new county of Lee, was as returned by the managers of election and as declared by the commissioners of election unfavorable to the creation of the said new county, in that, as so reported and declared, it failed to obtain two-thirds of the qualified electors in the Darlington section in favor of the new county. In this case it is alleged, “That the managers and county election commissioners declared as a result of said election that two-thirds of the ballots cast separately in each of the counties of Kershaw, Darlington and Sumter had voted ‘Yes’ on the creation of the county and in favor of ‘Lee’ as its name and *85 ‘Bishopville’ as its county seat.” “That the result of said last mentioned election was certified in legal form by the commissioners of election for said three old counties to the secretary of State and by him was submitted to the General Assembly at its next session. All of which proceedings were conformable to law.” In the case of Segars v. Parrott, the former act creating Lee County was declared unconstitutional because it appeared by the result of the election as certified by the commissioners of election to the General Assembly that two-thirds of those voting in the Darlington section were not in favor of the proposed new county, the majority of the Court holding the view that the. result of the election as declared and certified by the commissioners of election to the General Assembly, in the absence of any judicial action setting it aside, was final and conclusive as to such result, and could not be disregarded by the legislature. The Constitution required an election on the proposed new county, leaving it to the legislature to provide the mode of ascertaining and declaring the result, which was done by the act of March 9, 1896 —22 Stat., 64— making it the duty of the commissioners of election to canvass the returns of the managers of election and certify the result to the secretary of State, to be by him transmitted in tabulated statements to the General Assembly. The result of the election having been determined pursuant to the Constitution and act of the General Assembly by the designated tribunal having power so to do, was conclusive of the fact and binding upon the legislature as well as all others. It follows in this case, in so far as the allegations relate to the election for the proposed new county of Lee, that Segars v. Parrott is authority for dismissal of the petition. 2 In reference to the allegation in the second paragraph of the petition, that the petition to the governor for the creation of the new county was not signed by one-third of the qualified electors of each township, school district or other territorial division then existing, within the limits of said proposed new county, we may say that such alie *86 gation states no ground for injunction, for the reason, among others, that the words “each section,” in art. VII., sec. 1, of the Constitution, providing that the “General Assembly may establish new counties in the following manner : Whenever one-third of the qualified electors within the area of each section of an old county proposed to be cut off to form a new county shall petition the governor, &c.,” does not refer to such divisions of a county as township, school district and the like, but means that portion of the territory of an old county which it is proposed to embrace within the new county, without regard to township or school district lines. 3 We need not notice the allegations of the petition in detail, as it will be sufficient for the purpose of stating our view to notice the allegation “that the court house building of Sumter County is less than eight miles from the boundary line of said proposed new county,” as this is the allegation specially relied upon to sustain the petition. Sec. 5, art. VIL, of the Constitution, provides: “In the formation of new counties, no old county shall be cut within eight miles of its court house building.” And in section 2 of said article it is provided that “no county shall be formed without complying with all the conditions imposed in this article” — said article imposing other conditions in reference to area, population and assessed taxable property, &c. With respect to the ascertainment of the existence of these conditions, no tribunal has been specially invested with power to determine the facts preliminary to legislative action, as was done in reference to the election for the proposed new county. The Constitution imposed upon the legislature the duty of creating a new county when the specified conditions existed. No other tribunal having power to determine the existence of the condition under consideration, it was necessarily incumbent upon the legislature to determine for itself, whether such conditions existed as preliminary to the performance of the duty imposed upon the legislature by the Constitution in reference to the formation of new counties. The act to *87 establish Lee County, approved 25th February, 1902, recites that all conditions required by the Constitution and laws of the State for the formation of new counties have been complied with. That determination of the existence of such facts or conditions cannot be assailed in any Court by evidence aliunde impeaching the correctness of the same. The legislature has the power to determine such facts, and no fraud or deceit are imputable to a legislative body. The act to establish Lee County, adopted February 25th, 1902, is not unconstitutional by reason of anything alleged in the petition. It is, therefore, ordered and adjudged, that the petition herein be dismissed, and that the restraining order heretofore made in these proceedings be and is hereby revoked.