Smith v. Saye , Com'rs

October 25, 1924. The opinion of the Court was delivered by Proceeding by certiorari in the Court of Common Pleas for York County, for the purpose of reviewing the action of the Permanent Road Commission of York County, acting as a board of canvassers, in declaring the result of an election held on October 23, 1923, upon the question submitted under the Act of March, 1923 (33 Stat. at Large, p. 881), of the issue by the County of $2,000,000 of road bonds, in favor of such issue. After the election had been held on October 23, 1923, the board of canvassers met on October 30th, for the purpose of canvassing the election, tabulating the returns, and declaring the result of the election. At that meeting certain citizens (the respondents in this appeal), appeared and filed a formal protest and contest against the validity of the election, upon various grounds which will later be stated. The board took a mass of testimony, which is set out in the record, and decided by a vote of 4 to 1, to overrule all objections and declare that the election had been carried in *Page 59 favor of the issue of bonds, by a vote of 1,005 to 673, a plurality of 332 in favor of the issue. Thereupon the protesting citizens filed a petition for a writ of certiorari to review this action of the board of canvassers, which was duly issued, and to which the board made return. The matter then came on to be heard by his Honor, Judge Henry, upon the report of the board, the dissent of Col. Lewis, a member, the protest, the testimony taken, the writ, and the return. On January 11, 1924, Judge Henry filed a decree overruling the report of the board, sustaining certain of the grounds of protest filed by the petitioners, and holding "the election held at the precincts of Ebenezer, Rock Hill and Fort Mill, null and void," and that, consequently, a majority of the votes in the County was against the issue of the bonds, that is 567 to 268, eliminating these three boxes. It will be observed in passing that Judge Henry did not declare the election void; on the contrary, he held that, by reason of the irregularities at the three precincts named, the votes at those precincts must be eliminated, resulting in avalid election against the issue. From this decree the permanent road commission has appealed, one of its members not participating in the appeal. The petition for the writ of certiorari follows the general lines of the protest, in its attack upon the validity of the election as a whole, and in addition insists that for irregularities and illegalities at the precincts of Rock Hill and Fort Mill, those boxes should be thrown out entirely, leaving the result against the issue of bonds. It omits the attack contained in the protest against the vote at Ebenezer precinct. The Circuit Judge declined to set aside the election in toto; on the contrary, he confined his decree to a consideration of the alleged irregularities and illegalities at Rock Hill, Fort Mill, and Ebenezer (although, as stated, the attack upon the vote at Ebenezer, contained in the protest, is *Page 60 omitted from the petition), and held that by reason thereof those boxes should be thrown out entirely. The result accordingly was: Total votes for bonds _______________________________ 1005 Less: At Rock Hill ______________________________ 621 At Fort Mill ______________________________ 97 At Ebenezer _______________________________ 19 737 ____ ____ Net vote for bonds __________________________________ 268 Total votes against bonds ___________________________ 673 Less: At Rock Hill ______________________________ 59 At Fort Mill ______________________________ 35 At Ebenezer _______________________________ 12 106 ____ ____ Net vote against bonds ______________________________ 567 He, therefore, held that the result of the election was a "majority in the County against the issue of bonds." Omitting, for the reason stated, a consideration of the alleged irregularities and illegalities in the conduct of the election at Ebenezer, the question for consideration and decision is whether or not the alleged irregularities and illegalities in the conduct of the election at the precincts of Rock Hill and Fort Mill, are legally sufficient to justify the conclusion of the Circuit Judge that those boxes should be thrown out entirely, leaving the result against the issue of bonds. Taking up the specific charges of irregularities at these precincts (Rock Hill and Fort Mill), we find that there are three: (1) That persons were allowed to vote without requiring of them the production of registration certificates; (2) that persons were allowed to vote without requiring of them proof of the payment of all taxes, State, County, municipal, poll, and State income tax, due for the year 1922; *Page 61 (3) that persons were allowed to vote without having been sworn as required by law. The first two charges apply to both Rock Hill and Fort Mill; the third to Fort Mill only. Certain specific objections were made to the entire election: (1) That the Supervisors of Registration failed to revise the list of registered electors as required by Volume 3, Code of 1922, § 215; (2) that the books of registration were not closed and kept closed for 30 days preceding said special election, and kept in the custody of the Clerk of Court, as required by Volume 3, Code of 1922, § 220. Inasmuch as these questions are not passed upon in the decree, and its result is to affirm the validity of the election (eliminating the votes at Rock Hill, Fort Mill, and Ebenezer), it must be assumed that they were not sustained, and are not, therefore, before us for consideration. The facts as to these alleged irregularities are fully set forth in those portions of the record for appeal hereinafter directed to be reported, and need not be repeated here. Assuming, but not deciding, the validity of the objections, it is demonstrable that the alleged irregularities could not have altered the result of the election, and were, therefore, insufficient to vitiate the entire votes at the precincts of Rock Hill and Fort Mill. It will be observed that the alleged irregularities and illegalities, by reason of the unauthorized use of duplicate registration certificates, the lack of the proper proof of the payment of taxes, and the omission to administer the oath to voters, are confined to the two precincts of Rock Hill and Fort Mill; there is no general attack upon the election as a whole based upon them. Objections to the conduct of an election assume these aspects: (1) Where the illegal voting appears to have been so general that the entire election was necessarily affected thereby, in which case the entire election is vitiated and must be annulled; (2) where the illegal voting is confined *Page 62 to only a few of many precincts, in which case the rejection of the vote of the precincts thereby affected will not necessarily vitiate the entire election, and the question whether the entire vote of the precinct affected shall be eliminated, or only the illegal votes deducted, depends upon the practicability of purging the roll of such illegal votes, and upon the further inquiry whether or not the presence of such illegal votes has produced an erroneous result in the entire election; (3) where the illegal voting has occurred in such a large number of precincts as to indicate a controlling effect upon the entire election, in which case the entire election will be annulled. As is said in the case of State v. Board, 86 S.C. 451;68 S.E., 676: "In the elections reviewed in Wright v. Board and Gunterv. Gayden, it appeared that the illegal voting was so general that the whole election was thereby affected, and, therefore, vitiated. But when the illegal voting is confined to only a few of many precincts, the rejection of the vote of the precincts thereby affected will not necessarily vitiate the entire election." The Court adds: "There may be cases, however, in which the number of precincts rejected on account of fraud or illegal voting is so large that the whole election will be declared void, even though the result at the other precincts would remain unchanged." We think that the same result would follow where the vote at the rejected precincts bears a very great proportion to the whole number of votes cast, as in the case at bar, where it appears that the vote at Rock Hill and Fort Mill constituted 80 per cent of the total. If, therefore, it has been shown that the voting at these two precincts was so permeated with illegality as to require the elimination of the entire vote there, in consideration of the immense proportion of the entire *Page 63 vote cast at these two precincts, and in analogy to the principle announced and quoted above, the entire election should be declared void. The facts as found by the board of canvassers are not open to controversy in proceedings by certiorari unless the findings are without evidence to sustain them. "It is well settled that this Court will not review the findings of fact of an inferior Court or body, on writ ofcertiorari, unless they are wholly unsupported by the evidence."Jennings v. McCown, 97 S.C. 484; 81 S.E., 963. The board has found, and there is an abundance of evidence to sustain them, the following facts in reference to the issuance of so-called duplicate registration certificates: The total number written up by Clinton, one of the board of registration, was ............ 147 Of these there were destroyed ................ 5 ____ Leaving ...................................... 142 There were issued at Rock Hill ............... 104 And at Fort Mill ............................. 38 142 ____ ==== Of those issued at Rock Hill ................. 104 There were not used .......................... 6 ____ Actually issued and used ..................... 98 ==== Of those issued at Fort Mill ................. 38 There were not used __________________________ 22 ____ Actually issued and used ..................... 16 ==== Total number actually issued and used at both precincts ................................. 114 Assuming that all 114 were issued to and used by voters who favored the bond issue, of which assumption the contestants *Page 64 cannot complain, there would remain a majority in favor of the bond issue of 332-114 = 218. The board has also found as a fact, of which there is ample support in the evidence, in reference to the certificates as to payment of taxes, that the total number issued did not exceed 100 at Rock Hill, and that there were 10 issued by bankers at Fort Mill, making a total of 110. Assuming that all 110 were issued to and used by voters who favored the bond issue, of which assumption the contestants cannot complain, there would still remain, after deducting 114 for the duplicate registration certificates, and 110 for the certificates as to payment of taxes, from the apparent majority of 332 (332-224), a majority of 108. It is alleged in the petition, and practically conceded in the report of the board, that at least one-half of the voters at Fort Mill were allowed to vote without having been sworn as required by law. At Fort Mill there were 132 votes cast. We may assume that not only one-half but all of the 132 were not sworn, and eliminate the entire vote of 97 for, and 35 against, the bond issue, a majority of 62 for the bond issue. Deducting that number from the net majority above stated of 108, and there still remains a majority of 46. All that the contestants claim, however, to be illegal is one-half of the 132 votes-66; an equal number are conceded to be legal, and they, added to the 46, increase the majority to 112. Or take the most favorable aspect of the situation conceivable under the evidence: Eliminate the majority in favor of the bond issue at Fort Mill ....................................... 62 Eliminate the votes at Rock Hill upon the questioned registration certificates ....................... 98 Allow 50 or more votes than the board estimates (100) to have been based on the questioned certificates of payment of taxes at Rock Hill ................ 150 ___ And we have a total of ............................. 310 *Page 65 Which deducted from the 332 apparent majority, still leaves a majority of 22. This is upon the assumption that all of the votes at Rock Hill were cast in favor of the bond issue, and gives the contestants, without diminution, the full benefit of the 59 votes in opposition. The evidence shows that some, at least, who used the questioned certificates of registration and payment of taxes voted against the bond issue. There is absolute unanimity in the decisions of this Court and elsewhere, that, in the absence of fraud, it is incumbent upon a contestant to show, not only that there were irregularities or illegalities in the conduct of an election, but that such irregularities or illegalities were either such as to produce an erroneous result or to leave that question in doubt. But that where the election can be purged of such improper votes and it is demonstrated that the result is the same as if they had not been cast, the election will not be disturbed. We can conceive of no method of purging that could give less offense to the contestant than to assume that all of the questioned votes were cast against him; for the greater the number cast for him, the less is the probability that the result would have been otherwise. "Unless it is expressly declared by statute that the particular act is essential to the validity of the election, or that its omission will render it void, an election which appears to have been fairly and honestly conducted will not be vitiated by mere irregularities, which are not shown to have affected the result. In the absence of fraud, the misconduct of election officers or irregularities on their part will not justify rejecting the whole vote of a precinct, where it does not appear that the result was affected thereby, even though the circumstances may be such as to subject the officers to punishment." 20 C.J., 180. "The great object of elections is to obtain the will of the people, and when that is expressed in a free and fair election, the Court will not defeat it on account of irregularities, or even illegalities, which do not appear to have affected the *Page 66 result. But when they are of such character and extent as to leave it doubtful whether the result has not been affected, and especially when it appears that illegal votes have been cast, sufficient in number to affect the result, and the polls cannot be purged of them, it would be a travesty on popular government to sustain the election." Wright v. Board, 76 S.C. 574;57 S.E., 536. "The universal weight of authority is to the effect that where the result of an election is not made doubtful nor changed, irregularities or illegalities in the absence of fraud will not cause the expressed will of the body of voters to be set aside." State v. Board, 78 S.C. 461; 59 S.E., 145; 14 L.R.A. (N.S.), 850; 13 Ann. Cas., 1133. "Unless the result of an election is changed or rendered doubtful, it will not be set aside on account of mere irregularities or illegalities." State v. Board, 79 S.C. 246;60 S.E., 699. "When it appears that enough illegal votes were cast in any election to change the result, the election must be declared void." Gunter v. Gayden, 84 S.C. 48; 65 S.E., 948. "While the vote was very close, 52 for bonds and 48 against it, it does not appear that the managers rejected more than one, possibly two, on this ground, who would have voted against bonds, hence it is not made to appear that the rule of the managers probably had the effect of altering the result." McLaurin v. Tatum, 85 S.C. 444; 67 S.E., 560. When it appears that enough illegal votes were cast in an election to change the result or make it doubtful, it will be declared void. State v. Board, 86 S.C. 451; 68 S.E., 676. "When the polls can be purged of the illegal votes this should be done, and only the illegal votes should be rejected, and the legal votes should be counted. But when this cannot be done the entire poll must be thrown out, if it appears that enough illegal votes have been cast to affect the result at such poll, or to leave it in doubt." State v. Board, 86 S.C. 451;68 S.E., 676. *Page 67 "Illegal votes where they can be eliminated from the count without affecting the result do not vitiate the election."Rawl v. McCown, 97 S.C. 1; 81 S.E., 958. "It is equally well settled that, when a sufficient number of illegal votes have been cast in an election to affect the result, and the polls cannot be purged of them, the election cannot be sustained." Jennings v. McCown, 97 S.C. 484;81 S.E., 963. "The true doctrine is that whenever the irregularity or illegality is such that the result of the election would be placed in doubt, then the election must be set aside." Callisonv. Peeples, 102 S.C. 256; 86 S.E., 635, Ann. Cas., 1917E, 469. "We merely affirm the judgment that the election was void, on the ground that it appears upon the face of the proceedings that enough illegal votes were cast of which the poll could not have been purged to have affected the result or to have rendered it uncertain." Clark v. McCown, 107 S.C. 209;92 S.E., 479. "These votes were illegal, and, as there were enough of them to have changed the result, and as the poll could not have been purged of them because it did not appear how they voted, the election was thereby vitiated." Abernathyv. Wolfe, 117 S.C. 545; 109 S.E., 275 (quoting fromClark v. McCown, 107 S.C. 209; 92 S.E., 479). If the highly prized right of voting is to be recognized, the right to have that vote counted is an essential incident of the right to vote. At most, there were not over 200 votes at Rock Hill that came within the objections of the contestants. Considering that they were all in favor of the bond issue there were left 420 votes at that precinct in favor of the bond issue, as to which no objection was interposed. The electors thus voting should not be deprived of the right to have their votes counted in the zeal to eradicate those alleged to have been illegal; they had rights as well as the contestants, and if the rights of both can be protected it should *Page 68 be done. The same is true to a lesser extent of the votes at Fort Mill in favor of the bond issue. "Voters who have done all in their power to cast their ballots honestly and intelligently are not to be disfranchised because of act of irregularity, mistake, error, or even wrongful act of the officers charged with the duty of conducting the election, which does not prevent a fair election and in some way affected the result." 15 C.J., 180. This is written in reference to those voters whose votes are in question; certainly those whose votes are not in question should not be disfranchised (which would be the effect of throwing out the entire box), on account of illegalities connected with other votes, unless it should plainly appear that the number of such illegal votes was so great as probably to have produced the result complained of, or at least have left the question in doubt. There is not the slightest evidence in the case of improper conduct on the part of the managers of election, who were advised by a most reputable attorney of the York county bar, and every circumstance indicates the desire and attempt to discharge the duties imposed upon them faithfully and fully as they understood them. The same may be said of the board of canvassers, some of whom are personally known to the Court, and who, advised by one of their number, a lawyer of the highest character and ability, have displayed every evidence of fairness. Let the petition, the return, the report of the board of canvassers with the dissenting opinion of Col. Lewis, and the decree of Judge Henry, be reported. The judgment of this Court is that the decree of the Circuit Court be reversed, and that the report of the board of canvassers be confirmed. MR. JUSTICE WATTS and MR. ACTING ASSOCIATE JUSTICE M.L. SMITH concur. MR. JUSTICE MARION disqualified. MR. CHIEF JUSTICE GARY did not participate. *Page 69