State Ex Rel. Hemingway v. State Democratic Executive Committee

The opinion of the Court was delivered by Mr. Chief Justice Gary. This is an application to the Court, in the exercise of its original jurisdiction, for a writ of certiorari, requiring the State Democratic Executive Committee, to certify and return to the Supreme Court, a true copy of all the proceedings, in the contested election of J. A. Hemingway against T. S. McConnell. The facts and the grounds upon which the petitioner seeks relief, are thus stated by one of his attorneys: “The office of county treasurer of Georgetown county, is filled by appointment of the Governor. The Governor appoints the candidate who is nominated in the Democratic primary election. J. A. Hemingway and T. S. McConnell, were candidates for this nomination, in the primary election held on August 27, 1912. On the evening of August 27, 1912, after the votes had been counted by the managers of elections, it was currently reported that T. S. McConnell, had received a few more votes than J. A. Hemingway, and that the former was probably nominated. At twelve o’clock noon, August 29, 1912, the County Democratic Executive Committee, of Georgetown county, assembled for the purpose of tabulating the returns and declaring the result of the primary, in accordance with rule 6 of the Democratic party. Both candidates were present with their respective attorneys. Before the result of the election was declared, J. A. Hemingway asked for a recount of the ballots in all the boxes, except Georgetown 1 and 2 and Andrews. The committee proceeded without objection, to make the recount. According to the manager’s return, Hemingway received 37 votes at Choppee poll, and McConnell 36 votes. The recount showed that Hemingway received 52 votes and McConnell 21 votes. This gave Hemingway a majority of 22 votes in the entire county, whereupon he was officially declared the nominee. There was no objection on the part *323 of McConnell or his attorney. Three unfolded ballots were called to the attention of the meeting by the chairman, but this fact has no bearing on the controversy. Nothing further developed, until September 9, 1912. On this date, fourteen days after the election, and twelve days after Hemingway had been declared the nominee, McConnell served his .petition, alleging fraud in Choppee poles 5 and 6. The petition set forth allegations of after discovered evidence of fraud. It alleged that 15 ballots for McConnell, had been taken from the boxes and 15 votes for Hemingway had been inserted while the boxes were in the custody of Manager Williams, before the meeting of the county executive committee. A return was filed by Hemingway, demurring to the petition on the ground, that the notice of contest had not been served within two days, after the election, in accordance with rule 7; that contestants had proper remedy by appeal, and that Hemingway had been elected and so officially declared, by the county executive committee. Thereafter on September 12, 1912, a hearing was had before the committee. There was an adjournment until September 19, 1912. The petition, return and traverse were read and considered. Affidavits as to facts and other evidence were submitted. No evidence was introduced supporting the allegations in the petition, as to the taking out of the boxes, fifteen ballots for Hemingway. The evidence purported to show sundry irregularities. Hemingway contends that no fraud was shown, but if fraud were shown, it was not sufficient tc change the result, as declared by the committee on August 29, 1912. On this date, September 19, 1912, the committee rescinded its former action on August 29, 1912, and declared McConnell the nominee. On September 21, 1912, Hemingway served his notice of appeal to the State Democratic Executive Committee, from the findings of the county committee of date September 19, 1912. On September 23, 1912, McConnell filed his notice of appeal, from the findings of *324 the County Democratic Executive Committee on August 29, 1912, in declaring Hemingway the nominee. On October 1, 1912, the State Democratic Executive Committee assembled in Columbia, considered the appeal of Hemingway, overruled the same, and affirmed the action of the County Democratic Executive Committee, in declaring on September 19, 1912, that McConnell was the nominee. The matter comes now before this Court, on a writ of certiorari. The petitioner, Hemingway, prays that the record of the case be reviewed, that the action of the State Democratic Committee be set aside, and that J. A. Hemingway be declared the nominee. The petitioner, Hemingway, contends that the action of the County Democratic Committee on August 29, 1912, in declaring him the nominee was final; that no protest or contest was filed b);- McConnell, within two days after August 29, 1912, as required by rule 7; that the contest filed later on September 9, 1912, on grounds of fraud came too late; that the county committee was then without jurisdiction of the matter, and their action of date September 19, 1912, was -illegal; that the State committee should have set aside this finding of September 19, 1912, and should have declared Hemingway the nominee.” Section 282, Code of Laws (1912), provides, that primary elections shall be governed by the rules and regulations of the political party, holding such election. Rule 6 of the Democratic party is as follows: “The County Democratic Executive Committee, shall assemble at their respective courthouses, on the morning of the second day after the election before 12 o’clock m., to tabulate the returns and declare the result of the primary, so- far as the same relates to members of the General Assembly and county officers.” * * * Rule 7 provides that the “protests and contests for county offices shall be filed within two days after the election, with the chairman of the county executive committee, and said *325 executive committee shall hear and determine the same, at its first meeting thereafter.” * * * Article VI, Constitution of the Democratic party, contains the provision, that “all contests for all nominations, including county offices at primary elections, shall be heard first, by the county executive committee of -the county, in which such irregularities may have occurred, and may be revierved by the State executive committee, whose action shall be final.” * * * If the failure of T. S. McConnell, to file his notice of contest within two days after the election, must be regarded, as jurisdictional in its nature, it nevertheless related to the person, and not the subject matter, and was waived when the said candidates thereafter, participated in the contest upon its merits. State v. Moore, 54 S. C. 556, 32 S. E. 700. In that case the Court used the following language: “It is contended, however, that the petitioners had no notice of any protest of the election, before the board of county canvassers, and, therefore, they cannot be affected by any action which said board took, in reference tO' such protest. But as a matter of fact, it appears that at least one of the petitioners, David M. Humphreys, was duly notified, for it is so alleged in the return and admitted by the demurrer. But, in addition to this, it also appears by the return, that the petitioners appeared by counsel, before the board of county canvassers, cross-examined the witnesses, and participated in the argument on the merits. In view of this, the petitioners cannot avail themselves of the fact (if it be a fact), that they were not served with formal notice of the protest. It is true that the petitioners first entered a special appearance, and objected to respondents exercising any judicial functions whatever, insisting that their duties were purely ministerial; but when such objection was overruled — properly, as we have seen — they remained and participated in the hearing and discussion of the case, on its merits. By so doing they waived any benefit of such special appearance, *326 and cannot now be heard to say, that they had no notice when, as matter of fact, they did have full notice of the action of the board, and might and should have availed themselves of their right of appeal from such action.” The question of waiver was dependent upon the facts, and it will be presumed, that the State Democratic Executive Committee, decided all facts upon which its decision necessarily rested, in favor of the respondent, which findings are not the subject of review in this proceeding; and, if there was waiver, then it conclusively follows, that the writ of certiorari cannot be granted. The petition relies upon Ex parte Sanders, 53 S. C. 478, 31 S. E. 290. In the first place, that decision was not rendered by the Supreme Court, but by Mr. Chief Justice Mclver at chambers. In the second place, the action of the county executive committee when that decision was rendered was final as to county offices, and no appeal was then allowed from its decision. The rules, however, have been changed in this respect. It is, therefore, the judgment of this Court, that the petition be dismissed. Mr. Justice Watts concurs. Mr. Justice Eraser concurs in the result.